“Courts of justice cautiously abstain from deciding more than what the immediate point submitted to their consideration requires.”
—Mr. Justice Nicholl
In what was probably the most laudable achievement of his administration, President George W. Bush placed on the Supreme Court two justices, Chief Justice John Roberts and Associate Justice Samuel Alito, who believe that judges are not supposed to make it up as they go along. We now have a President who has made clear that his beliefs are different. Barack Obama has said that he wants to place judges on the bench who understand what it’s like to be a single mother or a member of a minority. He has signaled, in other words, that he believes the job of the courts is to ameliorate the lot of the less fortunate. For him, and for his friends and advisors—Prof. Cass Sunstein of Harvard, one of Obama’s former colleagues at the law school of the University of Chicago and a likely choice for the Supreme Court, for example—justice is not supposed to be blind but a handmaiden in “spreading the wealth,” following the policies that Obama famously outlined to Joe the Plumber.
Those who argued for the passage of the U.S. Constitution in 1787-89 did so because they believed the state legislatures were failing to enforce the basic rules of private...