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The Impact of Justice O'Connor's Retirement
may be considerably less than most people think. Or so I argue in the Opinion section of today's Los Angeles Times:
  Some court observers are predicting that the Supreme Court will be radically different without Justice Sandra Day O'Connor. I'm not so sure.
  Every year, the court decides a handful of closely divided cases with important ramifications for American life. In many of these cases, the court has divided into three camps.
  The first includes the four liberal justices: John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. The second consists of the three conservatives: Antonin Scalia, Clarence Thomas and William H. Rehnquist. The last camp covers the two moderate swing votes: O'Connor and Anthony M. Kennedy.
  O'Connor's retirement removes a swing vote. But that may not have a dramatic effect on the outcomes of the court's biggest cases.
  I offer four reasons for this conclusion: Kennedy remains a key swing vote; O'Connor's replacement may not be very different from O'Connor; Rehnquist may resign, taking away a solid conservative vote that may roughly cancel out the impact of O'Connor's lost moderate vote; and respect for precedent will keep the Court from overruling most of the cases for which O'Connor provided the swing vote in the past.

  Of course, whether this is cause for rejoicing or dismay is in the eye of the beholder. But at least in the short term, I do think the stakes for the battle to replace O'Connor are somewhat lower than many people assume. (The long term picture is different and more complicated due to the cumulative effect of multiple resignations and replacements over time.)

  Oh, and I didn't write or have anything to do with the title for the piece. Titles for this sort of thing are written by the editors, not the authors.
Proud Generation Y Slacker:
I'm not so sure, if O'Connor and Rehnquist are both replaced by solid conservatives. Kennedy will then be righteously channeling so much legal power that he risks physical apotheosis, shooting to the heavens in a streak of brilliant blue flame, there to join Odin and Jupiter as one with the supreme lawgivers.
7.3.2005 12:57pm
cld:
That title is truly horrible.
7.3.2005 1:30pm
david blue (mail) (www):
Hmm. In at least two "hot button" areas, it seems obvious to me that O'Connor's departure could change things dramatically. Kennedy, while of course a co-author of the Casey joint opinion, dissented in Stenberg, suggesting that his view of an "undue burden" on abortion restrictions is quite different from O'Connor's. And on affirmative action, Kennedy isn't that far from Scalia et al. More here.

And yeah, sorry about the title. Occupational hazard.
7.3.2005 1:46pm
Chris Brody:
This just makes no sense. Why in the WORLD, with this president and this Senate, would O'Connor's replacement not be more conservative than she? And why in the world would Rehnquist's replacement not be equally as conservative as he? All you offer is that Bush "might nominate a moderate" to replace SDO'C. Why would he do that? Has he shown the slightest interest in moderation in any facet of his politics? Do you honestly think the president and most of the Republicans in the Senate aren't spoiling for the nuclear option showdown that was averted recently? Come on, Orin, you're smarter than this. When these two justices are gone, the court will be, on balance, more conservative than it is now. Let's not be naive.
7.3.2005 1:57pm
OrinKerr:
Chris,

Here's my thinking. First, one of the names on the shortlist to replace Justice O'Connor is Attorney General Alberto Gonzales. The common wisdom is that Gonzales would be a moderate in the O'Connor mold. (This may be right or wrong, of course, but I think it's fair to say that it's the common wisdom.)

Second, Republican presidents have nominated a number of Justices in the past 20 years who were believed to be conservatives at the time of their nomination but who ended up voting as moderates, such as Kennedy, O'Connor, and Souter.

Given both of these facts, I think it's fair to say that Bush's nominee to replace O'Connor "might" end up not being someone who reliably votes in the conservative direction, and that the combined SOC/WHR pair "might" replicate their would be votes.

