The last time liberals controlled a majority of the US Supreme Court was 53 years ago -- June 23, 1969.
That's when Chief Justice Earl Warren retired upon the confirmation and swearing-in of his successor, Warren Burger.
Since then, liberals have engaged in a constitutional strategy of getting to five justices -- tailoring their arguments to the court's "swing" justice -- whether it was Potter Stewart, Lewis Powell Jr., Sandra Day O'Connor or Anthony Kennedy. Liberals had no constitutional theory other than finding a fifth vote to protect the rights of minorities and women.
Conservatives, on the other hand, have spent several decades developing a constitutional theory -- originalism (interpreting the Constitution based on the original intent of the drafters or on the original public meaning at the time of the provision's enactment) -- designed to roll back the New Deal administrative state and to overturn the Warren court's precedents protecting minority or privacy rights.
As the leaked draft opinion in Dobbs v. Jackson overturning Roe v. Wade should make abundantly clear, the liberal search for a swing vote on a 6-3 conservative court is a fool's errand. The democratic political process -- suspending the filibuster and passing a federal law preventing the states from abridging abortion rights -- is their only hope.
In that vein, perhaps liberals should reconsider a constitutional theory that many of them championed for the first half of the 20th century yet abandoned...
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