Today I flew into a panic about the 2008 election.  I was catching up on my blog reading and stumbled across this post over at Scotusblog.

For those of you not inclined to plumb the depths of Supreme Court analysis, a brief summary:

1-The next President will select two or three new Supreme Court justices in his or her first term.

2-All three will come from the Court’s liberal wing.

This is disturbing in the extreme. I always knew this election would be important to the makeup of the court because, to a certain extent, every election is, and also because Justice Stevens is 87. What I did not know is that Justice Souter, at 67 a relatively young Justice, is itching to retire.

So let’s engage in a little prognostication. What would happen if a Republican wins in 2008 and he gets to pick two new Supreme Court Justices.

Even with the Democrats still in control of the Senate, the best we could hope for would be nominees only slightly to the right of Justice Kennedy, who wrote the opinion in Carhart v. Gonzales that intimated abortion restrictions are a good way to protect women from themselves.

We would then have a 2-4-1-2 split on the court. That is: two hyper-conservatives, four arch-conservatives, one conservative, and two moderates.

Granted, there are various fissures in the conservative legal establishment, but here are just a few of the potential sea changes that could come from an even more conservative court:

1-Abortion: Both Chief Justice Roberts and Justice Alito made much of their respect for stare decisis in their Senate confirmation hearings. Much of the moderate Washington cognoscenti think that they will uphold Roe v. Wade and Casey v. Planned Parenthood if it comes to it because they did not sign on to Justice Thomas’ concurring opinion in Carhart that reiterated his view that Roe and Casey were decided incorrectly.

However, there are alternate potential reasons why they did this. First, they may not have wanted to alienate Justice Kennedy, who seems to support all sorts of restrictions as long as abortion remains theoretically legal. It would certainly be more shrewd for these two justices to kill Roe and Casey with a thousand small cuts than to make a very controversial landmark decision. Second, Thomas’ concurrence hinted that he may have struck down partial birth abortion ban on grounds that Congress has no constitutional power to regulate abortion, as opposed to states who he would hold have absolute power to regulate abortion.

The Court with its current makeup will already uphold most abortion restrictions. The addition of two more conservatives could eliminate a woman’s right to choose in large swathes of the country.

2-Gay Rights: A few years ago the Supreme Court held, in a 6-3 decision, that states cannot criminalize private homosexual behavior over the vigorous dissent of Justice Scalia. Subtract O’Connor, Stevens, and Souter; add Alito and two players to be named later, and Texas may win back its right to express moral revulsion through public policy.

3-Environmental Regulation: Say what you will about abortion and gay rights, the worst thing the court will do is turn those issues into state by state battles. A truly conservative court, however, could make environmental regulations almost prohibitively expensive for the states as well as the federal government.

Here’s why: when the government takes private property for public use it must compensate the owner under the 5th Amendment. Most of us think of the government taking your house and then building bridges and highways, but the government can also take land by regulation. However, under current law, a landowner is only entitled to compensation if he is deprived of any and all beneficial use of his land, a fairly high hurdle. For example, if a developer buys a tract of land on the coast with the intention to build condos and the land is then rezoned as unbuildable due to environmental concerns, that developer is entitled to compensation.

Some conservative jurists and law professors think that regulatory takings law should extend to the percentage deprivation of use involved in any regulation. The first law to become unenforceable under this doctrine would be the Endangered Species Act as the government would need to compensate every landowner with an endangered animal on his land who made noises that he’d rather do something else with it. And it’s not too much of a stretch to see similar logic applied to the Clean Air Act and Clean Water Act. And the worst part about this is that any such ruling would apply to the states as well as the federal government.

4-Executive Power: Up until recently my Constitutional Law professor did not even teach Article II because it was considered completely settled law and not terribly relevant. Then came Bush II who really seems to think that if the President does something it’s not illegal. The difference between Bush II and Nixon, who first came up with that pithy little phrase, is that Bush II is dedicated to appointing judges who agree with him on this. Roberts and Alito may ultimately vote to uphold Roe v. Wade, but they will always vote for expansive Presidential powers, and this may be the greatest threat the Republic has faced since the Civil War.

Luckily, for now, only Justice Thomas will team up with Chief Justice Roberts and Justice Alito on this issue. Justice Scalia, for all his foibles, is not political, he’s just really conservative, and when it comes to trampling on rights explicitly laid out in the Constitution he’ll defend them tooth and nail.

However, subtract Stevens and Souter, and add another Roberts and another Alito, and we have a true recipe for disaster. Executive power, unlike abortion, is not a very sexy issue. There are no pressure groups trying to overturn or uphold Youngstown Sheet & Tube Co. v. Sawyer. Thus, while Senate Democrats may be able to Bork potential justices who are hostile to abortion rights, it is unlikely that they will be able to muster the votes to refuse consent to a justice who thinks the President has broad implied powers.

Another Republican President (especially a President Giuliani, who may be pro-abortion and pro-gay, but is as authoritarian as they come) might therefore be in a position where the loose restraints placed on him by the Hamdan and Hamdi decisions could be obliterated. In a never-ending war on terror a President could then conceivably have the authority to name anyone an enemy combatant and hold them incommunicado indefinitely, even American citizens. If we are subject to another terrorist attack, which most experts will tell you is not a matter of if, but of when, maybe the next President will just declare martial law.

Am I being alarmist? Of course I am. But while this scenario may be unlikely it is within the realm of possibility if a Republican wins the 2008 election. The foregoing is just a short list of ways an even more conservative Supreme Court could hurt this country. It is not exhaustive. I did not even touch on defendants’ rights, privacy rights, or free speech rights.

And just to be clear, if you vote for Mayor Mike because he’s competent and non-ideological and a Republican wins, you’re just another Nader voter.