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The Supreme Court at year's end is in an odd period of stasis.
There is a palpable feeling that someone hit the pause button,
and no one is sure what will happen when the Court starts
up again.
Will it join the Republican juggernaut that has strengthened
its hold on the other branches, or will it remain defiantly,
sometimes quirkily, contrarian -- as it was in June's enemy
combatant cases and at other times this year?
And will the Court continue on its conservative path of state-oriented
federalism, or will it reverse field, as it seemingly began
to do in May's Tennessee v. Lane decision? Will it
continue to embrace moderate or liberal social doctrines ranging
from gay rights to abortion to affirmative action -- or begin,
as the Bush administration hopes, to retrench?
The answer to those questions did not emerge from the 2004
election, and may not be much clearer in 2005. "It might
become a united moderately liberal or a united strongly conservative
Court," writes Georgetown University Law Center professor
Mark Tushnet in a just-published comprehensive look at the
Court, "A Court Divided: The Rehnquist Court and the
Future of Constitutional Law." "The real impact
of the Rehnquist Court lies in the decisions of the next Supreme
Court."
Uncertainty abounds about the health and future of Chief
Justice William Rehnquist, who is battling thyroid cancer.
The rest of the Court, for reasons unknown, has lagged in
filling its calendar; an argument day in March may be canceled.
And at the solicitor general's office, some of the six newly
hired lawyers face the unheard-of prospect of not arguing
a single case this term. There may not be enough to go around.
The Court may issue fewer rulings than during any other term
in recent memory.
Though things may be on hold now, the sense is strong that
2004 may be the final year in which the current nine justices
sit together. Change is in the air. But what change?
The year 2004 affirmed a growing feeling among Court scholars
and others that the Court is far from being in the grip of
conservative Republicans, though seven of its members were
appointed by GOP presidents. During the presidential campaign,
the Democratic National Committee tried to make the Supreme
Court an issue. But instead of campaigning against the current
Court, its slogan was "Save the Court," which, inadvertently
or otherwise, telegraphed that the justices now serving have
by and large pleased Democrats.
"This is a Republican Court only in the sense that Earl
Warren was a Republican chief justice and William Brennan
was a Republican associate justice," says Court scholar
David Garrow. Liberals Warren and Brennan were appointed by
President Dwight Eisenhower.
"Right now, rather than the least dangerous branch,
the Supreme Court is the least conservative branch -- as a
matter of political outcomes," says John Yoo, professor
at Boalt Hall School of Law at the University of California,
Berkeley, a former clerk for Justice Clarence Thomas who served
in the Bush Justice Department.
Because of its centrist Republican appointees John Paul Stevens,
Sandra Day O'Connor, David Souter and Anthony Kennedy, the
Court has not always marched in the direction charted by Rehnquist
and his conservative allies, Antonin Scalia and Thomas. O'Connor,
who replaced the late Potter Stewart, has increasingly taken
on some of Stewart's decision-making attributes, says Garrow
-- moderate, practical and unpredictable.
"The Court is lagging behind other political developments,"
says Garrow, "and it's not that surprising, because the
Republicans on the Court don't have all that much in common"
with each other.
In the June 28 decision Rasul v. Bush, the four Republican-appointed
moderates, led by Stevens, were joined by Clinton appointees
Ruth Bader Ginsburg and Stephen Breyer in ruling 6-3 that
U.S. courts should have jurisdiction to consider challenges
by foreign nationals detained by the United States at Guantanamo
Bay, Cuba. On the same day, in Hamdi v. Rumsfeld, Thomas
was the only justice who fully embraced the Bush administration's
arguments that the detention of enemy combatants was part
of the president's war powers and should not be restricted
by the Court.
But these high-profile votes should not obscure trends from
2004 that show the Court's conservatism in other areas, says
Duke Law School professor Erwin Chemerinsky. "Last year,
the police won six of seven Fourth Amendment cases,"
Chemerinsky notes. "Overall, there is no doubt that the
Rehnquist Court is conservative."
Chemerinsky also believes, however, that the impact of Republican
domination of the other branches won't be felt on the Court
until the next vacancy after Rehnquist, or the one after that.
"If President [George W.] Bush can replace either Justice
Stevens or Justice O'Connor, or both, in the next four years,
the Republicans likely will see their agenda come to fruition."
For now, however, the Court is likely to remain an institution
that above all reserves its right to have the final word,
no matter which political party dominates the White House
or Congress.
