February 1, 2006



Jay B. Gaskill

As the dust settles from the confirmation of Justice Alito, the reality is clear. The Five Liberal Justices of the Supreme Court (Souter, Breyer, Kennedy, Ginsburg, and Stevens) remain in charge. Two right-of-center justices have been replaced by two right-of-center justices.

Though O’Connor was supposedly a “swing vote”, the replacement of Chief Justice Rhenquist by Roberts and Justice O’Connor by Alito will really not alter the current balance of power on the high court.

Three key decisions illustrate the point:

In Stenberg vs. Carhart (2000), the Supreme Court struck down a partial birth abortion ban. In a partial-birth abortion, the unborn fetus is removed from the mother’s uterus while still alive. Then, while the head is still in the “unborn” position, the fetus is killed by evacuating the skull. The Nebraska law struck down in Stenhart outlawed the procedure except in where the procedure was necessary to save the mother’s life. O’Conner dissented.

In McCreary County, Kentucky vs. ACLU (2005), two framed copies of the Ten Commandments were displayed in two Kentucky courthouses. In another five-to-four vote, this display was held unconstitutional under the establishment clause. Justice Souter distinguished the frieze above the Supreme Court’s own courtroom, showing Moses carrying the Ten Commandments. After all, he argued, the text of the Decalogue is not shown, and Moses is next to Mohammed and Confucius. O’Conner joined in the dissent.


In the case is Kelo vs City of New London (2005), the same five justice liberal majority held that the government’s eminent domain power may be used for the quasi private purpose of condemning private homes to make way for shopping malls or other private development. Sandra Day O’Connor again dissented, arguing that government power to seize private property should be limited to a genuine public purpose, not the ever present interest in generating tax revenue. She added that the decision favored the rich and well connected at the expense of ordinary Americans.

It is significant that in each of these three cases, popular opinion in the US is more conservative than the views of five justices who currently dominate the court. So the circumstances are ripe for a real shift in the balance of power. But will the current administration have one more opportunity?

We have no access to medical reports and other intelligence. On the face of it, the likelihood of a Supreme Court vacancy between now and the end of George W’s term appears to be less than 50%. So we are reduced to demographic speculation.

First In, First Out?

Let’s survey the Big Five in reverse birth order:

  1. David Souter 1939 (Clinton 1993)

  2. Steven Breyer 1938 (Clinton 1994)

  3. Anthony Kennedy 1936 (Reagan 1998)

  4. Ruth Bader Ginsburg 1933 (Clinton 1993)

  5. John Paul Stevens 1920 (who turns 86 on April 20th – Ford 1975)

The job of a Supreme Court justice can be carried out as long as the incumbent can effectively participate in the court’s decisions. Given the depth of staff support available, an otherwise competent justice can do the job from an assisted living facility, so long as he or she can be wheeled to and from conferences and the court’s sessions.

Only death, scandal, a truly debilitating illness, or some “please take this job and shove it” life issue will trigger a Supreme Court vacancy.

Absent some bolt from the sky event, the only plausible candidate to retire before the end of the current administration’s term is Justice Stevens. Like many justices who are not on the same ideological page with a sitting president, Stevens would probably want to wait it out, hoping for a new administration. But the exigencies of life are often cruel.

Add to this two more bits of speculation: There are uncorroborated health rumors about another justice. Is it Ginsburg? Is it Kennedy? If Kennedy is the source of the rumors, the administration might have advance warning. After all, Justice Kennedy was a Reagan appointment. Might he be willing to leave early in exchange for a moderate republican replacement?

Yes, this kind of speculation is usually a pointless exercise: except for the president’s attempt to get his trusted staff member, Harriet Miers, on the high court.

W was lured into that nomination, based on the huge political calculation that HM’s conformation would be a slam dunk confirmation. At the time I asked why the president would be so eager to avoid a Senate fight. I speculated that he wanted to preserve his political capital for another time.

I am personally persuaded that “W” wanted a quick, non-controversial confirmation. It is reasonable to fear that the President is just too tired for another fight, but I propose a different theory. He knows something we don’t, to wit: that there is another vacancy in the queue, one of the other justices, someone who might not want the vacancy to be filled by Hillary and won’t want to stay another decade if she is two term. Assume a signal reaches Cheney. In this view, W is counseled to save the big guns for the real fight, the Fifth Vote. This is exactly the kind of stuff you can’t even leak. And it now seems evident that the president was deliberately misled by Nevada’s Harry Reid, the Senate democratic leader. “W” tends to trust on first impressions. Reid seems to have played the president and almost created a deadly wedge issue between the secular “hard” conservatives and the evangelical “soft” conservatives. The president’s political calculation and head count were probably skewed because of Carl Rove’s distractions related to the pending Grand jury decision. All in all, it was a disaster in the making.

This was the battle the president sought to postpone. So much for stealth.

The next vacancy, the real balance of power appointment is yet to come. Was that what drove the attempted Miers gambit? We’ll probably find out within the year.


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