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Appointing New Justices

Tomorrow's New York Times Magazine has an excellent piece on the future of the Supreme Court that provides a sober context for understanding what is likely to happen with new appointments to the bench:

"Supreme Modesty"

by Jeffrey Rosen

At the moment, liberals are afraid, very afraid. They fear that two Supreme Court appointments by President Bush could transform America for decades to come. And they fear that President Bush will accomplish this transformation by replacing Sandra Day O'Connor and, eventually, William Rehnquist with hard-core conservatives in the mode of Antonin Scalia and Clarence Thomas. A hypothetical worst case for liberals might be a multicultural twofer: the appointment of Judge Janice Rogers Brown, an African-American libertarian who makes Thomas look mild, and Attorney General Alberto Gonzales, who may well surprise his right-wing critics by becoming a reliable conservative on the bench.

But even if the court is, in fact, transformed, the consequences might be far less severe than liberals imagine. To begin with, most of America's legal business does not involve the court at all. The justices decide very few cases -- an average of only 82 a year during the past 10 years -- and most of them are not politically divisive. Between 1994 and 2003, 36 percent of the court's opinions were unanimous, as opposed to only 21 percent that were decided by a 5-4 vote. What's more, if the Supreme Court overruled Roe v. Wade or its school-prayer decisions tomorrow, abortion wouldn't become illegal across America, and prayer wouldn't become mandatory. Instead, the states and Congress would have the power to regulate abortion or to allow prayer if they chose to do so. That means that the most controversial questions in American life would ultimately be settled in the court of public opinion, regardless of what the Supreme Court says.

Of course, some of the court's closest decisions involve hot-button issues, and they could indeed go the other way if the new justices follow in the path of Scalia and Thomas. The most immediate change might involve affirmative action: two years ago, O'Connor wrote a 5-4 majority opinion upholding affirmative action in law-school admissions; her successor might tilt the court in the opposite direction. But even if the court voted to strike down affirmative action in higher education, it is hardly obvious that affirmative action would end in a dramatic stroke. When the court, with O'Connor's blessing, questioned the constitutionality of affirmative action in public contracting in 1995, political support for affirmative action in the Clinton and Bush administrations and in Congress ensured that many federal contracting set-asides continued anyway, with only slight revisions.

The ultimate liberal nightmare is that the new Bush court might overturn Roe v. Wade. But if Rehnquist retires next, Bush will need three Supreme Court appointments, not two, to overturn Roe. For the sake of playing out the liberal nightmare, however, imagine that Roe, in fact, was overturned. The world still wouldn't come to an end for liberals. Since two-thirds of Americans in polls have long said that abortion should be legal during the first three months of pregnancy, only the most conservative states -- Louisiana and Utah, for example -- might try to pass new restrictions on early-term abortions. And in the event that a handful of states succeed in passing new early-term bans, or reviving old ones, the national backlash could split the G.O.P. apart at the seams, causing sizable numbers of pro-choice Republicans to desert their party. Karl Rove understands this, and when asked whether Roe should be overturned, he has dodged the question.

The fact that Bush may need three Supreme Court appointments to overturn Roe (and to resurrect school prayer) suggests that liberals should keep some of their powder dry for the truly defining battle over the court, which will occur if and when a liberal justice retires. But what if Bush gets three retirements and manages to appoint three Clarence Thomas epigones to the court? Thomas is the court's most radical justice, and if his views prevailed, environmental laws might be struck down, and the states, no longer bound by the First Amendment's prohibition on establishment of religion, might be free to re-establish congregationalism as an official religion. (I'm not making this up.) But of course, the chances that any state would actually try to re-establish the Congregational Church are nil. And if the court tried to dismantle the Environmental Protection Agency, even a Republican Congress might rise up in protest, prompting an eventual judicial retreat. Throughout American history, the court has been notoriously ineffective when it has tried to impose the views of a minority over the determined objections of a national majority.

I don't mean to minimize the importance of the immediate Supreme Court nomination on the horizon, which may indeed transform the law on everything from campaign finance to the detention of immigrants. But nightmares aside, the most immediate effect of two more conservative appointments may be to make Anthony Kennedy the new swing justice, and like a polarized molecule, he might react to his new colleagues by moving a little further to the left. On the new Bush court, though, it's unlikely that Kennedy would be able to satisfy liberals by creating new rights, even if he wanted to.

But that may be yet another blessing in disguise for liberals. After all, Kennedy's decision striking down sodomy laws in the name of sexual freedom angered and alienated social conservatives and may have increased their political clout. The court is far from all-powerful and all-determining. And for this reason, it may be unwise for liberals to spend tens of millions of dollars to fight largely symbolic Supreme Court confirmation battles that they will probably lose in the end. Instead, they should be preparing legislative campaigns to protect abortion rights and religious neutrality and devoting their energies to recapturing the two branches that really govern America: namely, the White House and Congress.


This page contains a single entry from the blog posted on July 23, 2005 2:20 PM.

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