Now the battle begins

Jul 1st 2005
From The Economist Global Agenda

Sandra Day O'Connor has announced that she is stepping down after 24 years on America's Supreme Court. The court's chief justice, William Rehnquist, is also expected to retire soon. Liberals and conservatives are preparing for a bruising battle over their successors

FOR weeks, legal circles have been humming with anticipation that one of the nine justices on America’s Supreme Court would retire—probably William Rehnquist, the chief justice, who has thyroid cancer. The crowd that gathered outside the court earlier this week in the hope of an announcement before it recessed for the summer was not as big as the one that held vigil for Pope John Paul II, but it was nearly as breathless. Eventually the court rendered its final rulings and departed with no word of retirements, and the deflated crowd dispersed. But the disappointment did not last long. On Friday July 1st Sandra Day O’Connor, the Supreme Court’s first female justice, announced that after 24 years on the court she would step down as soon as President George Bush could appoint a replacement.

Now the long, hot battle begins. There hasn’t been an opening on the Supreme Court since Stephen Breyer was appointed in 1994. Since then, the long struggle between Democrats and Republicans for control over the unelected branch of the federal government has grown increasingly bitter—perhaps unsurprisingly so, given that Supreme Court justices wield a power in some respects like the Pope’s. They are appointed for life and accountable to no one. Their job is to uphold a venerable text, which empowers them to overrule any other branch of government. They are the final arbiters of the limits within which Americans must live, so it is hardly surprising that when a vacancy occurs, the question of who will fill it arouses a fair bit of excitement.

Many of the court's most important decisions have been made by the narrowest of margins, five votes to four, and Ms O’Connor has been the swing vote on some of the most high-profile ones. With her gone, liberals fear that Mr Bush now has an opportunity to appoint someone more conservative. Just one more conservative justice, they tremble, might blur the separation of church and state, roll back affirmative action and gay rights, and perhaps even overturn Roe v Wade, the landmark 1973 case that legalised abortion across the country. Many social conservatives, of course, are praying that Mr Bush will pick justices who will do precisely that. “The Supreme Court is our number one issue,” says Patrick Trueman, a senior legal counsel for the Family Research Council.

Family-values enthusiasts are confident that Mr Bush wants to push the court their way, but that is no simple matter. First, anyone he nominates must be approved by the Senate, and the Democrats will probably try to filibuster any nominee they hate. It is still not clear how the recent bipartisan deal over this delaying tactic will apply to Supreme Court appointments. But Mr Bush has to steer between the Charybdis of choosing somebody whom his base dislikes and the Scylla of choosing somebody who is so conservative that moderates will oppose him too.

The Democrats, of course, want to pull the court the other way. Mr Rehnquist, a solid conservative vote, is still expected by many to announce his retirement sometime this summer. If Democrats can somehow force Mr Bush to put two moderates in the place of the departing justices, this will nudge the court a little to the left. But it is a slim hope.

In any case, all this assumes that Congress knows what the nominee really thinks. Seven of the nine incumbents were appointed by Republican presidents, but some, notably David Souter, have proven less conservative than expected. One cannot necessarily discern what a judge in a lower court believes simply by looking at his rulings, because he is obliged to defer to precedents established by the Supreme Court. If he joins it, he can rule as he pleases.

To make matters more complicated, the court does not always divide neatly along ideological lines. Sometimes, the “conservatives” stick up for “conservative” causes, as in this week's two rulings on displays of the Ten Commandments on government property. In both cases, Clarence Thomas, Antonin Scalia, Anthony Kennedy and Chief Justice Rehnquist deemed such displays acceptable, while Justices Souter, O'Connor, John Paul Stevens and Ruth Bader Ginsburg said they weren't. Justice Breyer reckoned that the one in a Kentucky courthouse was no good, but the one outside the Texas capitol was fine, because it was less prominent and surrounded by secular artefacts. This diluted the implied official endorsement of Christianity, apparently.

