The moment Ohio's election results became clear, my BlackBerry started buzzing with messages from friends and colleagues panicked that George Bush's reelection will result in a radical right-wing takeover of the Supreme Court as Bush makes as many as four new appointments, including a successor for the seriously ill Chief Justice William Rehnquist. Only time will tell, but such fears are likely exaggerated. In the next four years, the court's center of gravity will probably change only modestly, if at all.
By tradition, the chief justice lends his name to the court era over which he presides. In ideological terms, however, the current court is not the "Rehnquist Court" but, as some wags have put it, the "O'Kennedy Court." Either Sandra Day O'Connor or Anthony Kennedy holds the swing vote on virtually every major issue -- abortion rights, affirmative action, voting rights, separation of church and state, the death penalty and the balance of power between the states and the federal government.
Under the controlling influence of O'Kennedy, a slender majority has driven the court steadily to the right during the last 15 years. But, for the most part, Kennedy or O'Connor (or both) have put the brakes on radical change. In many areas of law, they have reached the limit of their acquiescence in the aggressive agenda that Rehnquist, Antonin Scalia and Clarence Thomas have pursued.
Simply put, O'Connor and Kennedy have brought the court to a right-of-center equilibrium. For example, while they voted in 1992 to limit the right to abortion announced in Roe v. Wade, they prevented the court from overturning Roe and explicitly endorsed Roe's core principles. While they cut back on affirmative action in 2003, they stopped the court from banning it entirely. And while they helped undermine the protections provided by the famous Miranda warnings, they cast key votes in 2000 in Dickerson v. United States to reaffirm Miranda itself.
On a few occasions, much to the consternation of their more conservative brethren, O'Connor and Kennedy have expanded constitutional protections. Two years ago, Kennedy authored the lead opinion (with O'Connor joining in the result) that granted constitutional status to homosexual relationships and recognized the right of homosexuals to engage in consensual sex in the privacy of their homes.
The court's approach to these and many other areas of law will not change if, as now seems inevitable, Bush appoints a successor to Rehnquist. True, GOP gains in the Senate last Tuesday may make it easier for Bush to name an ideological conservative in the mold of Scalia or Thomas (although Arlen Specter, a key Republican on the Senate Judiciary Committee has warned Bush against nominating extremists).
Even assuming Bush ignores Specter's advice, the president would merely be exchanging one hard-core conservative vote for at most a marginally harder-core vote. The basic arithmetic of the court's three-on-the-right, two-in-the-middle, four-on-the-left configuration would hold steady. Given the central truth that, as the late Justice William Brennan used to like to say, "It takes five votes to change anything around here," this means both O'Connor and Kennedy still would have to acquiesce in any further rightward shift in legal doctrine.
There is already speculation that Justice John Paul Stevens -- the oldest justice at 84 and the senior member of the court's more liberal wing -- will also retire during Bush's renewed tenure. But this is no certainty. Being a Supreme Court justice is a splendid job accompanied by myriad support systems, including a cadre of doting law clerks who make the workday only as taxing as an individual justice chooses.
The disincentives to retirement, moreover, are substantial. To name only the most obvious, the justices who have retired over the last 20 years or so have all declined rapidly, as often happens to the elderly when they lose the organizing core of their daily life. Stevens shows few signs of slowing down. Oliver Wendell Holmes served until he was 90. Stevens may well make it to 88, and the end of Bush's second term.
Suppose Stevens steps down. Predictions of a radical shift rest on the belief that Senate Democrats, along with moderate Republicans, would fail to prevent the confirmation of two Scalia-mold conservatives.
But, even assuming that the Senate does confirm another Scalia type to replace Stevens, O'Kennedy would still have the power to prevent significant departures from the jurisprudential status quo that they have forged simply by aligning themselves in key cases with the remaining three more liberal justices (David Souter, Ruth Bader Ginsburg, and Stephen Breyer). O'Connor and Kennedy both keenly understand the role they play in restraining a full-fledged dismantling of the liberal civil rights and civil liberties precedents of the 1960s and '70s. It is hard to see why they would not steer the court together just as they have steered it independently for the last decade and a half.
Of course, all bets are off if O'Connor, now in her mid-70s, decides to retire as well. But why should she? O'Connor wields more power than any other judge on this planet; she seems to enjoy the role; and she is a heroine to huge national constituencies. Rumors of her impending retirement notwithstanding, she stays.
The prospect of Rehnquist's retirement presents Bush with an opportunity of a different kind. The chief justice sets a tone for the court's internal life and he also, by dint of seniority, gets to author a large number of high-profile and broadly significant opinions.
Rehnquist's 18-year stewardship has been troubling in both respects. To begin with, by his own candid account, Rehnquist discourages internal debate among the justices. He does not believe that substantive discussion around the court's conference table changes anyone's mind -- and is, thus, a useless hindrance to the efficient administration of court's business on which Rehnquist places a high priority.
In addition, Rehnquist has adopted a peremptory style for his opinions. Even in important cases, they often lack a deep level of reasoning and rarely take account of criticisms leveled by other justices. In law, this is know as an ipse dixit approach: It is so because I say so.
Regardless of ideology, these are not salutary qualities for the court. After all, as a matter of democratic theory, the nation yields extraordinary power to the nine, unelected, life-tenured justices because we believe that the court's decisions reflect a higher level of deliberation and reasoning than decisions made through the elected branches of government. When a chief justice discourages deliberation and eschews deep reasoning, he undermines the court's very reason for being.
Whether Bush chooses a chief with the judicial politics of Scalia or O'Connor or Souter, it would be best to select someone who cherishes the values of debate and persuasion -- and sees the court as a forum for a principled engagement on the issues that cleave us so terribly and not simply as a mirror in which to observe our most divided selves.