Electing the Supreme Court

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

More than the White House, the future of the U.S. Supreme Court and constitutional law are at stake in November's balloting.

An unprecedented 10 years have elapsed since the last vacancy was filled by former President Clinton's appointment of Stephen Breyer. The winner of the impending presidential sweepstakes will likely appoint from one to three new justices. Chief Justice William Rehnquist and Associate Justices Sandra Day O'Connor and John Paul Stevens are the most probable retirees. The new appointees will prove decisive in constitutional interpretation for decades, far beyond the tenure of the president who appoints them.

Power attracts, and the Supreme Court's power has risen enormously since its origins in 1789. The justices enjoy life tenure under Article III of the Constitution, but most have left the bench before rigor mortis. The resignations and retirements have become less frequent, a tacit recognition of the mushroomed Supreme Court esteem and prominence in constitutional law. Thus, the first chief justice, John Jay, disparaged the court as an "inauspicious" institution, earmarked by few cases, disgruntled personnel, and lack of public honor and understanding. During his brief six-year tenure, Jay devoted one year to a diplomatic mission to Great Britain, and twice contested the governorship of New York. He captured the post on the second attempt, and cheerfully resigned the court.

Associate Justice Gabriel Duval resigned in 1835, having contributed but two words to constitutional law: "I dissent." In contrast, the incumbent nine Supreme Court justices have served an average of 18 years. The last four retiring justices sat an average of more than 28 years. Neither scholars, lawyers nor the public ever wished the terms were longer.

Judicial philosophy explains nine-tenths of a justice's votes. Time and custom have come to accept three discrete brands as legitimate. The first searches for the original meaning of the Constitution. The second searches for a political compromise between contesting interpretations. The third searches for a construction that corresponds with contemporary standards of decency that flourish among intellectuals.

At present, Chief Justice Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas espouse the first brand, Associate Justices O'Connor and Anthony Kennedy the second, and Associate Justices Stevens, David Souter, Ruth Bader Ginsburg, and Breyer the third. Constitutionally incoherent rulings that sow more doubts than they resolve have been the result, with Justices O'Connor and Kennedy characteristically casting the tipping votes. Exemplary was the 5-4 affirmative action opinion in Grutter vs. Bollinger (2003) by Justice O'Connor, which sustained racial preferences in university admissions, but plucked a 25-year limit from the sky as a political compromise for ending violations of the equal protection clause of the Fourteenth Amendment. …