The Supreme Court and the Possibility of a Hard Right Turn

Published 6/26/2005

It is a true sign of desperate times when liberals are fretting over of the expected retirement of Chief Justice William Rehnquist. It is not that they have come to love Rehnquist — once called the “Lone Ranger” for his strident conservative dissents on the Warren Court. Yet, liberals have learned that there are actually judges to the right of Rehnquist, a number of whom are on the short list to replace him. It is like Luke Skywalker celebrating the demise of the Emperor only to learn that he was considered the mild-mannered runt of the litter.

Conventional wisdom holds that swapping a Rehnquist, 80, with another conservative simply preserves the current division of the court. This oversimplification ignores the fact that Rehnquist occasionally surprised people, as he did in his 2000 opinion upholding the 1966 Miranda decision and its requirement that police inform arrestees of their rights. Likewise, he joined his liberal colleagues in holding that states could be sued for violating women’s rights on family and medical leave — a departure from his own states’ rights cases.

Such surprises are not expected from the short-list judges — jurists viewed as the purest among the hard-right faithful. Some of the short-listers hold views rejected by Rehnquist as too extreme. (Related story: A look at the leading Court candidates)

Even only Rehnquist’s retirement might produce some significant changes. For example, Rehnquist voted in 2003 in a 5-4 ruling to reject First Amendment protections for cross burnings. The possibility of two vacancies has both liberal and conservative groups raising millions of dollars for their war chests.

Due to decades of a fairly stagnant 5-4 division, an unprecedented number of fundamental doctrines is dangling by a single vote. This term, the court added 5-4 decisions to this list, including last week’s sweeping one that allows cities to take private homes and give the properties to private developers.

Moreover, when considered on the basis of age and health, the three other most likely retirements would cause the center of gravity on the court to shift sharply to the right: John Paul Stevens (85), Sandra Day O’Connor (75) and Ruth Bader Ginsburg (72 with a history of cancer).

The replacement of any of these justices could produce the most transformative doctrinal changes in the court’s history. Consider just a few areas resting on the bubble:

•Abortion. These three justices represent half of current votes supporting Roe v. Wade. A loss of one of the three could flip a 5-4 decision protecting “partial-birth” abortions. If President Bush replaced just two, he could deliver the holy grail of conservative politics for at least four decades: the overturning of Roe.

•Affirmative action. Change one of the three and you change the result in the 2003 Grutter decision, in which the court upheld the use of affirmative action programs in university admissions.

•Campaign financing and reform. Replace one of the three and you reverse the court’s 5-4 ruling in 2003 upholding federal restrictions on campaign financing — wiping away years of hard-fought legislative reforms.

•Church and state. A loss of any of the three would likely shift the balance in religion cases, allowing greater entanglement of church and state.

•Death penalty. The court’s recent 5-4 ruling barring the execution of juveniles could change with the loss of either Stevens or Ginsburg.

•Disability. One change could flip a series of 5-4 decisions on disabilities law. These include a decision last year allowing the disabled to sue states for access to courthouses and this year’s ruling (with Stevens and Ginsburg in the majority) extending the disability act to foreign cruise liners.

•Discrimination. A loss of any of three could reverse the result in a number of discrimination cases, including recent opinions supporting the broad application of Title IX, the federal law imposing gender equity in school sports.

•Environmental laws. These three justices are part of a slim five-vote majority on various environmental rulings, such as the recent opinion upholding the right of the Environmental Protection Agency to stop states from issuing construction permits below compliance standards.

•Federal sentencing. A loss of either Stevens or Ginsburg could flip the result in the court’s recent decision striking down portions of the federal sentencing guidelines — a historic decision giving judges greater discretion in criminal cases. Likewise, such a change could undo the landmark 2000 ruling in Apprendi, in which the court barred judges from increasing sentences without factual findings from a jury.

•Gay rights. A loss of two of the three justices would lose the majority in the 2003 Lawrence decision that struck down anti-sodomy laws as well as some related decisions.

•States’ rights and federalism. Rehnquist’s “Federalism Revolution” struck down various federal statutes as intrusive of states’ rights, such as the Violence Against Women Act. One or two new justices could restart the federalism revolution with a vengeance.

These are just a few of the highlights from an impressive list of close decisions and do not include areas such as criminal procedure, where numerous rulings hang by one vote. After decades of division, the sudden emergence of a stable majority would be revolutionary for the country.

For Bush, there is nothing less than a legacy at stake. With two or three appointments, Bush could have the greatest effect on the Supreme Court (and the country) of any president in history.

For Rehnquist, such a legacy is already reality. Few chief justices can claim his success in reshaping the court. Indeed, the dismantling of Earl Warren’s legacy was the foundation for his own. In terms of his impact on the law, Rehnquist now ranks as one of the greatest chief justices in history.

However, even a few years ago, Rehnquist never could have imagined the scene that appears likely to unfold: the streets lined with mournful liberals as the Lone Ranger rides into retirement.