Of course, saying that this "might" happen does not mean it will happen. Given that, I'm not entirely sure that your feeling that it won't happen is inconsistent with my point that it "might." Sorry if you find my analysis naive, but that's the way I see it.
7.3.2005 2:45pm
david blue (mail) (www):
The really interesting question (or one of them, at least) is whether Bush's undoubted penchant for loyalty will trump his desire to reshape the judiciary. I have no doubt that Bush would love to see Gonzales on the Court, and the reasons for that have little to do with ideology and a lot to do with loyalty. I also think, though, that it would be weird to nominate Gonzales so soon after naming him AG (which is also why I think Tom Goldstein is wrong that Priscilla Owen will be the nominee). So he might save Gonzales for the next nomination. Or he might decide that ideology is too important when it comes to the SCOTUS, and never nominate Gonzales at all. We just don't know. My guess? Michael Luttig to replace SOC. We'll see.
7.3.2005 4:05pm
Chris Brody:
Orin, you're right -- it could certainly happen that the Administration nominates someone who accidentally doesn't turn out to be as conservative as they'd been shooting for. I personally very much hope this turns out to be what happens. Since the right wing considers Kennedy et al to have been a huge blunder, I kind of imagine that the Bush Administration will be careful not to let that happen again, which is why I made my prediction that the Court will be more conservative when all is said and done. But uncertainty is built into all human things.

Again, here's hoping you're right about it. Also, I shouldn't have been rude before. Sorry about that.
7.3.2005 5:17pm
Scott Moss (mail) (www):
Good points re the changing jurisprudence of Justice Kennedy and the role of stare decisis. I disagree only as to the characterization of the court's "liberal" and "conservative" camps. I'm not objecting to those terms, just to the implication that Stevens/Souter/Ginsburg/Breyer are nearly as liberal as Rehnquist/Scalia/Thomas are conservative. The latter three are as conservative as the departed Douglas/Brennan/Marshall/Warren chique. Stevens arrived in 1975 as a moderate swing vote, and he's "shifted left" only relative to the rest of the court, which now has no justices who find the death penalty unconstitutional, none who are really liberals on criminal procedure, only two (Stevens anbd Ginsburg) who are even close to as liberal on the Establishment Clause as Douglas et al....

I regularly call the "dissenting four" the "liberal wing" as a shorthand, just as I called O'Connor a "moderate" as a shorthand, but those adjectives are true only in relative terms. O'Connor was a conservative on criminal justice, states' rights, and federal power; she was strictly middle-of-the-road on most other individual rights issues. On the net, that's somewhat right of center.

What's more, the 5th vote always will look like a "moderate swing vote" because the court's ideology affects its case selection. Assuming that Justice O'Connor's replacement is at least as conservative as Justice Kennedy, the court will be granting cert in a lot of "conservative agenda" cases, e.g.: "how much should we cut back XYZ constitutional right?" "how much should we limit federal power?"

I'm sure we'll see Justice Kennedy called a "liberal" in the coming year when he declines to roll back XYZ core constitutional right or refuses to impose a massive limitation on federal legislative power. Those will be accurate characterizations in a relative sense....
7.3.2005 6:48pm
OrinKerr:
Scott,

I thought a lot about the label question.

After giving it some thought, I decided to use the terms to signifify whether the Justices on balance vote in ways that tend to shift the law from its prior position in the direction of the political right, in the direction of the political left, or in an unpredictable mix of ways. The four left-leaning Justices consistently vote to pull the law in a liberal direction in the high-profile cases; the three right-leaning Justices consistently vote to pull the law in a conservative direction. Not always, obviously, but pretty consistently. O'Connor and Kennedy don't really have consistent leanings, I think; they vote in ways that would pull the law to the left or right roughly evenly, or at least in no clear direction. Given that, I think it works to use the lables "liberal," "conservative," and "moderate" as I did in my article.

I agree with you that the terms can and usually are used in a relative sense. I recently read a press release by the People for the American Way, and noted that in their view the current Court has nine conservatives on it and zero liberals. If I recall correctly, Souter was described as a "moderate conservative," O'Connor as a "mainstream conservative," Kennedy as a "conservative," and Rehnquist an "ultra conservative." Scalia and Thomas were explained as being far to the right of "ultra conservative" Rehnquist, but no adjectives were used; apparently PFAW couldn't come up with words extreme enough to express just how conservative Scalia and Thomas are.
7.3.2005 7:15pm