Now that the choice for president is down to Al Gore and George Bush, the focus will turn to the differences between them. Among the most important–and often overlooked–is how each would change the shape of the U.S. Supreme Court.
Because the nine-member court is closely divided on contentious issues– typically with the more conservative justices prevailing by one vote–the next president’s appointments could have enormous influence. One or two new justices could shift the balance and change how the court decides some of the most controversial issues in society, from race and religion to sex and civil rights.
“Certainly presidents can change history through appointments to the Supreme Court, and change it very much for the better or for the worse,” said Ronald Klain, a Washington attorney who once served as Gore’s chief of staff. “It certainly can be one of the most lasting legacies a president leaves behind.”
We don’t know who will retire or, for that matter, whether anyone will.
But most observers speculate that Chief Justice William Rehnquist, who is 75, and Justices Sandra Day O’Connor, who will be 70 later this month, and John Paul Stevens, who turns 80 next month, are the most likely retirees. Only one president, Jimmy Carter, didn’t get to make a Supreme Court appointment.
The presidential candidates appear acutely aware of their opportunity to leave their imprint, at least with respect to one of society’s most contentious, politically charged issues: abortion.
Gore usually finds a way to raise the specter of a Republican president undoing Roe vs. Wade, which in 1972 guaranteed a woman’s right to abortion.
President Clinton, too, has joined the fray, saying earlier this year there is “absolutely no question in my mind that whether Roe vs. Wade is preserved or scrapped depends on what happens in the presidential election, and to pretend otherwise is naive.”
Clinton may be overstating the issue on abortion and oversimplifying the debate about the court.
Only three of the nine justices now would overturn Roe, and one of them, Rehnquist, is expected to retire. That means that to undo Roe, the next president would need to appoint three justices who would vote to overturn it. As history has shown, getting those votes is no easy task.
For one thing, Bush has said he wouldn’t use abortion as a litmus test, and, indeed, nominees probably would refuse to answer questions about Roe, because judges aren’t supposed to comment on matters that may come before them.
For example, O’Connor and Justice Anthony Kennedy, two Reagan appointees, and Justice David Souter, a President Bush appointee, didn’t share their views on overturning Roe until they were given the opportunity on the bench in a 1992 case. The three refused to overrule it.
“It’s hard not to mention abortion, but there’s a lot more to what’s going on in the Supreme Court than just the abortion issue. Almost every important domestic policy issue ends up in court,” said Daniel Troy, a Washington lawyer and scholar at the American Enterprise Institute. “I believe 25 years from now, no domestic policy issue the president will decide will still be relevant. But 25 years from now, who someone has appointed to the bench is still very, very operative.”
One new justice, for example, could change the court’s thinking on racial preferences, federal aid to religion, voting rights, sex discrimination and the evolving area of Congress’ power vis-a-vis the states.
The enormous number of high-profile issues on the court’s docket this term illustrates what’s at stake.
By the end of June, the court will decide whether the government can regulate tobacco or provide educational equipment to religious schools. It will decide whether police must still give suspects so-called Miranda warnings, if states can limit certain types of abortions, if students can pray on loudspeakers before football games, if patients can sue HMOs and whether grandparents can sue for visitation rights.
“The interesting phenomenon is that this year, the court has addressed virtually every [high-profile] area, almost in a pre-election, insurance round,” said Douglas Kmiec, a professor at Pepperdine Law School who was an assistant attorney general in the Reagan administration. “It seems like an attempt by the court to solidify some doctrine, perhaps before the political process can work its will on the composition of the court.”
But even so, the rulings in many of those cases are not likely to be the kind of broad, sweeping rulings handed down by, for example, the court led by former Chief Justice Earl Warren. This is a court that does things incrementally. This also is a court that still is conflicted in many areas, such as when the government can give financial aid to religious schools.
With one or two new justices, the court could reach a stronger consensus on the separation of church and state, to name one area. It certainly will have the opportunity. The justices eventually must resolve the use of school vouchers, and other church-state matters are percolating, too, such as moments of silence in schools.
The justices are not squarely taking up the issue of race in this term, but the next court could shape the use of race-based affirmative action in schools and universities. It also could rethink the sharp limits on the use of race in drawing up voting districts–an area where the justices now are divided 5-4.
“They’re going to affect the political game for the next generation,” Yale Law School professor Akhil Amar said. “The effects won’t just be short-term. They’ll alter the basic shape of power.”
Sex discrimination also may occupy justices in coming terms, with issues such as whether the government can engage in affirmative action for women in business, on faculties and in admissions, Amar said.
The court also is very closely divided on federalism and state’s rights, issues that have captivated the justices in recent terms, and limiting its ability to subject states to certain lawsuits under federal law. Both sides have dug in their heels over the issue.
Criminal law issues, too, will remain prominent. The court this year has several opportunities to give police more power. It typically has sided with police, as it did earlier this term when it said Chicago police could stop and frisk a person who had fled upon seeing them.
Other issues, like those surrounding the death penalty, more closely divide the court. None of the nine justices would vote to ban the death penalty, but the four more liberal ones are, as Amar said, “looking for ways to limit death.” Another justice could tip the balance, and enable the court to insist on all sorts of procedural protections for defendants facing the death penalty.
But Bush and Gore know the power to appoint doesn’t necessarily translate to the ability get favorable rulings out of the high court. History books are littered with presidents who were surprised–and dismayed–by their choices’ votes from the Supreme Court bench.
Republicans still despair about President Bush’s appointment of Souter, who, with the exception of Justice John Paul Stevens, is arguably the court’s most liberal member. Stevens also was a Republican appointee. President Ford named him to the court.
The younger Bush, as a Republican president, likely would be under real pressure to start filling the lower courts and the Supreme Court with conservative judges and justices–people more like Justices Antonin Scalia and Clarence Thomas than Souter, said Dennis Hutchinson, a University of Chicago Law School professor.
There’s no shortage of highly qualified Republican judges in the lower courts, particularly after 12 years of appointments by Reagan and Bush. On the U.S. Courts of Appeals, Judge Edith Jones of the 5th Circuit is considered a contender, as is Judge Diarmuid O’Scannlain on the 9th Circuit, Judge Michael Luttig on the 4th Circuit, and, in Chicago, Judge Frank Easterbrook on the 7th Circuit.
As Hutchinson and others noted, conservative appointments would be easier for Bush with a Republican-controlled Senate. And the flip side is true for Gore.
There are obvious candidates in the U.S. Courts of Appeals for Gore to choose–Judges David Tatel and Merrick Garland on the D.C. Circuit, Judge Jose Cabranes on the 2nd Circuit and, in Chicago, Judge Diane Wood on the 7th Circuit. Others potential candidates for Gore are former Solicitor General Walter Dellinger and Solicitor General Seth Waxman. And, if Gore were to seek a political type, Commerce Secretary William Daley’s name has been mentioned. Daley, brother of Chicago Mayor Richard Daley, worked at Chicago’s Mayer, Brown & Platt before entering public service.
Any Supreme Court justice needs to be confirmed, so a lot depends on which party controls the Senate.
But the current justices still hold the cards: They ultimately will determine whether the next president can leave his mark on the court. Thus far, they haven’t dropped any hints about retiring. Indeed, the justices seem to like to stick around: William Brennan , retired at 84, Justice Harry Blackmun at 85.
“One thing that’s certain about it is that there’s no certainty,” Klain said. “It’s impossible to predict.”
