A Scalia or Ginsburg Court?: Voters Hold the Key - appointment of conservative or liberal judges depends on outcome of presidential election - Brief Article

USA Today (Society for the Advancement of Education), Sept, 2000 by Robert J. Bresler

WHATEVER THE RESULTS of the coming election, the President and Congress will probably try to steer away from controversial social issues. By contrast, the Supreme Court seems unable or unwilling to avoid them. Since the era of the Warren Court, the Supreme Court has been at the center of some of our most explosive public policy issues, such as racial and gender preferences, prayers in school, aid to religious schools, partial-birth abortion, and single-sex education.

The Court is closely divided on these as well as the emerging issue of federalism and states' rights. Much speculation has been directed at the possibility that the three senior members--Chief Justice William H. Rehnquist (age 75) and Associate Justices John Paul Stevens (80) and Sandra Day O'Connor (70)--could retire during the next administration. Their successors could determine the future of American constitutional law for decades to come.

The current justices often break down into three factions: Rehnquist, Antonin Scalia, and Clarence Thomas constitute the conservative group; O'Connor and Anthony Kennedy make up the moderate swing votes; and Stevens, David Souter, Ruth Bader Ginsburg, and Steven Breyer represent the liberal wing. In last June's decisions on gay scoutmasters (Boy Scouts of America v. Dale) and partial-birth abortion (Stenberg v. Carhart), the Court split 5-4. In the former decision, the Court upheld the Boy Scouts' right to exclude gays from their organization, and in Stenberg, they overturned Nebraska's law prohibiting partial-birth abortions. In the Scout case, the two swing justices joined with the conservatives; in the abortion decision, they sided with the liberals.

Should George W. Bush be elected and make the next appointments, particularly with a Republican Senate, the swing group would lose its influence, opening the way for a sharp departure from current constitutional interpretation. When Pres. Ronald Reagan elevated Rehnquist to Chief Justice and appointed Scalia as Associate Justice in 1986 (two strong conservatives), the Republicans controlled the Senate. In 1987, after the Democrats recaptured the Senate, Reagan was unable to get the conservative Robert Bork confirmed and had to settle for Kennedy, a far more moderate candidate. In 1990, with the Democrats in control of the Senate, Pres. George Bush nominated Souter, whom he thought was a closet conservative, but turned out to be a closet liberal. In 1991, Bush just barely got Thomas confirmed.

If the Court had followed the predilections of those presidents who had appointed them, it would be overwhelmingly conservative. Only two justices, Breyer and Ginsburg, were appointed by a Democratic president, and two others, Stevens and Souter, named by Republicans, have turned out to be the kind of justices a Democrat would select. Should the Republicans get another shot at shaping the Court, they will be careful not to repeat those mistakes.

A President George W. Bush, with no need to pacify a Democratic Senate, could select a conservative with a documented judicial philosophy. In a recent article, the National Journal named six such appellate court judges as possible Bush nominees: J. Michael Luttig (age 45) of the 4th Circuit; Edith Jones (51) of the 5th Circuit; Emilio Garza (52) of the 5th Circuit; Samuel Alito (50) of the 3rd Circuit; J. Harvie Wilkinson III (55), chief judge of the 4th Circuit; and Frank H. Easterbrook (51) of the 7th Circuit. Three of those, added to Scalia and Thomas, could constitute a powerful conservative majority.

In such a Court, Scalia, whom Gov. Bush considers his model Supreme Court justice, could well be the intellectual leader, a role that Justice William Brennan played so effectively in the Warren Court. Scalia, unhappy with much of the direction of constitutional law over the last several decades, does not consider the principle of stare decisis ("let the decision stand") sacred. On affirmative action, he believes that racial preferences can only be used to remedy an individual case of discrimination, never as policy. He would dismantle all affirmative action programs, even those the current Court could leave standing. On the matter of abortion, Scalia has made it clear he would overturn Roe v. Wade and turn the issue back to the states. In Dickerson v. U.S., decided in the last term, the Court upheld the Miranda rule requiring that all criminal suspects be informed of their rights. Scalia, along with Thomas, dissented, maintaining that the Miranda rule had no constitutional standing and that all the Constitution barred was compelled confessions.

On the matter of federalism, Scalia has found a majority to place some limits on Congressional power under the commerce clause to punish certain crimes. Emphasizing the limits of the commerce clause, a 5-4 conservative majority has struck down as unconstitutional the Violence Against Women Act of 1994 in U.S. v. Morrison and the Gun-Free School Zones Act of 1990 in U.S. v. Lopez.

Should Vice Pres. Al Gore become the next president, he would only have to replace Rehnquist or O'Connor with a liberal justice in order to establish a liberal majority (assuming Gore would nominate another liberal to succeed Stevens). The impact of these replacements on constitutional law could be as dramatic as Bush's, but far different. A liberal court led by Ginsburg, Breyer, and Souter would likely affirm the legitimacy of racial preferences to remediate past discrimination and maintain diversity. Roe v. Wade would be reaffirmed, giving the states even less leeway in passing restrictions on abortion. The commerce clause would once again be reassigned to its dominant role, allowing Congress to pass almost any law it wishes under that power. Gay rights could be given much greater constitutional protection.