"Everyone is a judicial activist," Tushnet says
of the current justices in his new book. "The Rehnquist
Court has asserted, more strongly than the Warren Court, a
primary role in enforcing the legal boundaries Congress has
to respect."
If that is the case, then will the Court anytime soon reflect
second-term Bush priorities or sensibilities?
THE FIRST TO LEAVE
The general expectation is that the ailing 80-year-old chief
justice will be the first to leave. His departure may not
bring much doctrinal change, given that President Bush is
likely to replace him with a similarly minded justice. "It
will not make a difference," says lawyer Bruce Fein,
who helped screen judicial nominees in the Reagan Justice
Department.
Liberal leaders who are gearing up for battle fervently disagree.
"It is, in fact, possible to move the Court further to
the right while replacing Rehnquist," says Ralph Neas,
president of People for the American Way. He points to votes
in which Scalia and Thomas -- Bush's stated models for future
nominations -- voted even more conservatively than Rehnquist.
Nan Aron, president of the liberal Alliance for Justice,
also asserts that the life tenure of justices makes the impact
of any new nominees momentous -- especially for chief justice.
"This is not just for the moment," she said at a
National Press Club debate on Dec. 16.
But the realities of Senate politics -- including threatened
filibusters by Democrats -- may dilute the impact of a Rehnquist
replacement by compelling Bush to pick a more moderate candidate
either to replace Rehnquist, or to replace whichever current
justice might be elevated to his seat. Justices Scalia, Thomas
and O'Connor have been mentioned as possible Rehnquist replacements.
"If Rehnquist is the first to leave, the Supreme Court
is almost certain to become more moderate, because the current
Senate would not confirm a Rehnquistlike nominee. There will
be no more stealth nominees that get past the Senate,"
says Florida International University College of Law professor
Thomas Baker.
Bush opponents and supporters alike expect him to seek a
"no surprises" nominee who will hew to a conservative
line more closely than some of its past Republican nominees,
such as Souter. But based on his Cabinet appointments and
others, Bush may also be swayed by personal, intangible factors
including personal rapport, making his nominees as unpredictable
as others'.
"Republicans can appoint Republicans, but that is no
guarantee that things will turn out as expected," says
Garrow. "This is the White House that gave us Bernie
Kerik for Homeland Security." The nomination of Kerik,
former New York City police commissioner, was scuttled Dec.
10 after revelations about Kerik's private and professional
life.
From the perspective of Court doctrine, examining where federalism
stands at the end of 2004 may illustrate that it is as difficult
to track the path of trends as it is to predict how nominees
will perform. Just a year ago or so, federalism was viewed
as one of the Rehnquist Court's strongest legacies. But now
it may be unraveling -- or turning upside down.
By an unchanging 5-4 majority, the Court has trimmed back
congressional power in relation to states. But in Tennessee
v. Lane earlier this year, the Court said the federal
Americans with Disabilities Act could be enforced against
states to ensure access for the disabled to state courtrooms.
And in Ashcroft v. Raich, a case argued Nov. 29, the
Court appears poised to give federal law enforcement the upper
hand in a dispute over California's medical marijuana initiative.
The states' rights argument did not seem to take hold with
the Court in this instance.
Mindful of state initiatives including medical marijuana,
some liberal groups are even embracing federalism now -- especially
in light of electoral defeats at the federal level. If conservatives
rule the White House and the Congress, the thinking goes,
then states may be the only venues where they have a chance
of success.
This contrasts sharply with the traditional view of federalism
as a "states' rights" notion tainted by historic
state resistance to racial integration. "Until recently,
liberals haven't used the term at all. It was viewed as a
bad thing," says Douglas Kendall of Community Rights
Counsel, which usually represents state and local governments.
In a new book, "Redefining Federalism," Kendall
notes that in some cases -- notably in the area of laws barring
violence against women -- the Supreme Court has given states
power they don't really want. He calls for a more-nuanced,
"less political" allocation of power between state
and federal governments.
One sign of the changed landscape on federalism came in this
optimistic statement from Tim McFeeley, executive director
of the Center for Policy Alternatives, which advocates for
progressive state policies. Pointing to 2004 initiatives on
boosting the minimum wage in Florida and Nevada and on fostering
renewable energy in Colorado, McFeeley said, "For progressives,
hope is in the states."
So much for Rehnquist's conservative legacy of elevating
state power.
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