What's At Stake

     From Talking Points Memo (TPM) (emphasis added):

A potential Mitt Romney presidency carries huge implications for the Supreme Court that have conservatives excited and progressives fearful about the future. ...

 Replacing even one of the liberal justices with a conservative, legal scholars and advocates across the ideological spectrum agree, would position conservatives to scale back the social safety net and abortion rights in the near term. ...

Roger Pilon, director of the libertarian Cato Institute’s Center for Constitutional Studies and a member of the Federalist Society, told TPM that one more solid conservative vote would pave the way for “fundamental shifts on the Court” toward “a revival of greater protection for economic liberty and a direct assault on the modern regulatory state.”

“If Romney were to appoint [conservative] justices and lower court judges, then we would see greater protection for economic liberty and greater scrutiny for regulation — whether they be environmental regulations, regulations for property rights, regulations for affirmative action, regulations of all sorts,” Pilon said. “That to my mind would be a return to the Constitution as it was originally understood prior to the New Deal constitutional revolution. And that is basically what the Tea Party movement has called for.”

The implication is that the Court would likely “chip away” at Congress’ power to compel states to participate in programs like Medicaid, and at the federal government’s power to erect national programs like Medicare and Social Security, Pilon says. “I expect that a Romney-appointed court would be more sympathetic to efforts to change the Medicare and Medicaid [and Social Security] programs because they’d come from that school of thought that says government has limited power.” ...

Randy Barnett, a constitutional law professor at Georgetown University and a leading architect of the legal challenge to the Affordable Care Act, told TPM that attacking the legal premise of Medicare and Social Security (which rest on the Constitution’s rarely questioned powers to tax and spend) would be “a much longer-term project.” ...

Cato’s Pilon believes that replacing one liberal justice with a conservative could pave the way for a slow return to the Lochner Era — a pre-New Deal period when the Supreme Court invalidated minimum wage and child labor laws as unconstitutional. ...