Whoever wins the November presidential election will have an excellent chance at reshaping the Supreme Court of the United States and the direction it takes on a broad array of social and political issues. Or not, depending on whom you talk to.
Most high-court observers believe the next administration will have the chance to make at least one or two, or possibly three, justice nominations. Many of the issues that come before the court, such as “partial-birth” abortion, affirmative action, government vouchers for religious schools, and political gerrymandering, are decided on razor- thin 5-4 majorities, so any replacement of a justice–either a liberal with a conservative, a conservative with a liberal or a swing vote with either a liberal or a conservative–could pivot the court sharply to the left or right.
Supreme Court justices are nominated by the president and confirmed by the Senate. Objectively, the Supreme Court is made up of three conservatives, four liberals, and two swing votes, one a moderate, the other a moderate conservative.
Here’s the breakdown:
— Chief Justice William Rehnquist, the court’s grand ayatollah, took his seat as an associate justice in 1972 after being nominated by President Richard Nixon. He was elevated to chief justice by President Ronald Reagan in 1986.
Rehnquist is a staunch supporter of federalism, making sure that the states aren’t deprived of their traditional roles by the federal government. He reliably votes with the conservative bloc, though he is probably the least conservative of the conservatives.
Rehnquist’s retirement has been predicted each year for the past several years by a number of court-watchers. He will be 80 on October 1. His once robust frame has become more frail, and he seems to break a new bone with each passing term. But Rehnquist’s mind is still sharp as a tack, and many justices serve actively until they are about 85 or so.
Whether he retires in the next four years probably will be determined by whether President George W. Bush or a putative President John F. Kerry gets the chance to replace him.
— Justice Antonin Scalia is a fellow conservative and the conservative bloc’s intellectual leader. He strays off the conservative reservation, however, in cases involving free speech and the right to trial by jury.
Scalia was nominated by Reagan in 1986, and no one believes he is going anywhere. The chances of the pugnacious Scalia, 62, stepping down over the next four years are about equal to those of ice cubes surviving in hell. Many conservatives would like to see Scalia succeed Rehnquist, but he is the symbol of angry conservatism to many Democrats, and there would be blood on the Senate floor if Scalia were nominated as chief justice.
— Justice Clarence Thomas is the last of the three true conservatives. The only black justice, he and Scalia usually vote in lockstep. President George H.W. Bush nominated him to the court in 1991. At 56, he is the youngest of the justices.
Will he step down from the court? After 13 years as a justice he still seems uncomfortable in the robes. But he is unlikely to retire.
One Thomas biographer has Bush replacing Rehnquist with Thomas in a second term. I can find no one at the Supreme Court who actually believes that. Remember the odds on those ice cubes?
— Justice John Paul Stevens is the aging liberal lion of the court. Appointed by President Gerald Ford in 1975, Stevens started out as a conservative but migrated to the left. He is in excellent health and his mind is superb.
But he is the court’s oldest member at 84. Like Rehnquist, his retirement over the next four years probably depends on who is president. Traditionally, justices step down when the party of the president who nominated them again controls the White House, but Stevens might break that mold.
— Justice David Hackett Souter was the elder Bush’s “stealth” candidate for the Supreme Court in 1990. Democrats accused Bush of trying to sneak a radical conservative onto the court, since not much was known about Souter. The incoming justice proved everyone wrong, and has been a solid liberal from the get-go. A 64-year-old bachelor, he is expected to age gracefully on the court for some time to come, like a fine wine or cheese.
— Justice Ruth Bader Ginsburg was appointed by President Bill Clinton in 1993. But all through her career the diminutive Ginsburg has been a fighter for women’s rights. She argued the concept of sex discrimination into law in a series of brilliant arguments before the Supreme Court in the 1970s.
Ginsburg has thoroughly recovered from the colon cancer that plagued her a few years ago. At 71, she is not expected to retire soon. She can be friendly or glacially chilly. The joke at the Supreme Court is that if Rehnquist steps down and Ginsburg is nominated to replace him, there would be seven more quick resignations.
— Justice Stephen Breyer was Clinton’s second and last high-court appointment, nominated in 1994. Breyer is a lean and active 64. He is also considered the least liberal of the four liberals.
