SUPREME COURT ROULETTE

By EDWARD LAZARUS


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Wednesday, Aug. 08, 2000

From my time as a law clerk for Justice Harry Blackmun, among my most vivid memories is of the days after George Bush defeated Michael Dukakis in the 1988 Presidential election. The sight of the Court's three most liberal Justices returning to their offices after one of the Court's Friday morning conferences spoke volumes. Justices Blackmun and Brennan, both frail and slight, walked down the plush maroon carpet, arm in arm, leaning upon one another for support. Brennan, who had been ill, appeared unsteady on his feet. Behind them, arms outstretched, either out of protectiveness toward his diminutive colleagues, or to derive support, loomed the wheezing figure of Justice Thurgood Marshall.

[Illustration]

The average age of these three men was over 80. All the liberals at the Court believed that, one way or another, these Justices would leave the court during the Bush presidency. And just as surely, they believed Bush would, in a political payoff to the GOP's ultra-conservative wing, push the Court hard rightward. In short, in those November days, everything from Roe v. Wade to Miranda and a generation of civil rights progress felt irretrievably lost.

History repeats itself. The conventional wisdom (explicitly endorsed by Vice-President Al Gore) is that the next President will get to replace as many as four of the nine Supreme Court Justices. John Paul Stevens, now the dean of the Court's liberal faction, is 80, a victim of prostate cancer, and has a wife who has been begging him to retire to Florida. Chief Justice William Rehnquist, 75, is reputed to be bored with his job despite having had substantial success in moving the Court to the political right. He has reportedly told friends he would have called it quits had Bush or Dole won in '92 or Î96. Sandra Day O'Connor, at the Court's political center, is 70, a cancer survivor, and already a 20-year Court veteran. And Clinton's first nominee, Ruth Bader Ginsburg, only slightly younger, is undergoing chemotherapy in a battle against colon cancer.

The Left Gets Nervous

Inside the Court, the liberals fret. Justice David Souter, who is waging a self-described "epic struggle" against the court's anti-choice, pro-prayer, state's-rights-touting conservatives, recently warned a group of college students that November's election would determine the future of the Court. "Vote very carefully," Souter implored them. Although he is a lifelong Republican nominated for the Court by the elder Bush, for years Souter has expressed concern to friends about the propensity of GOP moderates to use judicial appointments as a sop to the religious fundamentalists he resents for having captured his party. Since he cast a crucial vote to save Roe v. Wade, Souter has emerged as the Court's leading intellectual counterweight to the arch-conservative Antonin Scalia. If Bush wins the election, Souter faces the prospect of living out his tenure authoring meaningless dissents.

It is not surprising that Vice-President Al Gore's reelection campaign has been trying to flog the composition of the Court as a winning issue for Gore. In particular, the Gore campaign has seized upon the notion that a Bush Supreme Court would overturn Roe. This fear was reinforced by the Court's recent 5-4 split over Nebraska's ban on partial-birth abortion. Gore's national spokesman, Doug Hattaway, calls the future of the Court "a major issue for the fall campaign," and warns that a Bush victory would "open a whole can of worms," beginning "first and foremost with abolishing a woman's right to choose."

Liberal advocacy groups have swung into action. People for the American Way, a key player in torpedoing Robert Bork's 1987 Supreme Court nomination, has prepared an 80-page "special report" analyzing the likely views of a Bush Supreme Court. Their speculation as to the composition of a Bush Court is based on the assumption that George W. would appoint Justices in the mold of Scalia and Clarence Thomas -- Justices he has anointed as role models. According to PFAW, the death of Roe "would just be the beginning." They also threaten the demise of the ban on school prayer; protections against discrimination based on gender, age or sexual preference; environmental regulation; affirmative action; voting rights; and worker safety. In short, they warn, "a Scalia-Thomas Supreme Court would radically rewrite our nation's fundamental definition of justice."

Conservatives Play Possum

Conservatives avoid the Court issue like the plague. Ordinarily voluble advocacy groups such as the Washington Legal Foundation respond to Court-related questions with a terse, "no comment, too close to the election." Big-wigs from the Reagan-Bush era, such as former Attorney General William Barr and Assistant Attorney General Ted Olson, insist the Bush campaign isn't focused on the Court. One conservative think-tanker suggested that everyone was taking their cue from the campaign -- silent as a tomb when it comes to potential Bush judicial nominees.

to see "engenders a lot of political issues you don't have to get into at this point." Gore's man Hattaway couldn't agree more: "Conservatives know that [the Court issue] blows their cover about Bush being a moderate. The first thing that comes up is freedom of choice and that's a loser for Bush."

One sharp conservative legal expert, Dan Troy, who worked in the Bush Justice Department, doesn't put much stock in the early handicapping. He notes that his own mentor, Robert Bork, was known as the "justice in-waiting" as early as 1974, yet never made it to the Court. More generally, he derides liberal claims about an ultra-conservative Court as "typical Gore fear-mongering."

Four Slots Or None?

Troy may be right. The almost universally accepted premise that the next President will get three or four Court appointments actually rests on some shaky premises. The assumption involves a rather morbid assessment, but such scrutiny is not unenlightening. It actually suggests that the next President, especially if elected for only one term, may in fact get no appointments at all, much less enough to reshape the Court for the future. Why?

  • Justice Stevens shows no signs of slowing down. Indeed, he's been joking about having to find a new tennis partner because he's outpacing his current rival. As senior justice on the liberal side, Stevens has his pick of opinions to write and -- as with the landmark ruling this term striking down voluntary public school prayer -- he seems to be self-consciously building his jurisprudential legacy.


  • Why would Rehnquist step down? The Chief doesn't work especially hard and has plenty of time left over for his book-writing hobby. True, Rehnquist contemplated doing so before, but as Troy points out, his beloved wife was then desperately ill. He now may feel differently with some years' distance from her death. In any event, were Bush replacing Rehnquist, he would be exchanging one conservative for another, which would hardly change the Court's basic politics.


  • As for O'Connor, her place as the Court's pivotal vote on almost every big issue makes her arguably the most powerful woman in the world. Former clerks say she looked terrific at a recent reunion and has dropped no hints about taking more time to smell the roses. Quite the contrary, in fact.


  • By all public accounts Ginsburg expects a full recovery. Certainly, she showed few if any signs of slowing down last term despite surgery and chemotherapy.

Few outside the Court appreciate the strongest disincentive to retirement -- above and beyond giving up an incredibly interesting and influential job with lifetime tenure. The Justices are keenly aware of what happened to their predecessors. Brennan, Marshall and Blackmun all faded quickly after stepping down, and died soon after. Not good marketing for retirement.

It is perhaps worth recalling as well that for all the doom and gloom in the Blackmun-Brennan-Marshall axis that November in 1988, Bush's election actually changed the Court very little. At that time, big cases on almost every controversial issue came down to the votes of two Justices: O'Connor and Anthony Kennedy. Twelve years and two Presidents later, exactly the same is true today.

Each President tries to mold the Court in his image. But since Franklin Roosevelt, not one has succeeded for a meaningful duration. Several -- such as Eisenhower with Chief Justice Warren, Nixon with Blackmun and Bush with Souter -- have found themselves confounded. It isn't at all clear that the younger Bush (or Gore for that matter) will have any greater success.

Edward Lazarus, a former federal prosecutor, is the legal correspondent for Talk Magazine and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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