Sometimes, however, “conservative” justices make “liberal” rulings. Earlier this month, the Supreme Court had to decide whether federal anti-drug laws took precedence over a California law that decriminalised marijuana for medicinal purposes. The court said that they did, because Congress regulates inter-state commerce. Mr Thomas, who is usually pigeonholed as the court's most conservative member, was one of three dissenters—not because he is a big fan of pot, but because he thinks that it is a big stretch to say that growing it in your backyard to ease the pain of terminal cancer affects inter-state commerce.

The important fact about Mr Thomas is not that he is conservative, but that he is the strictest of the “strict constructionists”. That is, he thinks the constitution means what it says, nothing more. The court's job, he believes, is to apply it, not to “interpret” it in pursuit of desirable social outcomes. He approaches this task with anger and some clarity of thought, as his opinion in Kelo v New London showed last week.

The case concerned a city council that wanted to expropriate a stretch of waterfront, against the wishes of some of the people who owned houses there, so that developers could bulldoze them and build a hotel. The liberal justices sided with big government and big business to set a new precedent: the constitution allows such “takings”, so long as the owners are compensated and their land put to “public use”. This has previously been taken to mean something like a public highway. But by a 5-4 majority, the court decided to expand the meaning of “public use”: the government can seize land on behalf of private developers, so long as there is a vague “public purpose”, such as generating more tax revenues.

This would appear to give the government the power to kick anyone out of his home to make way for someone richer. “If such ‘economic development’ takings are for a ‘public use’, any taking is, and the court has erased the public use clause from our constitution,” wrote Mr Thomas in dissent. A conservative prankster promptly filed a petition to confiscate the house of Mr Souter, one of the majority, and build a “Lost Liberty Hotel” over it.

Although strict constructionism is not the same as conservatism, the two philosophies often coincide. This is because since the 1930s the Supreme Court has generally stretched the constitution for progressive ends. One example is the vast expansion of federal power to regulate the economy that the justices approved during the New Deal era. But the one that irks conservatives most is Roe v Wade.

The American way

Other countries expect their legislators to legislate on contentious moral issues. In Belgium and the Netherlands, elected representatives have voted to legalise gay marriage, as did the Spanish and Canadian parliaments this week. The same is true, one way or the other, with abortion. Most European parliaments have legalised it; an Irish referendum kept it illegal.

In America, by contrast, conservatives whinge that abortion is legal because a majority of judges, after peering into the constitution's “penumbra”, discovered a right to abortion that had lain hidden for centuries. As the young Mr Rehnquist put it: “To reach its result, the court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”

One reason why the debate about abortion and other moral issues has been more bitter in America than elsewhere is that many Americans believe that the Supreme Court has usurped powers that properly belong to Congress, the states or the people: that unelected judges are “legislating from the bench”.

Mr Thomas and Mr Scalia believe this with a passion. Mr Rehnquist believes it, too, but he is more reluctant to scrap long-standing precedents. In 2000, for example, he voted to re-affirm the Miranda ruling of 1966 (obliging police to remind criminal suspects of their rights when arresting them), although he had earlier expressed doubts about its constitutionality. His reasoning was that Miranda “has become embedded in routine police practice to the point where the warnings have become part of our national culture”.

Mr Bush has said that he would like to appoint more strict constructionists: he cites Mr Thomas and Mr Scalia as his models. A Supreme Court packed with Clarence Thomases would be revolutionary. It would seek to reduce its own power, but retroactively, overturning decades of rulings it believed the constitution never empowered its predecessors to make. Abortion rights, environmental protections, labour regulations: none would be safe.

It is a startling prospect, but probably a distant one. Too much radicalism might cost the Republicans future elections, so Mr Bush may opt for caution. And whatever the composition of the post-O'Connor, post-Rehnquist Supreme Court, it is rare that an institution deliberately shrinks its own powers. Would the pope renounce the doctrine of papal infallibility?

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