The Next Supreme Court Majority ; with Several Justices Likely to Retire, the Next President May Have A

By Warren Richey, writer of The Christian Science Monitor | The Christian Science Monitor, January 2, 2000 | Go to article overview
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The Next Supreme Court Majority ; with Several Justices Likely to Retire, the Next President May Have A

Warren Richey, writer of The Christian Science Monitor, The Christian Science Monitor

The 2000 presidential election is emerging as a potential watershed event that may redraw the composition of the US Supreme Court and set a national agenda that will influence Americans for generations to come.

It will involve political, ideological, and legal battles over the full range of hot-button issues, including abortion, school prayer, affirmative action, school vouchers, and the federal-state power balance.

Estimates by both Democratic and Republican candidates are that two to five justices may step down in the next four years. Such a wholesale exodus from the bench would be unprecedented in Supreme Court history, where the trend has been toward aging justices clinging to their powerful lifetime appointments for as long as possible.

But with the court precariously balanced with 5 to 4 votes on a wide range of national questions, a single appointment could immediately and substantially change the course of constitutional law and radically alter America's future, legal analysts say.

"There is no question but that the Supreme Court is one of the larger and more significant prizes in the presidential election," says Douglas Kmiec, a constitutional-law professor at Pepperdine University in Malibu, Calif. "If you look at the present court's predisposition, they are uniformly 5 to 4. Both sides have a great deal to gain or lose by the composition of the third branch."

No retirement announcements have been made, but speculation among court watchers is that Chief Justice William Rehnquist may choose to step down should a Republican win the presidency in November. Similar speculation has Justice John Paul Stevens retiring if a Democrat wins.

It is impossible to know who each of the candidates might appoint, if elected, but public statements offer clues as to what type of candidate they might favor.

For instance Texas Gov. George W. Bush has said he would seek out justices in the same mold as Antonin Scalia and Clarence Thomas, the two most conservative justices on the court. Even a single appointment along those lines, replacing a more liberal justice like Stevens, would substantially embolden the court's federalism decisions and could lead to landmark opinions in affirmative- action, school-voucher, and school-prayer cases.

Arizona Sen. John McCain also names Justices Scalia and Thomas as models. But he adds to the list Chief Justice Rehnquist and Justice Sandra Day O'Connor, who hails from Senator McCain's home state and supported the court's abortion decision in the landmark Roe v. Wade in subsequent, affirming cases.

Many legal analysts aren't taking the Bush and McCain references to Scalia and Thomas too seriously. They say such statements are attempts to appeal to conservative voters during the Republican primary, and that suggested appointees may grow more moderate in the general election.

Court's shift to the right

On the Democratic side, candidates are using the prospect of Supreme Court appointments to light a fire under liberals who watched the court grow more conservative in recent decades.

"In 1975, if someone predicted that John Paul Stevens would be the most liberal justice on the Supreme Court, people would have laughed, because when he came on the court he was considered a moderate conservative," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst.

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