FDR's unfinished revolution

That's right. What the court said is, if you're going to be deprived of welfare benefits, and you say you qualify, you have to have a hearing. The court also said you have a right to a lawyer, at least in criminal cases and in cases where you're trying to get divorced. What else that would entail was left unclear; it hasn't come to entail much. But the court was requiring state subsidy of poor people, at least in that domain. The court also said that, if you go from one state to another, the state can't have an extended period before you can get welfare benefits or even medical services.

If the state was offering such benefits at all.

If it's offering them, that's right. The court didn't say there's a constitutional right to benefits if the state isn't offering it. So these were pretty narrow rulings. The court wasn't there yet. But it was the sort of thing where respected commentators wrote, "This is the way the court is going." The court had some pieces of at least a minimal version of the Second Bill of Rights in place. And if other justices had been appointed by Humphrey, we don't know what would have happened.

It's often said that there was amazing continuity between the Berger court and the Warren court. The Berger court expanded the right of privacy, decided Roe vs. Wade, and it didn't, in most contexts, scale back dramatically on the Warren court precedents. But this is one area where they did. The precedents that were protecting people on the bottom -- where the court was starting to recognize the right not to be discriminated against if you're poor -- those cases basically had no legs under the Berger court.

And that's because Nixon just barely beat Humphrey in 1968..

Yes, that's what did it. It's speculative to say that the court would have gone very far in Roosevelt's direction [if Humphrey had won the election]. But what's noteworthy is that there was an episode in our history, from about 1962 to about 1969, in which many of the justices showed a lot of interest in minimal welfare guarantees.

Of course, the justices Nixon appointed -- Warren Berger, Harry Blackmun, Lewis Powell and William Rehnquist -- were, on balance, not nearly as conservative as those who appear to be on George W. Bush's short list. If Nixon's appointments killed progress on the Second Bill of Rights, what can we expect if Bush wins in November? Will there be another sea change on the Supreme Court?

There could be. The most dramatic thing is that Roe vs. Wade really could be overruled. It's not likely, but it could happen if Bush is elected president. It's not quite hanging by a thread, but if he gets to appoint two or three justices, the right to privacy could be out the window. I think another thing that would be quite dramatic is that affirmative action could be abolished.

We already have a very conservative court, but it could become one that would give extremely strong protection to commercial advertising, as [Clarence] Thomas would like to do, and it could be one that would strike down parts of the Endangered Species Act and the Clean Water Act on the ground that that they're beyond Congress' power under the Commerce Clause.

Next Page: The most radical thing we could expect is the return of the "Constitution-in-Exile"

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