Election could tip balance of Supreme Court
Changes could effect a range of hot-button issues
From Bill Mears
CNN Washington Bureau
WASHINGTON (CNN) -- With retirements looking more likely, the next president could help tip the balance of the nation's highest court, which now stands in a loose 5-4 conservative majority.
All but one of the nine U.S. Supreme Court justices is over 65, and many Court watchers expect at least one, perhaps as many as four, retirements in the next four years.
Any change could potentially have enormous political, social and legal implications on a range of hot-button issues.
"It could change the way this country operates for the next 40 years, well beyond the time the president is in power," said Paul Rothstein, a Georgetown University law professor.
The issue has come up in two presidential debates and is hotly debated among a number of political and issues groups, who have used a possible change on the Court to rally supporters and raise money for their causes.
Sen. John Kerry, the Democratic challenger has also aired television ads. In one from April, a narrator says, "The Supreme Court is just one vote away from outlawing a woman's right to choose. George Bush will appoint anti-choice, anti-privacy justices. But you can stop him. Help elect John Kerry."
One reason for voter interest is that a closely divided electorate mirrors the Supreme Court's current ideological makeup, and a change of a singe justice could quickly shift the future of laws affecting abortion, death penalty, gay rights, race relations, religious expression, and the power of the federal government to override state laws.
A recent CNN/USA Today/Gallup poll found 53 percent of those surveyed believe President Bush would do a better job handling Supreme Court nominations while 37 percent favored Democratic challenger Sen. John Kerry.
Kerry, like Al Gore four years before, has talked frequently about having a Supreme Court "that will protect our hard won victories."
He told the National Baptist Convention last month, "It was just four short years ago that the Court -- by one vote -- decided the outcome of the race for president. It was less than a year ago that the Court -- by one vote -- decided the fate of affirmative action. One vote can make the difference for millions of Americans, and over the next four years the president of the United States will appoint as many as four Supreme Court justices."
President Bush has said little on the issue, but he noted in the 2000 presidential campaign that two justices he admired were conservatives Antonin Scalia and Clarence Thomas.
During the second presidential debate in St. Louis on October 8, neither Bush nor Kerry would offer specifics on who they would nominate to the high court. In the final debate in Arizona, Bush repeated his past aversion to any legal "litmus test" when naming judges, while Sen. Kerry said he would not pick a candidate who would reverse any constitutional right, such as the right to an abortion.
But all that rhetoric hinges on who would leave the Supreme Court bench, and when. The nine current members of the Court have been together a decade, the longest uninterrupted span in nearly two centuries.
No justice planning to leave
Legal analysts have long been predicting a retirement was imminent, only to be proven wrong. Sources at the Court say there are no current plans for any justice to step down, particularly in an election year.
And by all accounts the group of nine get along well personally, despite their ideological differences. Sources also say the justices enjoy their job and are fully engaged in the daily business of the court. Yet some legal analysts predict change will come sooner rather than later.
"If Bush is re-elected, I would suspect several justices would step down in the next four years," said Michael Gerhardt, a constitutional expert at William and Mary's Law School.
Chief Justice William Rehnquist is considered by many the next candidate to retire. He has been on the bench since 1972 (18 as chief justice) and turned 80 recently. He has suffered in the past from back and leg problems.
Rehnquist told an interviewer in 2001 that "traditionally, Republican appointees have tended to retire during Republican administrations." He would not expand on that thought, but it suggested a political realization that presidents should be allowed to replace one justice with another of similar ideology.
O'Connor a key swing vote
Justice Sandra Day O'Connor, 74, may share a similar ideology. She is the only current justice to have served in elective office, as a state senator in Arizona.
She was nominated by President Reagan in 1981, and recovered from breast cancer 16 years ago. Like the other justices, O'Connor sidesteps talk of retirement, and even joked about the process following her recovery from surgery.
"The worst was my public visibility, frankly," she said. "There was constant media converge: 'How does she look?' 'When is she gonna step down and give the President another vacancy on the Court?' 'You know, she looks pale to me, I don't give her six months....'"
As a key swing vote, O'Connor's absence may cause the most immediate impact on a fractured Court.
"She has created the majority in many, many cases of important social issues. These 5-4 votes, she is the fifth vote," said Rothstein. "She is the power of the Court. Who she gets replaced by, similar swing vote or a strong conservative or a strong liberal can determine some very big social issues."
Justice Ruth Bader Ginsburg, 71, also had cancer surgery.
Another potential retiree is Justice John Paul Stevens, at 84 the oldest justice. Nominated in 1975 by President Ford, Stevens has since carved out a reliably liberal record on the bench, and many wonder whether he would step down if President Bush is re-elected.
Among the other justices, Scalia and Anthony Kennedy are 68, Stephen Breyer is 66, and David Souter is 65. Only Justice Thomas at age 58 is ineligible for Social Security.
"I think if, Kerry wins there's a reasonable chance that you might see Justice Stevens step down," predicted Edward Lazarus, a former Supreme Court clerk, and author of a book on the justices. "And if Bush wins, I think there's a reasonable chance you'd see the chief step down. I think we're getting close to it."