The off-the-cuff reaction of most left-leaning legal and political observers
on hearing U.S. Supreme Court Justice Sandra Day O’Connor’s surprise retirement
announcement was that this is huge. An earth-shaker. Political and cultural Armageddon.
The final days. Goodbye to everything. We’re doomed.
On reflection, there’s calm. Just how likely could it be, after all, that President
Bush would appoint, and the Senate would confirm, a religious conservative bent
on ending abortion rights, blocking the advance of civil liberties, erasing the
separation between government and religion and upholding the federal government’s
expansive view of wartime powers?
The thinking goes that Bush is polling low, so that vaunted political capital
he talked about on that morning-after-Election Day news conference is not all
there for the spending. Republicans, generally, are no longer riding so high,
with the public growing restless over Iraq. Senate Republicans know assisted suicide
when they see it, and they want nothing to do with it — and it would be political
suicide, after all, to squander their remaining capital on a bruising court confirmation
battle. They may talk big, but when push comes to shove, what they really want
is a moderate like O’Connor. A little saber-rattling, some posturing, then some
face-saving, and a moderately conservative appointee. Everybody just sit down
and take a breath.
Besides, Supreme Court justices often prove to be an ornery, unpredictable lot
after their appointments. O’Connor, for example, was supposed to be an anti-abortion
conservative but ended up joining with the court’s (relatively) liberal faction
for key decisions on choice and affirmative action.
Unfortunately, the first reaction is probably the correct one.
No matter how low Bush’s poll numbers go, he’s still the president and still gets
to nominate justices to the Supreme Court. As the Iraq adventure goes south, and
as his Social Security overhaul plan withers, Bush will search for an enduring
legacy. And nothing says legacy more than Supreme Court appointees, who will go
on giving shape and meaning to law and the Constitution long after he is gone.
It’s a sobering fact that the leading “moderate” most often mentioned by pundits
since O’Connor’s announcement is Alberto Gonzales, the former Texas Supreme Court
justice, White House counsel and now attorney general. He’s a moderate, and beyond
the pale for Bush’s religious and hard-right supporters, because his rulings in
Texas suggested that maybe affirmative action was okay in some circumstances and
that maybe some pregnant girls, in some few circumstances, should be able to get
abortions without first notifying their parents.
And could it be anything but good if the first-ever Latino is appointed to the
That puts liberals in the position of breathing a sigh of relief if Bush sends
Gonzales’ name to the Senate, and being relatively content if the Senate okays
a man who omitted key information from the memos on which Bush relied in making
death-penalty decisions in Texas; advised Bush that the Geneva Conventions for
wartime conduct are obsolete; and, apparently, wrote a memo explaining why detainees
could be tortured.
Bush, meanwhile, would score points for advancing Latinos and maybe even score
a Newsweek cover for Gonzales to combat the one that featured Antonio Villaraigosa
on his election as the first Latino mayor of Los Angeles in more than a century.
That’s the best-case scenario. That’s if Bush does not immediately fulfill his
commitments to religious conservatives by appointing a justice with a strong religious
and social agenda. That’s without an attempted Democratic counterpunch, and without
Senate Republicans returning to their threatened “nuclear option” of ending the
supermajority vote needed to end a filibuster.
But what Bush knows, and liberals know too, if they allow themselves to think
about it much, is that O’Connor is just the first of, probably, many.
We may yet hear a retirement announcement from Chief Justice William Rehnquist, who is in poor health. No big deal, you say, because he’s already a conservative and how much worse could his replacement be? Yes, he’s a conservative. But next to Antonin Scalia and Clarence Thomas, he’s part of the moderate O’Connor camp.
And then? And then come the court’s most liberal justices. John Paul Stevens is
85, and has been treated for cancer. Ruth Bader Ginsburg is 72, and has been treated
Bush went his entire first term without a Supreme Court appointment, and
the court barely registered as an issue in his re-election last November. The
court itself has gone 11 years without a change in its ranks. That’s a first in
living memory — and, under the law of averages, it means that a large-scale personnel
change is due.
So even if Bush doesn’t appoint a single hard-right conservative with a professed
goal of overturning Roe vs. Wade, a pregnant woman’s control over her body
is on the block. The prospect that Roe may never be overturned may irk
some conservatives, but it means little to many right-wing legal scholars and
activists. In dribs and drabs, it will be whittled away. Laws requiring parental
consent for minors, like the one on the books in Texas, or the one on the ballot
in California this November, will proliferate. Waiting periods. Notifications.
The irony may be that Americans today would vote to uphold Roe but may
watch it evaporate in the hands of the Bush court.
But it’s never clear what the high court is going to do, and it’s often never
clear until years later just what the rulings mean.
Take some of the key rulings from the term just ended, for example. It’s a bedrock
value of Reagan conservatives to press for legal opinions that diminish the role
of the federal government and promote the power of states to legislate as they
see fit. This court, with O’Connor taking the lead, has charged forward on the
new federalism. Except in the case of marijuana, where this year the court rediscovered
the power of the federal government and prevented the people of California from
allowing medical use of marijuana. So is this case the foundation for a retreat
from states’ rights? Or is it simply a marijuana exception?
Or how about the troubling Kelo decision, which allows municipalities —
in Connecticut, at least — to confiscate private property to turn over to developers
if they can boost their tax revenue in the process?
Conservatives are the ones who generally go berserk over government’s attempts
to limit private property rights. And they were at it again here, with O’Connor
striking her conservative pose in a dissent joined by archconservatives Thomas,
Scalia and Rehnquist. The majority opinion, which says it’s okay for cities to
act in what they perceive as their best interests, made one of California’s most
right-wing legislators, Tom McClintock, throw a fit and try to introduce a constitutional
amendment to turn back the clock. So that’s got to mean a good progressive ruling.
The majority opinion was written by the good liberal Stevens, and joined by Anthony
Kennedy, David H. Souter, Stephen G. Breyer and Ginsburg. So three cheers for
the liberal justices! Right?
Wrong, probably. This ruling will allow cities to clear out old, ethnic neighborhoods
where the home values aren’t too high and build fancy-priced housing for a new
generation of gentrifiers. Or, perhaps, for a Wal-Mart. Those weren’t the facts
of the case in Connecticut, but they could be in some other state. California
is arguably exempt, because we have a law that limits redevelopment to “blighted”
areas. But cities here have enjoyed wide discretion over the concept of blight.
If the thriving ethnic enclave isn’t producing as much property tax revenues as
a big-box store might, perhaps it’s blighted.
It can be hard to tell what a Supreme Court ruling will mean a year or a decade
down the line, and whether an obscure opinion will, in the end, outlast a headline-maker
that deals with displays of the Ten Commandments.
So what’s a good progressive to do, when it’s no longer possible to tell the “good”
justices from the others?
There is, sorry to say, no substitute for paying attention and doing your own
thinking. And perhaps, a little hoping and praying. Whoever the president picks
to replace O’Connor will, as soon as October, be hearing arguments on injunctions
against abortion clinic protesters, New Hampshire’s parental notification law,
peremptory challenges by prosecutors against a jury’s only two black members,
and the chance for a condemned prisoner to get one more chance to present a case
based on DNA evidence.
There will be other cases as well, and the only thing we can know about them for
certain today is this: Like it or not, they will produce legal precedents shaped
a little, or perhaps a lot, by jurists selected and appointed by George W. Bush.
The off-the-cuff reaction of most left-leaning legal and political observers