How Bush and Obama Will Shape the Supreme Court
Let the record show that in two straight posts have I passed up opportunities to write titles making puns on the names Specter and Souter. I initially wasn't planning to blog about the retirement of Justice David Souter from the U.S. Supreme Court, because I don't have a lot of insightful analysis about any of the frontrunners President Obama is considering for his replacement. I can't venture a guess whether the next Justice will be male or female; white, black or Hispanic. It's not entirely clear to me whether Obama's choice will be a true liberal or more of a pragmatic centrist, or what the finer points of his or her legal philosophy will be. While conservatives have taken great pains to paint Justice Souter as a liberal, he's actually very much a centrist by historical standards. He is only "liberal" in comparison to the court's conservative wing of Justices Roberts, Scalia, Thomas and Alito, who comprise the most profoundly conservative bloc of judges to sit on the court since at least the New Deal Era.
I can safely predict three things about the next Supreme Court Justice: 1) the Justice will be ideologically aligned with the court's centrist/liberal wing, and will therefore be categorized as a liberal in the eyes of the press and the public, no matter what his or her specific judicial philosophy is, 2) the Justice will be appointed by Barack Obama and 3) this will not be the last Justice appointed by Obama. The confluence of these things suggest that a major shift may occur in the way the general public views both the Supreme Court and the way it is shaped by Presidential politics.
Conservatives have spent much of the last 15-20 years railing against what they perceive to be an "activist" and "liberal" Supreme Court. ("Activist judge," by the way, is a term that has no meaningful definition, and is merely an epithet for any judge with whom the speaker disagrees.) The unspoken subtext of the criticisms is that the Court is also a "Democrat" one. However, since President Gerald Ford appointed Justice John Paul Stevens to the Court in 1975, there have never been less than seven Republican appointees on the court. For a while in the early 90s, eight of the nine Justices on the Court were appointed by Republicans. For the last 35 years, then, the Court has been dominated by Republicans, although not necessarily ones that today's fundamentalist and hyper-partisan conservatives appreciate. Stevens and Souter, who was appointed by the first President Bush, are both part of the court's "liberal" wing. (When Stevens was first appointed, he fell within the moderate to conservative wing of the Court of that time, which gives some idea how far to the right the court has shifted in the intervening years.) Justice Anthony Kennedy and former Justice Sandra Day O'Connor, both appointed by President Reagan, are considered moderates who side with the liberals on questions of abortion.
To illustrate, one of the most important Supreme Court cases concerning abortion is Planned Parenthood v. Casey. That case largely upheld Roe v. Wade, but also altered the law in some ways. To that extent, Casey and not Roe is actually the law of the land concerning abortion. The case was decided in 1992, when there was only one Justice appointed by a Democratic President (Byron White, who was actually part of the Court's anti-Roe wing). Thus, Roe was upheld entirely with Republican votes. The plurality opinion was written by Souter, O'Connor and Kennedy. Thus, whatever one's feelings about the liberality of the Court, it could hardly be painted as a partisan matter, or something for which Democrats were at all responsible.
Now Souter, the Republican appointee, is retiring, to be replaced by a Justice possibly no more or less liberal, but appointed by Barack Obama. Stevens, the eldest Republican appointee, is 88 years old, and speculation is rampant that he too will soon step down and allow Obama to choose his replacement. Kennedy, the moderate (up to a point, at least) Republican, is 72. Even if Obama is elected to two terms--and I strongly suspect he will--Kennedy could, if he chose, easily serve to the age of 80 and into the next Administration.
Or he might very well not. In which case, there would be a cleavage within the Court as vast as has been seen in a long time. The Court, in such a case, would consist of four highly ideological conservatives appointed by Republicans, and five liberals or moderate pragmatists appointed by Democrats. (The two remaining Justices, Ruth Bader Ginsburg and Stephen Breyer, are both liberals appointed by President Clinton. If either chose to retire during Obama's administration, it would not much change the above mentioned analysis.) In such a case, we could expect to see a lot of 5-4 opinions with the blocs on each side being very cohesive and very far apart from each other ideologically. What this would do to public perception of the Court is not easy to predict, but my concern is that it will not be for the better. Antagonism between the two blocs may exacerbate perceptions of partisanship.
This scenario may not come to pass. Justice Kennedy may sit on the Court for another decade or more. Obama may wind up appointing a replacement for one of the four conservative Justices. None of them are likely to voluntarily create such a situation, but particularly with Justice Scalia at 73 years old, it's at least a fathomable possibility. But if it does come to pass, the conservative pillorying of the Court is likely to take a more explicitly partisan air. So it's important to understand the larger context. So long as only the moderate and liberal Justices leave the Court, the Court is unlikely to undergo any significant ideological change, no matter who Obama appoints. The Court eight years from now, which may be numerically controlled by Democratic appointees, is likely to be very ideologically similar to the Court today, which is dominated by Republican appointees.
That, then, is a good metric of how far the judicial philosophy of the Republican Party has changed in the last 20 years. My title suggests that George W. Bush would be partly responsible if such a vast partisan chasm cleaved the Court. That's not just because Bush appointed two aggressively conservative Justices. It's that, despite the surfeit of Republican appointees on the Court, there wasn't a long line of Justices eager to let Bush name their replacement. Chief Justice William Rehnquist passed away. I do not profess to read Justice O'Connor's mind, but the fact that she saved her retirement until just after the hotly contested 2004 election suggests to me that it was not deeply important to her that Bush choose her replacement. Conversely, I expect to see a stream of openings, possibly as many as five, in Obama's first term. If that happens, the new Supreme Court will be profoundly influenced by Barack Obama. But it will also be the product of a sea change in judicial philosophy that had nothing to do with him at all. And while I think that the legal decisions of such a Court would follow a pattern of appropriately and judiciously applying the Constitution, the potential for widespread rancor is concerning.
