Gang of Five

WASHINGTON -- They have gone for the summer, but they promise to return. All of them. Sandra Day O’Connor did not announce she was leaving the Supreme Court, contrary to all the informed (that is, sheer) guesswork that predicted she‘d be out the door when the session ground to a halt on June 27.

For some time now, O’Connor has been the swinger in this crowd, and the session just ended proved no exception. She was the crucial fifth vote on the Zelman case, which legalized school vouchers, though she swung the other way (as did Anthony Kennedy) to ban the execution of the mentally retarded. Twenty-one of the court‘s 79 decisions were 5-4 splits, and 14 of those pitted the court’s four moderates (John Paul Stevens, David Souter, Ruth Bader Ginsburg, Steven Breyer) against the Rehnquist conservatives (O‘Connor, usually; Kennedy, almost always; and Antonin Scalia, Clarence Thomas and William Rehnquist -- great legal minds of the 18th or 19th century, depending on the case -- invariably). On 10 of those cases, O’Connor hung with Rehnquist, but on four cases, she migrated to the moderates.

So the question of O‘Connor’s replacement -- in a limited sense, the judicial equivalent of who will control the next Congress -- has been sidestepped yet again. Bush will surely appoint a conservative (and if Karl Rove has anything to say about it, a Latino conservative), but Senate Democrats will want a conservative with O‘Connor’s capacity for deviation.

The replacement of any of the Supremes over the next couple of years is bound to be hugely -- and rightly -- divisive. For one thing, the right has focused mightily on taking over the courts during the past several decades, partly on the theory that it is easier for a court to devise controversial right-wing law in its rulings than it is for a Republican president or Congress to sign or enact it. Thus, while George W. Bush dropped all reference to school vouchers in his education bill (vouchers, as Rove knows, aren‘t all that popular), the five justices were able to boldly go where Bush could not: They’re not facing any voters. It‘s all working according to plan: On the genuinely touchy issues, W. can sound compassionate, while the court delivers the conservative boom. And the right knows that just one more justice in the ScaliaRehnquist tradition will mean we make the long-awaited shift to Old Testament law.

But the question of the next justice should also be highly charged for quite another reason: For the next two and a half years, there shouldn’t be one. Yale law professor Bruce Ackerman has made a persuasive case that the Gang of Five‘s most notorious decision -- bestowing the presidency on George W. -- violates the Constitution’s separation-of-powers doctrine. By selecting a president who then selects the justices, this court essentially conferred upon itself the right to choose its own successors -- a task the Constitution delegates to the president, with the concurrence of the Senate. Should a president thus chosen appoint someone to the high court, Ackerman argues, it will totally scramble the functions and identities of our three branches of government. (This prohibition would only apply to the current presidential term, unless the president elected in 2004 is also court-appointed.)

Now here‘s a crusade for some gutsy Senate Democrat! So gutsy, I’d wager, that he or she probably doesn‘t exist. It’s hard to imagine that any of them will fight such an appointment along Ackerman‘s lines. But liberals and constitutionalists abroad in the land had damn well better.

Behind a number of the Gang’s decisions in the session just ended, there lurked some troubling legal doctrines. The first, in the voucher case, is Rehnquist‘s novel reconstruction of the First Amendment’s establishment clause: ”Congress shall make no law respecting an establishment of religion . . .“ Over the past century, this has been increasingly taken to mean that there must be a wall between church and state. The newborn United States, after all, was not like the nations of Europe, with their official churches: It had Anglicans, some Catholics, a few Jews, and 57 flavors of Protestants. Many of our first citizens were appalled at the thought that the government might in some way assist one of those wayward churches that had it all wrong about God or hierarchy or ritual. (Nothing engenders a separation of church and state quite as much as devout religious sectarianism.) The Founding Fathers, who had more than a smattering of secularists and deists among them, thought social harmony required the government to stay completely out of all things religious. That said, most Americans viewed America as a Christian country -- though their number fell substantially throughout the 20th century as the nation grew more urban, cosmopolitan, secular and diverse, and as churchgoing waned. All this tended to reinforce the notion that the First Amendment really erected that wall.

Now, chunks are breaking off. Rehnquist has long argued (and I rely here on the reporting of Linda Greenhouse, who covers the court for The New York Times) that if a government benefit is offered to private individuals who can use it to get a service offered by either a church or the state, then the element of choice means that no law has been made ”respecting an establishment of religion.“ In the real world, of course, the modest-size vouchers that inner-city residents will receive will, if exercised, likely go disproportionately to religious schools, which are numerous and relatively cheap. What the court said, then, is that the government can indeed have laws respecting an establishment of religion, so long as they get there on a bank shot.