- The Washington Times - Tuesday, October 24, 2000

If history and reason are any guide, the United States Supreme Court is unlikely to shift dramatically during the next presidential term whether Democrat Albert Gore or Republican George Bush is elected. The number of vacancies and the ideological camp of retirees is problematic; the independent role of the Senate in confirming nominees would block strong ideological appointments in the post-Bork era; and anticipating the voting behavior of new Justices is dicey business, especially their inclination to overrule controversial precedents like Roe vs. Wade (1973) (creating a right to an abortion).

Prophets of dramatic Supreme Court change occasioned by either Gore or Bush appointees, however, are not foretelling the impossible. At present, the nine justices divide into three schools of jurisprudence, popularly styled "liberal," "conservative," and "centrist." Associate Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer occupy the liberal camp. Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas make up the conservative bloc. And Associate Justices Sandra Day O'Connor and Anthony Kennedy are typical centrist or "swing" votes. The ideological balance created by the three divisions is delicate. Of the high court's 73 decisions last term, approximately one-third split the justices 5-4. Despite these observations, persuasive reasons militate against dramatic change in Supreme Court jurisprudence.

Prevailing orthodoxy insists that between one and four Supreme Court vacancies will be created during the four-year term of either Mr. Gore or Mr. Bush. But none of the Justices has hinted at retirement. None are medically ailing. Their mental faculties are uniformly acute. Since Supreme Court appointments are for life, no vacancies appear on the horizon.

Zero openings during the first (and perhaps only) term for Mr. Gore or Mr. Bush would not be historically unprecedented. President Franklin D. Roosevelt appointed no justice during his initial term, although the high court then was derisively assailed as "Nine Old Men." President Jimmy Carter likewise appointed none.

Partisan politics or judicial ideology, it is said, will impel some justices to retire or to resist retirement. But that soothsaying seems counterhistorical. Chief Justice and liberal icon Earl Warren, for example, retired during the presidency of Richard M. Nixon, although the two were fierce political enemies. Moderate Justices Potter Stewart and Lewis Powell retired during the presidency of conservative Ronald Reagan. Liberal Justices William Brennan and Thurgood Marshall stepped down during the centrist presidency of George Herbert Walker Bush, the Republican candidate's father.

The ethos of the Supreme Court, moreover, is scrupulously apolitical. Not a shred of credible evidence suggests that benefit or disadvantage to a political party enters the court's deliberations, either collectively or individually. And all the justices would deplore the taint on the high court's reputation and legitimacy that would ensue from even an appearance that a vacancy had been inspired or withheld by partisan politics.

But suppose a justice does the improbable to boost or preserve her judicial philosophy. If Mr. Gore is elected, the retiree would come from the liberal side of the bench, most likely Associate Justice John Paul Stevens. But replacing a liberal by another liberal would not affect the high court's conservative-centrist-liberal balance. Ditto if Mr. Bush is elected and a conservative, (most likely Chief Justice William Rehnquist), retires to assure a comparably striped successor.

The moderating influence of the Senate on Supreme Court nominees, accentuated in the post-Bork era, also undercuts the dramatic change theorists. The Constitution requires a Senate majority for confirmation. If the Senate remains in Republican hands and Mr. Gore is elected, it is unthinkable that a strong ideological liberal would be confirmed in light of the 1987 Democrat trashing of nominee Judge Robert H. Bork. His "conservative" judicial posture coupled with intellectual brilliance thwarted his elevation. Realpolitik would confine Mr. Gore to mildly liberal or centrist nominees. If Mr. Bush is elected and the Senate turns Democrat, he would similarly be limited to mildly conservative or centrist Supreme Court choices. And even if Mr. Gore or Mr. Bush enjoy a Senate of the same political banner, the post-Bork custom (Justices Kennedy, Souter, Thomas, Ginsburg and Breyer) strongly favors mainstream nominees disinclined either to overrule precedents or to champion a constitutional revolution. Justice Souter has proven a pronounced liberal, and Justice Thomas an equally devoted conservative, but neither polar development was clear when the two were confirmed.

Abortion rights crusaders maintain with mathematical certainty that Roe vs. Wade will be overruled if Mr. Bush the Younger defeats Mr. Gore. But consider the following: Since 1968, Republican Presidents Nixon, Gerald Ford, Reagan and Bush the Elder collectively appointed 10 justices, and seven celebrated a constitutional right to an abortion, including three of four Nixon appointees and two of three Reagan selections. And Mr. Bush the Younger is decidedly less conservative than either predecessor. Furthermore, the Supreme Court's characteristic defense of precedent makes a death knell for Roe highly improbable irrespective of new personnel. Last June, for instance, Chief Justice Rehnquist wrote for a 7-2 majority in Dickerson vs. United States to reaffirm the controversial 5-4 Miranda (1966) decision governing police interrogations despite his earlier fulminations against the precedent. The chief justice's chief justification for reaffirmation would seem to fit Roe like a glove: "Miranda has become embedded … to the point where the warnings have become part of our national culture."

In sum, rumors of an apocalyptic change in Supreme Court decisions with either Mr. Gore or Mr. Bush in the White House during the next four years seem vastly exaggerated.

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