I can safely predict three things about the next Supreme Court Justice: 1) the Justice will be ideologically aligned with the court's centrist/liberal wing, and will therefore be categorized as a liberal in the eyes of the press and the public, no matter what his or her specific judicial philosophy is, 2) the Justice will be appointed by Barack Obama and 3) this will not be the last Justice appointed by Obama. The confluence of these things suggest that a major shift may occur in the way the general public views both the Supreme Court and the way it is shaped by Presidential politics.
Conservatives have spent much of the last 15-20 years railing against what they perceive to be an "activist" and "liberal" Supreme Court. ("Activist judge," by the way, is a term that has no meaningful definition, and is merely an epithet for any judge with whom the speaker disagrees.) The unspoken subtext of the criticisms is that the Court is also a "Democrat" one. However, since President Gerald Ford appointed Justice John Paul Stevens to the Court in 1975, there have never been less than seven Republican appointees on the court. For a while in the early 90s, eight of the nine Justices on the Court were appointed by Republicans. For the last 35 years, then, the Court has been dominated by Republicans, although not necessarily ones that today's fundamentalist and hyper-partisan conservatives appreciate. Stevens and Souter, who was appointed by the first President Bush, are both part of the court's "liberal" wing. (When Stevens was first appointed, he fell within the moderate to conservative wing of the Court of that time, which gives some idea how far to the right the court has shifted in the intervening years.) Justice Anthony Kennedy and former Justice Sandra Day O'Connor, both appointed by President Reagan, are considered moderates who side with the liberals on questions of abortion.
To illustrate, one of the most important Supreme Court cases concerning abortion is Planned Parenthood v. Casey. That case largely upheld Roe v. Wade, but also altered the law in some ways. To that extent, Casey and not Roe is actually the law of the land concerning abortion. The case was decided in 1992, when there was only one Justice appointed by a Democratic President (Byron White, who was actually part of the Court's anti-Roe wing). Thus, Roe was upheld entirely with Republican votes. The plurality opinion was written by Souter, O'Connor and Kennedy. Thus, whatever one's feelings about the liberality of the Court, it could hardly be painted as a partisan matter, or something for which Democrats were at all responsible.
Now Souter, the Republican appointee, is retiring, to be replaced by a Justice possibly no more or less liberal, but appointed by Barack Obama. Stevens, the eldest Republican appointee, is 88 years old, and speculation is rampant that he too will soon step down and allow Obama to choose his replacement. Kennedy, the moderate (up to a point, at least) Republican, is 72. Even if Obama is elected to two terms--and I strongly suspect he will--Kennedy could, if he chose, easily serve to the age of 80 and into the next Administration.
Or he might very well not. In which case, there would be a cleavage within the Court as vast as has been seen in a long time. The Court, in such a case, would consist of four highly ideological conservatives appointed by Republicans, and five liberals or moderate pragmatists appointed by Democrats. (The two remaining Justices, Ruth Bader Ginsburg and Stephen Breyer, are both liberals appointed by President Clinton. If either chose to retire during Obama's administration, it would not much change the above mentioned analysis.) In such a case, we could expect to see a lot of 5-4 opinions with the blocs on each side being very cohesive and very far apart from each other ideologically. What this would do to public perception of the Court is not easy to predict, but my concern is that it will not be for the better. Antagonism between the two blocs may exacerbate perceptions of partisanship.
This scenario may not come to pass. Justice Kennedy may sit on the Court for another decade or more. Obama may wind up appointing a replacement for one of the four conservative Justices. None of them are likely to voluntarily create such a situation, but particularly with Justice Scalia at 73 years old, it's at least a fathomable possibility. But if it does come to pass, the conservative pillorying of the Court is likely to take a more explicitly partisan air. So it's important to understand the larger context. So long as only the moderate and liberal Justices leave the Court, the Court is unlikely to undergo any significant ideological change, no matter who Obama appoints. The Court eight years from now, which may be numerically controlled by Democratic appointees, is likely to be very ideologically similar to the Court today, which is dominated by Republican appointees.
That, then, is a good metric of how far the judicial philosophy of the Republican Party has changed in the last 20 years. My title suggests that George W. Bush would be partly responsible if such a vast partisan chasm cleaved the Court. That's not just because Bush appointed two aggressively conservative Justices. It's that, despite the surfeit of Republican appointees on the Court, there wasn't a long line of Justices eager to let Bush name their replacement. Chief Justice William Rehnquist passed away. I do not profess to read Justice O'Connor's mind, but the fact that she saved her retirement until just after the hotly contested 2004 election suggests to me that it was not deeply important to her that Bush choose her replacement. Conversely, I expect to see a stream of openings, possibly as many as five, in Obama's first term. If that happens, the new Supreme Court will be profoundly influenced by Barack Obama. But it will also be the product of a sea change in judicial philosophy that had nothing to do with him at all. And while I think that the legal decisions of such a Court would follow a pattern of appropriately and judiciously applying the Constitution, the potential for widespread rancor is concerning.
posted by Ithakid | 8:13 AM
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