How a New Justice Could Change the Court ; If O'Connor's Successor Disagrees with Any of Her Positions, Precedents Decided by a 5-to-4 Majority Could Be Vulnerable

Article excerpt

President Bush's selection to replace retiring Justice Sandra Day O'Connor on the US Supreme Court could have a profound impact on the future direction of American law.

The question is which way, and how profound.

Top issues potentially include abortion, affirmative action, federalism, and school vouchers.

What makes the selection of a replacement for Justice O'Connor so potentially significant is her longtime role on the high court as a centrist swing voter who cast the decisive fifth vote in many major cases. She voted with the court's conservative wing supporting federalism and school vouchers, but joined her more liberal colleagues to uphold abortion rights and affirmative action.

If her successor disagrees with any of her prior positions, high- court precedents decided by a slim 5-to-4 majority could be vulnerable to reversal as new cases raising similar issues arrive at the court.

Now, as Mr. Bush begins the hard work of paring his shortlist down to a specific person, constitutional law scholars are warning against an overreaction to potential change. "The rhetoric on both sides is highly overheated," says Suzanna Sherry, a constitutional law professor at Vanderbilt University Law School in Nashville, Tenn. "It is a lot more complicated than just, 'Oh, a more conservative justice is coming to the Supreme Court. All these cases are going to get overruled.' "

Nonetheless, Professor Sherry says, "A change of justice is more than just a potential change in particular results. It is a change in the whole dynamics of the court, and a change in judicial approach."

To activists on the left, the concern is that a nominee in the mold of conservative Justices Antonin Scalia and Clarence Thomas would move the court further to the right, jeopardizing affirmative- action programs and broad civil rights rulings, and drawing the court within a single vote of overturning the abortion precedent Roe v. Wade.

Even though a conservative Republican president is making the selection, many activists on the right are worried a Bush pick may not be conservative enough. They say a nominee in the mold of former "stealth candidate" Justice David Souter would move the court sharply to the left, jeopardizing a string of federalism decisions, the school-voucher precedent, and a number of criminal-justice rulings supporting law enforcement. It would also reduce the possibility of the court reconsidering abortion and affirmative action.

But such speculation can undermine an essential purpose of a constitutional court that enforces consistency and stability in the law. Many analysts - including some of the justices themselves - have expressed concern that the increasingly partisan and ideologically driven nomination process is politicizing the court, tainting its credibility as dispassionate arbiters of the law. …