Be careful what you wish for

Conservative critics of the Supreme Court have long been hoping for Justice Sandra Day O’Connor’s retirement. They may begin to regret that.

Justice Sandra Day O’Connor, with Justice Anthony Kennedy, has been the key swing vote. The fact that Kennedy is seen as being slightly more conservative, combined with the fact that there are three pretty reliable conservatives and four staunch liberals, has made her vote the key fifth vote needed for a majority. In his history of the post-Warren Court, Kenneth Starr claimed that the Rehnquist Court could be called the O’Connor Court.

Certainly, O’Connor’s retirement is momentous. The Court has remained unchanged now since 1994 – the longest period in the history of the US. The balance on the Court has been unchanged since Clarence Thomas replaced Thurgood Marshall in 1991.

However, those who anticipate replacing O’Connor will lead to a decisive shift in the balance of the Court will be disappointed. Judges below the level of the Supreme Court are bound by precedent. You cannot therefore predict what they will do on the Supreme Court. Nor can academics, politicians or trial lawyers be counted on to vote as anticipated once appointed. Justices Stevens and Souter, both reliable liberals, were both appointed by Republican Presidents.

On a number of issues important to conservatives – racial quotas, the death penalty and abortion – O’Connor has been a key swing voter. When controversial cases involving quotas and the death penalty were decided in the last term, O’Connor was excoriated by conservative commentators for creating a liberal majority. But on two core conservative issues – property rights and federalism – O’Connor is one of the Court’s most reliable conservatives. Ironically, in her last set of votes on the Court, she demonstrated this.

It is O’Connor that conservative commentators have quoted for attacking the Kelo vs New London case, in which a New Jersey town evicted homeowners to use the land for development. She was also among the dissenting judges (with Rehnquist and Thomas) in Gonzales vs Raich, which found that federal drug laws override state laws. Scalia, normally a conservative hero, joined the liberals in overriding the Tenth Amendment to outlaw medical marijuana.

It is not clear that the Bush administration would even want to find another justice as committed to federalism as O’Connor. The administration, after all, was the winning side in Gonzales vs Raich.

Ultimately, even if Bush finds another Clarence Thomas to replace O’Connor, it will not significantly tip the balance of the Court. It would make Kennedy the key swing voter, and he is not as strong on federalism as O’Connor. The only way to change the balance of the Court is to replace one of the liberals. Justice John Paul Stevens would probably be retiring now if John Kerry had been elected. Though appointed by a Republican, he plainly does not want to be replaced by one. But he is 85, and may well conclude that he cannot, in conscience, continue until 2009. Replacing him could well change the balance of the Court completely.

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