On Law

Jewish World Review Nov. 8, 2004/ 25 Mar-Cheshvan, 5765


Supreme Court unlikely to make a wild swing to the right, experts say



http://www.NewsAndOpinion.com | (KRT) With President Bush poised to appoint as many as four Supreme Court justices in the next four years, the prospect that the court may turn to the right has a politically split nation teetering between hysteria and happiness.

But experts say that even controversial decisions on such issues as abortion, affirmative action and the death penalty aren't likely to change.

"It just doesn't cut that cleanly, unless you're looking at this court through the eyes of some kind of advocate," said Jack Doppelt, a Northwestern University journalism professor and lawyer who maintains a Web site, On the Docket (http://docket.medill.northwestern.edu), that tracks Supreme Court arguments and opinions.

"I don't think there's any doubt that President Bush will try to call in his chits and appoint justices who will move the court to the right, but whether that results in the kind of reversals the advocacy groups talk about is questionable," he said.


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That's partially because the president doesn't have unilateral power to put whomever he wants on the court. The Senate has to approve nominees, and historically has played a moderating role. Even now, with a 55-vote Republican majority, Bush is shy of the 60 votes needed to push nominees through without a filibuster. And already, Republican Sen. Arlen Specter of Pennsylvania, the likely chairman of the Senate's Judiciary Committee, has said the president has "no mandate" to pack the courts with archconservatives.

But even if Bush were to have his way with the Senate and nominees, there's no guarantee that his appointments would radically alter established law.

The court is historically the most stable of the three branches of government, less given to the wild swings that afflict Congress and the presidency. It's a place where the rule of law and precedent mean everything, and politics plays a minimal role.

The last president to mold the court in his own image was Franklin Roosevelt, who had eight appointments in his 12 years in the White House. Since that time, appointments have become tougher to get through the Senate, and judges who reach the court have been more unpredictable in their temperaments and judgments.

(Angered by Supreme Court decisions that overturned some of his New Deal policies, Roosevelt also sought to expand the size of the court with more sympathetic justices. His attempt provoked an outcry from Congress, the chief justice and the public, and was killed by his fellow Democrats in the Senate.)

"They're judges, and if you get a good judge on the court, it's harder to pin them down as political," said Nathaniel Persily, a University of Pennsylvania law professor.

"There are judges with consistent, coherent judicial philosophies, and others who go case by case and consider the totality of the circumstances. Each kind is accused of being political, but that's not really such a credible charge."

The current court is a good example.

Democrats have had only two appointments to the court since 1968. Yet the overwhelmingly Republican-appointed court has developed as only a moderately conservative bench. The reasons: respect for precedent and the rule of law.

For example, Roe v. Wade, the 1973 ruling that legalized abortion, has the support of six justices, including two Reagan appointees and one put there by George H.W. Bush, the current President Bush's father. Even those who might disagree with Roe's reasoning are reluctant simply to overturn it.

It would take two new justices with no respect for precedent - an unlikely eventuality, given the Senate's makeup - to reverse Roe.

Affirmative action - another issue that divides liberals and conservatives - has been pared back several times, but efforts to declare racial preferences unconstitutional have failed. In the University of Michigan cases in 2003, the court gave the narrow use of racial preferences more judicial strength than it had ever had. Though the court's vote on Michigan's policy was 5-4, the split on legal use of racial preferences was 6-3 - again, with several Republican-appointed justices supporting it.

Six justices supported a 2002 decision to outlaw executing mentally retarded people, and seven backed a ruling that strengthened requirements for defense attorneys in capital cases. The court is quite liberal on free-speech issues and respectful of church-state separation. It's slapped down the Bush administration - in one case with eight votes - over its push to diminish civil liberties in the war on terrorism.

"Despite an overwhelming Republican influence in terms of appointments, this court has not necessarily been extreme," Doppelt said. "And that's because judges are not necessarily ideologues, like politicians. It's more complicated."

It's important to remember that most of the court's decisions have few discernible political overtones.

Last term's most influential ruling - at least in the short run - was a decision that appeared to render the long-standing federal-sentencing guidelines unconstitutional. It was a 5-4 decision, with Justices Antonin Scalia and Clarence Thomas - the court's most conservative members - joining John Paul Stevens, David Souter and Ruth Bader Ginsburg, part of the court's more liberal wing.

"There are just so many possible permutations," Persily said.

"There are a lot of quirky issues that get decided, and there's just not an easy way to predict their outcome," Doppelt said.

Even if the president is more successful than his predecessors in getting stridently conservative justices on the bench, experts said, it's impossible to predict whether the remaining justices might moderate their influence.

"The justices tend to be very aware of what role their one vote plays in the overall decision-making," said Mark Tushnet, a Georgetown University law professor. "And you could see justices moving in unexpected ways if the president tries to pack the court with conservatives."

Justices Sandra Day O'Connor and Anthony Kennedy are the court's swing votes now, for example. Both have evolving views of several of the hot-button issues.

Would adding a hard-right justice quicken the pace of their evolution?

"Maybe," Doppelt said. He pointed out that there's precedent for that in the court's history, most notably with Justice Harry Blackmun, whose recently released papers make it clear that he moderated his positions to offset the influence of newly appointed judges.

"I think he did it because he saw himself having a role to play," Doppelt said. "And there are a lot of justices like that."

Persily said that if Americans had wanted to protect the court's moderate instincts, they'd have elected Sen. John Kerry, who said he had no ideologically motivated intentions in terms of the court.

Bush has said his models are Scalia and Thomas, the only justice who openly disputes the need to adhere to court precedent. If he nominates similar justices and has them confirmed, Persily said, "It would solidify conservative control of the court. You can't say for sure what that will mean, but it won't be meaningless."


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