Peering into the High Court's Future

The World and I, October 2004 | Go to article overview

Peering into the High Court's Future


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. …

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