How a new justice could change the court
If O'Connor's successor disagrees with any of her positions, precedents decided by a 5-to-4 majority could be vulnerable.
WASHINGTON — President Bush's selection to replace retiring Justice Sandra Day O'Connor on the US Supreme Court could have a profound impact on the future direction of American law.
The question is which way, and how profound.
Top issues potentially include abortion, affirmative action, federalism, and school vouchers.
What makes the selection of a replacement for Justice O'Connor so potentially significant is her longtime role on the high court as a centrist swing voter who cast the decisive fifth vote in many major cases. She voted with the court's conservative wing supporting federalism and school vouchers, but joined her more liberal colleagues to uphold abortion rights and affirmative action.
If her successor disagrees with any of her prior positions, high-court precedents decided by a slim 5-to-4 majority could be vulnerable to reversal as new cases raising similar issues arrive at the court.
Now, as Mr. Bush begins the hard work of paring his shortlist down to a specific person, constitutional law scholars are warning against an overreaction to potential change. "The rhetoric on both sides is highly overheated," says Suzanna Sherry, a constitutional law professor at Vanderbilt University Law School in Nashville, Tenn. "It is a lot more complicated than just, 'Oh, a more conservative justice is coming to the Supreme Court. All these cases are going to get overruled.' "
Nonetheless, Professor Sherry says, "A change of justice is more than just a potential change in particular results. It is a change in the whole dynamics of the court, and a change in judicial approach."
To activists on the left, the concern is that a nominee in the mold of conservative Justices Antonin Scalia and Clarence Thomas would move the court further to the right, jeopardizing affirmative-action programs and broad civil rights rulings, and drawing the court within a single vote of overturning the abortion precedent Roe v. Wade.
Even though a conservative Republican president is making the selection, many activists on the right are worried a Bush pick may not be conservative enough. They say a nominee in the mold of former "stealth candidate" Justice David Souter would move the court sharply to the left, jeopardizing a string of federalism decisions, the school-voucher precedent, and a number of criminal-justice rulings supporting law enforcement. It would also reduce the possibility of the court reconsidering abortion and affirmative action.
But such speculation can undermine an essential purpose of a constitutional court that enforces consistency and stability in the law. Many analysts - including some of the justices themselves - have expressed concern that the increasingly partisan and ideologically driven nomination process is politicizing the court, tainting its credibility as dispassionate arbiters of the law.
A Pew Research Center poll conducted last month suggests that the court's image has dropped substantially in recent years. Those holding a favorable view of it fell to 57 percent, down from 68 percent in January 2001, which immediately followed the controversial Bush v. Gore decision.
Legal analysts say that contrary to growing expectations, the high court generally doesn't take radical action. Changes in the law develop slowly, usually mirroring established public opinion. But the fact is, the court can also be an important engine for change.
"It will be natural for litigants to try to take the measure of the new justice and see how the new court composed with its new member reacts," says Doug Kmiec, a constitutional law professor at Pepperdine University School of Law in Malibu, Calif. "But I don't think the public should expect, nor would they want, a wholesale revision of the work of the court for the last 10, or 15, or 24 years."
Much of the rhetoric surrounding a nomination stems from the debate over abortion. O'Connor's departure eliminates the key fifth vote in a 2000 case striking down a Nebraska ban on so-called "partial birth" abortions. But her retirement still leaves five justices supporting the central holding in Roe v. Wade.
An abortion-related case is already on the docket for next fall. The court will examine the constitutionality of a New Hampshire law that requires parents to be notified prior to their minor daughter obtaining an abortion. The case is being viewed as a test of the extent to which a majority of justices might be willing to permit states to enact laws that make it harder for some to obtain abortions.
"That is the real difference between a liberal and conservative appointment," says Professor Kmiec. A liberal nominee would oppose such state actions, while a conservative would afford them a greater presumption of validity, he says.
Kmiec says such state laws may hold the key to an eventual overturn of Roe v. Wade: "If the ultimate error of Roe is that it took a decision that should have been left to the people in their statehouses, then the way to correct that decision may not be to overnight simply reverse it, but to pay close attention to the new efforts by the people to limit the practice and to give that as much latitude as possible."
Many analysts stress that it is extremely difficult to predict the future behavior of a justice based solely on the party affiliation of the appointing president. "Being on the court changes justices," says Sherry of Vanderbilt. "Everybody thought that O'Connor was going to vote like [Justice William] Rehnquist - and for a while she did. But not for that long."