Scripps Howard News Service
September 30, 2004
By MARY DEIBEL
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WASHINGTON - Four years ago, the U.S. Supreme Court picked a president rather than wait for the political process to play out. This time around, the president elected Nov. 2 may have a chance to change the court's makeup and affect the nation for years to come.
With the court closely divided on affirmative action, abortion, campaign finance reform, church-state relations, capital punishment and states' rights, George W. Bush or John Kerry could appoint enough justices to tilt some of the most controversial issues, interest groups contend.
People for the American Way leads the liberal groups that are asking whether it's "four more years, or 40 more years" if a re-elected Bush remakes the Supreme Court.
Conservative groups counter with a "Kerry's Scary" campaign. Boyden Gray, the White House counsel to the elder George Bush who founded the Committee for Justice to fight for the younger Bush's court appointees, claims that the next president "will appoint at least two and as many as four justices to the Supreme Court."
Right now there is no Supreme Court vacancy, and no justice has hinted at retiring anytime soon. When the Supreme Court starts its new term Monday, Oct. 4, the nine justices will begin their 11th year together for the first time in U.S. history. The only longer stretch of service came between 1812 and 1823, when it was a seven-member court.
"Eleven years together is a remarkable thing," says former Bush administration solicitor general Theodore Olson, now back in private practice. "That makes it the most mature court in terms of the justices' relationship with each other, and these nine continue to return to the same themes, refining what they decided before."
Today, the court is led by Chief Justice William Rehnquist, who has been on the high court 32 years and turns 80 on Friday, Oct. 1. The average justice today is 70 years old, and Justice Clarence Thomas, at 56, is the only one under 65.
As Pepperdine University law professor Doug Kmiec puts it, "Even the Supreme Court can't repeal the actuarial tables"- a reason the next president may have vacancies to fill.
In the 1996 presidential race and again in 2000, "The partisans said, 'It's the Supreme Court, stupid,' " recalls Walter Dellinger, the Duke University constitutional scholar who was the Clinton administration's chief Supreme Court lawyer. "They're saying it again in 2004, and one of these years they're going to be right."
However closely the court is divided, it's not always along liberal-conservative lines. Conservative Justice Antonin Scalia, for instance, wrote the 5-4 decision last June that jeopardized a quarter century of criminal sentencing reforms by striking down a statute that lets judges increase jail time beyond what a jury decides. At the Bush administration's request, the justices will spend Monday starting to straighten out the confusion that ruling has caused for federal sentencing guidelines, not to mention state sentencing schemes.
Nor is the state of the union calm even though the White House, Congress and Supreme Court are all in Republican hands. Justice Sandra Day O'Connor, one of seven Republican high-court appointees, told a recent gathering of federal judges, "The apparent relationship today between some members of Congress at least and the federal courts ... is more tense than at any point in my lifetime."
Legislation pending in Congress would strip the federal courts of power to decide:
- If "under God" should stay in the Pledge of Allegiance.
- If the federal Defense of Marriage Act, which allows states to refuse to recognize same-sex marriages elsewhere, is constitutional.
- If judges can cut prison terms below federal sentencing guidelines.
- If U.S. courts can hand down rulings that consider foreign laws and court cases including treaties that address prisoner-of-war treatment and the execution of juvenile and retarded offenders.
Bush criticizes "activist judges" and promises to "continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law." He cites Scalia and Thomas as examples of the sort of justices he would appoint, and Thomas biographer Ken Foskett writes that the Bush White House has interviewed Thomas as a possible chief justice should Bush win re-election and Rehnquist resigns.
Democratic presidential nominee John Kerry promises to "reverse damage done to civil rights laws by right-wing judges" and would "only appoint judges with a record of enforcing the nation's civil rights and anti-discrimination laws."
But for all the interest groups vetting and fretting over the high court's future, Georgetown Law professor Mark Tushnet takes an outlier's view of the 2004 election's impact on the court. With the country, court and Congress divided, he says, "The politics of the Senate make it likely that a newly appointed Democratic Supreme Court justice would look a lot like a newly appointed Republican one."