So in essence, your contention is that you don't believe the conservative justices would risk creating a precedent that could be used by liberal justices in the future.
That hasn't stopped them before, and it wouldn't stop them now.
My argument is you've fallen for the same pratfall most legal realists do: confusing
agreement with an opinion, with that opinion's
strength. Legal realism simply does not, and cannot, account for strength of argument, weight of precedent, and consequence of opinion. As I originally anted into the conversation:
Dred Scott was one of the most morally repugnant opinions in Supreme Court history, but that doesn't mean it was a weak opinion; if it were, it wouldn't have required two Constitutional amendments to rectify, with a jurisprudential legacy that continued for a century thereafter.
Realism is reductive; it boils down jurisprudence to a mere matter of jurists' ideologies. Before you say it, yes, legal positivism is no better in its own ways. Hence why I'm an interpretivist, but that's neither here nor there.
What is "Carolene Products footnote four"?
Not that the case matters, but it was about Congress' power to regulate the dairy industry and the Court found in Congress' favor.
Footnote four was an addendum to the opinion, authored by Harlan Stone. The default standard of review is/was rational basis, by which a law is deemed Constitutional if it is reasonably related to a legitimate government interest; under rational basis, the burden of proof is on petitioner to demonstrate the law in question is
not. In footnote four, Stone suggested that laws which facially violate fundamental rights (particularly those enumerated in the Bill of Rights), restrict political processes, and/or discriminate against "discrete and insular" minorities ought to be subject to a higher standard of review than rational basis.
In other words, it laid the groundwork for suspect classification and strict scrutiny. Suspect classification being the "discrete and insular minorities" discussed by Stone, and strict scrutiny the highest standard of review the courts can apply. Under strict scrutiny, the burden of proof is placed instead on the state to prove laws in question are the
least-restrictive means to achieve a
compelling government interest. It's in practice more complicated than that, but that's the first-year con law version.
Now, here's where my response(s) to Silvanus come back into play. Suspect classification and strict scrutiny were both introduced to American jurisprudence in
Yasui and
Hirabayashi v. United States (
Korematsu came a year later). The Court classified Japanese-Americans as a suspect class, applied strict scrutiny, and proceeded to rule Japanese-American internment was the least restrictive means to achieve compelling government interest: national security at a time of war.
Here's the problem with that: how does one overturn
Yasui, Hirabayashi, and
Korematsu without inadvertently creating precedent for eliminating suspect classification and strict scrutiny? You really can't, and those cases never actually have been overturned. Luckily, it didn't prove to be a major problem in the long run...that is, until someone rammed some passenger airplanes into a couple buildings, and the federal government got a taste for extraordinarily rendering, detaining, and torturing brown men with funny names.
US conservatives seem to have this delusion that weak federal government and strong state legislatures will result in less authoritarianism. In fact, what we're seeing is in many ways the opposite. State legislatures are prone to domination by theocratic curtain-twitchers who delight at every opportunity to use their power to make the lives of everyone they don't like miserable.
Sure, that's the line useful idiots gobble up; the reality is it's social engineering of, by, and for conservative think tanks and organizations like ALEC, to bypass the federal government and its inconvenient checks and balances, to enact their legislative will.
