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Copyright 2005 Newsday, Inc.
Newsday (New York)

June 19, 2005 Sunday


LENGTH: 1281 words

HEADLINE: Tipping the scales of justice;
A retirement or two, especially of the chief, could augur significant change for the country

BYLINE: BY RICHARD L. PACELLE JR.; Richard L. Pacelle Jr. is professor and chair of the Department of Political Science at Georgia Southern University. He is the author of "The Transformation of the Supreme Court's Agenda."


In an ironically prophetic statement, President Richard Nixon once remarked that "presidents come and go, but the Supreme Court stays forever."

Indeed, when Chief Justice William Rehnquist resigns - and many believe that is likely in the next few days or weeks - that will officially end Nixon's impact on the Supreme Court more than three decades after he resigned the presidency. The legacy that Rehnquist and the court that bears his name bequeath, however, will last for decades more.

Rehnquist, whose health problems have been well documented, has made no secret of his belief that presidents should fill the court with justices of the same ideological stripe. With President Bush in the White House, the chief justice could leave confident that the president will appoint a like-minded successor. A retirement would end more than a decade of stability on the court - it has been 11 years since a justice was appointed. It is very likely that it will be a much shorter time until one or two more justices join Rehnquist in retirement. This could tip the court significantly, but the retirement and replacement of a chief justice will potentially be the most significant change.

The court is a major policy-maker responsible for the interpretation of the Constitution and the legislation coming out of Congress. For issues such as abortion, civil rights, affirmative action, the rights of the accused, freedom of religion and freedom of expression, the Supreme Court has been the lead actor. Any selection to the Supreme Court is very important, as it represents one of just nine votes and is a lifetime appointment. But the significance is magnified when the vacancy occurs in the center seat.

The chief justice is often referred to as the first among equals. As leader of the court, the chief justice has important powers. The chief justice speaks first in conference. This is important because the court has a massive workload and by speaking first the chief justice can set the agenda. The more significant power is that the chief justice gets to assign the opinion of the court when he votes with the majority. The opinion of the court is the justification for the decision, the precedent for all subsequent similar cases, and it becomes the law of the land.

The power to assign the opinion means the chief justice can write it himself or give it to the justice who is closest to him ideologically. On the current court, if Rehnquist voted his principles and stayed with the losing side, then Justice John Paul Stevens, the most senior and most liberal member of the court, would get to assign the opinion. Suffice it to say, the opinion would look a lot different if Rehnquist assigned it than if Stevens had that prerogative.

The first question President George Bush would need to ask in filling a Rehnquist vacancy is whether he should promote from within the court, elevating one of the current justices to the center seat, or look to the lower courts and bring in a judge not on the Supreme Court.

The advantage of promoting from within is that the new chief would have experience and know his or her colleagues. But the disadvantages seem to outweigh the advantages. First, any justice elevated from within would still need to be confirmed by the Senate and would have a record that could be a target for opponents. Assuming no moderates and liberals need apply for a Bush appointment, the choices would be Antonin Scalia or Clarence Thomas. Choosing either would probably create a major confirmation battle. Second, and more important, history has not been kind to chiefs who have moved from associate to chief justice. It has been hard to move from being equals to being leaders. Even Chief Justice Rehnquist, who is likely to be regarded by history as a good chief justice, was a failure his first few terms. In his early years as chief, Rehnquist voted his conscience and was often in the minority, ceding the authority to assign opinions to William Brennan, who was very liberal.

The chief justice is in a unique position to lead the court and stamp an imprint on the law. Chief justices who have been good leaders have been able to build coalitions, help shape the law to reflect their legal and policy goals and run a smooth and efficient court. The pages of history extol the excellence of some chief justices, but they carry the sad tales of others. John Marshall, Charles Evans Hughes and Earl Warren are considered among the best chief justices. On the other hand, Harlan Fiske Stone, Fred Vinson and Warren Burger are seen as wanting as leaders.

The selection of Rehnquist's successor comes at an important time for the court. The moderately conservative court is closely divided, as the Bush v. Gore decision ending the 2000 election battle revealed. The court breaks down into three blocs of three justices, one conservative, one moderately conservative and one moderately liberal.

The next few years will be critical in several areas. The Supreme Court has redefined boundaries between state and national power, and between individual liberties and the government's authority to keep the peace. It has changed the definition of freedom of religion. Roe v. Wade has a tenuous existence. The court has leaned much more toward crime control than due process. A key vote or two could tip the balance of the court.

Although the replacement of Rehnquist alone is not likely to change the court's ideological composition, the ultimate impact of his successor's selection could be quite significant. With the court so closely divided, an effective leader might be able to persuade one or more of the justices in the center to support his or her interpretation of the law. But the reverse is also possible: An ineffectual chief justice may chase the middle justices to the other wing.

The current wrangling over lower federal court nominees and the recent filibuster compromise are merely a prelude to a battle over a Supreme Court appointment. As the minority party, the Democrats do not have the votes to defeat a nomination on their own, but they can delay the process and possibly force the president to withdraw a nomination. That said, President Bush is less likely to have a contentious battle over Rehnquist's successor than he is when Sandra Day O'Connor or Stevens leaves the court.

When either O'Connor or Stevens departs, a conservative appointment will tip the court ideologically. In many ways, analysts consider this the O'Connor court because she sits in the center ideologically and is almost always in the majority. The replacement for Rehnquist will not alter the ideological balance; it will only lower the average age of the justices. If Bush does his job well and chooses someone relatively young, the president who chooses the next chief justice's replacement is probably now a junior in high school.

The final word on the Rehnquist court will not be written for a long time, but analysts who have tried to assess it as it unfolded have been far from unanimous. Although the Rehnquist court has chipped away at many of the most liberal precedents, few were directly overturned. Yet, Thomas Keck, an expert on the Supreme Court, calls the Rehnquist court the most activist of all time. Indeed, the Rehnquist court has declared more acts of Congress unconstitutional than any of its predecessors.

But in the end, the success of the new chief justice may well be a function of what happens when O'Connor and Stevens retire. The success of a chief justice depends to a large extent on the numbers of supporters he or she has on the court. The replacement of a justice on the left and one in the center with two on the right will strengthen the hand of the new chief.

GRAPHIC: PHOTO - Richard L. Pacelle Jr.; ILLUSTRATION BY TIM FOLEY-The Supreme Court judges as puzzle pieces with one missing

LOAD-DATE: June 19, 2005