EXACTLY WHAT ARE CONSERVATIVE JUDGES CONSERVING?

Having used these platitudes to snooker enough members of the Senate Judiciary Committee to win their lifetime seats on the nation’s highest Court, they are now to free to join their two ideological brothers – Justices Antonin Scalia and Clarence Thomas – to form the solid four in five-to-four decisions. The fifth brother is Justice Anthony Kennedy, who was expected by some to stand in the “middle ground” so often occupied by now retired Justice Sandra Day O’Connor.

But the folly of that expectation should have been clear when Justice Kennedy, in his partial birth abortion opinion, paternalistically cautioned that upholding this surgical procedure might cause women to do things they might later regret. Someone needs to tell Justice Kennedy the 19th Century is over!

So what exactly are these so-called Conservatives conserving? The interests of the richest and most powerful among us? The idea that women need daddies to help them reach rational decisions? The integrity of the Constitution and the decisions of lower courts? The Constitutional glue of precedent?

There are indeed times when precedent impedes progress and obstructs justice. That was true when the Supreme Court of Chief Justice Warren Burger overturned a half-century of Plessy v. Ferguson “separate but equal” racial doctrine to rule that separate could never be equal.

Then, and at most times in our country’s history, overturning precedent has been in the service of increasing freedom for the least of us. This Court term has seen a 180-degree turn away from that proud tradition. It has resulted in less, not more, freedom.

Conserving the freedoms of the least of us seems to be what Conservatives have forgotten.

Today’s Supreme Court makes you wonder how Conservatives define “judicial activism.”

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