Don’t look for Breyer to retire soon. He was chief judge of the 1st U.S. Circuit in Boston before being nominated to the high court. He has excellent contacts in the Senate. If Kerry becomes president and Rehnquist steps down, expect Breyer to be on a very short list for chief justice.
— Justice Anthony Kennedy, a moderate nominated by Reagan in 1988, is one of the court’s two swing votes. In other words, if he decides to vote with the liberals, he can form a majority of at least five, but he’s more comfortable leading a 6-3 majority. At 68, he is in excellent health.
At one time, Kennedy was believed to be campaigning for Rehnquist’s job, but his two majority opinions defending the rights of homosexuals has made him less attractive to Republican conservatives. He also supports abortion rights, though he would allow the states to outlaw “partial birth” abortions.
— Justice Sandra Day O’Connor is a moderate conservative, and if she steps down it would be the judicial equivalent of an earthquake. Replacing her with either a consistent conservative or liberal would affect the majorities on a broad range of issues.
She was nominated as the first woman justice by Reagan in 1981. Like Rehnquist, the 74-year-old O’Connor has been the subject of retirement rumors for years. Simply knowing that there would be one heck of a fight to replace her may have acted as a deterrent.
So there you have it. Rehnquist, O’Connor, and Stevens, the oldest justices, are the popular choices for retirement during the next four years. Except for Todd Gaziano, the canny executive director of the Center for Judicial and Legal Studies at the conservative Heritage Foundation. “People who claim to know that there are going to be Supreme Court resignations are lying,” Gaziano said. He added that for two election cycles, he’s been hearing about imminent “multiple resignations,” none of which has occurred.
“It is somewhat more likely that there might be a resignation or a death on the court within the next four years, but that’s because they’ve been serving together record time,” Gaziano said.
There have been no vacancies on the Supreme Court for a decade, the longest time without one since the middle of the nineteenth century. As for a vacancy in the next four years, “I don’t think it’s going to happen,” Gaziano said. All the justices are “quick witted. It’s a collegial court most of the time, except for the [5-4] Bush v. Gore decision” that ended the Florida presidential recount in 2000. “Working on the court actually keeps people alive and healthier longer.”
Whether Kerry or Bush wins in November won’t affect Rehnquist’s seat, he said. The chief justice “is probably less likely to retire during a Democratic administration, because he would honor the tradition” of resigning when the party that was in power at his appointment controls the White House.
And if he does retire during a second Bush administration, his conservative replacement would not change the court that much, he added.
“O’Connor’s the most powerful woman in the universe,” Gaziano said, “and why would she want it to be otherwise?”
As for Stevens, he is in excellent health and can do much of his work from his Florida home.
Gaziano also doesn’t put much stock in a changed court reversing Roe v. Wade, the landmark 1973 decision recognizing a woman’s right to an abortion.
Support for Roe remains at 6-3 on the current court, Gaziano said, and that includes Kennedy, even if he did vote to uphold state bans on “partial birth” abortions.
Besides, with the Senate so evenly split and the Democrats using what Gaziano calls “unconstitutional filibusters” to block some of Bush’s more conservative nominees, neither President Bush nor President Kerry “is likely to get what he wants”–a true conservative or liberal to fill a vacancy on the Supreme Court.
On the other end of the political spectrum, Nan Aron, president of the liberal Alliance for Justice takes the more conventional view. The group was instrumental in blocking several of Bush’s judicial nominees. “Many predict there will most likely be several vacancies on the Supreme Court over the next several years,” Aron said. “It’s been over 10 years since we’ve had a vacancy. Most predict the next president will have an opportunity to choose several Supreme Court justices.”
Aron also thinks Rehnquist, O’Connor, and Stevens will be the most likely to step down, “given the ages of those justices.”
For her and many others, the possible vacancies make the upcoming presidential election that much more important. “I think this election will be pivotal for the future of the Supreme Court, particularly given the 5-4, 6-3 decisions on critical issues,” Aron said. “This election could well set the future of the Supreme Court for the next 40 years.”
(c) 2004 United Press International