Scott Withycombe
Perspectives Assistant
With most of the post-election media coverage focusing on voter ideology and cabinet replacement, one of the most important issues of the Presidential election has received strikingly little discussion: the future of the Supreme Court. Interestingly, the Court, which hangs in the balance between constructionist and activist justices by one vote on many critical issues, was only briefly touched on in this election in which defense and economic issues dominated the rhetoric, but in which values dominated the public consciousness. The issue has subsequently received little attention and no substantial remarks from the White House. The Court’s future, however, is undeniably one of the most important issues of the day.
The Supreme Court has played an extensive role in American history. It played a part in some of the darkest hours of the American experience, validating “separate but equal” in Plessy v. Ferguson and supporting FDR’s internment order in Korematsu v. United States. It redeemed itself in cases like Brown v. Board of Education, in which the Court called for desegregation “with all deliberate speed,” reversing the devastating legal effects of Plessy. The Court shaped modern social issues in activist decisions like Roe v. Wade, Lawrence v Texas, and Planned Parenthood v Casey. In these cases, as they arguably did in Plessy and Korematsu, the Court adopted opinions lacking any substantial constitutional reasoning, favoring progressive social ideology and activism over constructions relying on the text of the Constitution. Just as controversial opinions of the past faced reversal by later Courts, so do the cases like Roe v. Wade, which fuel the so-called “culture wars” and drive value voters to the polls, should President Bush have the opportunity to appoint new justices.
Bush will likely face three vacancies during the next four years. Considering Chief Justice William H. Rehnquist’s current medical condition, there will probably be a vacancy on the Court soon. Rehnquist is a solid conservative voice on the Court and Bush will undoubtedly replace the Chief Justice with another conservative, resulting in no significant change in the balance of the Court.
The real revolution in Supreme Court majority ideology could only come if one of the liberal justices or one of the swing voters retires.
It is widely assumed that Justice Sandra Day O’Connor will retire either with or shortly after Rehnquist. If she does, Bush will have the opportunity to change the balance on the Court on issues like abortion and sexual privacy. O’Conner, although conservative on most issues, has been more progressive on reproductive and sexual rights than her constructionist colleagues. A vacancy in O’Conner’s seat could radically alter the ideological make-up on the Court.
It is also assumed that Justice John Paul Stevens, who is 83 years old, will retire during Bush’s second term creating a third vacancy for the president to fill. Once again, as with O’Conner, Bush will have an opportunity to appoint a more conservative justice who would make the typical 5-4 constructionist block a 6-3 majority.
Appointment of conservative justices, or as President Bush refers to them, justices “who know the difference between personal opinion and strict interpretation of the law,” could lead to the reversal of several 5-4 decisions in which O’Connor or Stevens were the swing voters from the right.
What does this mean in tangible terms?
It means that Roe and similar faulty decisions will be overturned, that states’ rights will be restored, and that for some time, the Court will be dominated by a conservative majority that will have the ability to reshape American legal and social history post-Warren Court. It means that the Court will return to its proper role of applying the Constitution as it is written rather than as particular justices view it — that the Court will no longer usurp the legislative function from Congress and that the separation of powers will be strictly observed.
For the value voters that dominated the recent election, the potential for change on the Supreme Court represents the return to the traditionalism for which they voted and the restraint they wish to see in government.
For liberals and remnants of the 1960s sexual revolution, this is total disaster. Some of the precedent they have come to rely on may be destroyed at the federal level should the Court revisit many of the social issues on which previous benches were more activist.
Neither group should get too worked up yet. For the conservatives there is the Senate confirmation process, which could get nasty if Democrats decide to filibuster. While Republicans still lack the number of votes necessary to stop a filibuster, such behavior by the Democrats will not be well received by the public, which would expect efficiency in the process after electing the president and the Senate majority by considerable margins.
For liberals, all is not lost. Even if the Supreme Court overturns radical social precedents, it is not likely that all states will follow suit. Rather, either states will keep existing statutes, which are reflective of current Court doctrine, or citizens will vote on related referenda or propositions in their respective states. Reversal of certain decisions by the Supreme Court does not necessarily imply abolition, but instead a return of issues to the democratic process.
In appointing new Supreme Court justices President Bush has an opportunity to profoundly influence American history in a manner that will have effects that last longer than tax cuts or short-term fiscal policy. The resulting ideological shift from appointments will be the most profound result of the dramatic political realignment that occurred on Nov. 2, and even if Republicans were to lose the White House in the next election, the Bush appointees on the Supreme Court would preserve the legacy of Republican governance that has prevailed in recent decades.
11-18-2004