- The Washington Times - Monday, September 13, 2004

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.

President George W. Bush has pledged to make “original meaning” appointments in the mold of Justices Scalia and Thomas. The sincerity of that pledge is confirmed by Mr. Bush’s appointments to federal appellate courts one notch below the Supreme Court, for example, John Roberts to the U.S. Court of Appeals for the District of Columbia Circuit.

Democratic nominee John Kerry has been more elusive on judicial appointments but has been categorical that his Supreme Court appointments must subscribe to the extraconstitutional abortion ruling in Roe vs. Wade (1973). That promise indicates candidate Mr. Kerry as president would appoint justices of the second or third interpretive brand.

Remember that politically compromising Justices O’Connor and Kennedy endorsed the core holding of Roe in Planned Parenthood vs. Casey (1992). Moreover, every Democratic occupant of the White House since President Franklin D. Roosevelt has been inexplicably phlegmatic about philosophy in making judicial Supreme Court appointments — for instance, President John F. Kennedy’s appointment of then Deputy Attorney General Byron White.

If George W. Bush is re-elected and the seats of Justices O’Connor and Stevens open on the Supreme Court, constitutional decrees in pivotal areas concerning presidential war powers, church-state relations, freedom of speech, the death penalty, the powers of the police and prosecutors, racial, ethnic and gender discrimination and private property will display a markedly more conservative hue consistent with the judicial role envisioned by the Founding Fathers. And that judicial modesty should persist indefinitely.

On the other hand, Mr. Kerry defeats Mr. Bush and gets to fill Supreme Court openings, there is a strong probability constitutional law will echo the latest slabs of sociological and moral thinking prevalent in academic and media circles. Same-sex marriage will probably be declared a constitutional right; the use of “under God” in the Pledge of Allegiance will be held an affront to religious neutrality; and racial and ethnic group rights will be recognized as superior to a society in which the content of an individual’s character rather than the accident of skin color fixes his destiny.

In sum, the 2004 presidential elections may prove more pivotal to the influence of the Supreme Court in American life and the cast of constitutional law than any predecessor since President Roosevelt was re-elected in 1936. To paraphrase from Finley Peter Dunne’s Mr. Dooley, the direction of the Supreme Court marches to the same drummer as the election returns.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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