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Republican Court in Name Only?

Legal Times
December 20, 2004
Tony Mauro


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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