Without a doubt, the resignation of David Souter from the Supreme Court will be analyzed by conservatives with trepidation. However, the direness of the situation is not as bad as many would think. Looking at the conservatives on the Court, there is Chief Justice Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito. Roberts was appointed by Bush. Although justices are appointed for life, the average retirement age is 84 which would give Roberts 33 more years as Chief Justice. His primary project upon assuming the bench was to forge greater consensus and get away from the 5-4 decisions that defined the end of the Rehnquist court. In the 2007-08 term, of the 66 cases decided, only 12.6% were 5-4 decisions whereas 40.9% of the cases decided were by an 8-1 or 9-0 vote. Not bad for building consensus. Of course, anything can happen in the future, but lets assume the best for Roberts and he will be there for a while.
Antonin Scalia is most certainly a conservative appointed by Reagan and is 72. Scalia is also very stubborn and although it is rumored that he has contemplated retirement in the past, he isn’t going anywhere as long as Obama or a Democrat occupies the White House. He is unabashedly anti-Roe v. Wade and has argued that it is bad law and needs to be overturned. So with Scalia, sit back and get ready for some pointedly biting and sarcastic decisions. Clarence Thomas is 60. Once considered to be the lackey of Scalia, most observers believe now it is the other way around. If nothing else, Thomas may actually be to the right of Scalia. In those 8-1 decisions, he is usually the “1” dissenting from a staunch conservative viewpoint. Additionally, Thomas has an axe to grind with the liberals over his nomination hearing and the Anita Hill affair. Incidentally, Joe Biden was one of the protagonists in that sorry display of partisanship. Finally, Sam Alito is only 58 and not going anywhere anytime soon! Actually, Alito is more of a stealth justice who has not really hit his stride just yet. However, conservatives should be hopeful as he has sided with them on the more conroversial issues decided thus far- gun control, capital punishment, and detainee rights. Hence, there are clearly four conservative justices firmly planted on the Supreme Court and going nowhere soon, unless unforeseen death or illness happen.
On the other side is John Paul Stevens who, at 88, is perhaps the next most likely candidate to go. However, many observers of the Court marvel at his health and vigor. Although appointed by Ford, most would expect him to be on the conservative side and in certain instances he does vote that way. But, in the big issues like abortion, he has consistently sided with the liberals. Stevens was a big friend of Harry Blackmun, who authored Roe v. Wade, and he considers himself the defender and keeper of Blackmun’s court legacy. It was rumored that he would have resigned in 2005 had John Kerry defeated Bush, but stayed on the bench to maintain a balance. I fully expect him to be the next retirement now that Obama occupies the White House. Ginsberg is 75 and also likely to resign soon given her recent bout with cancer and other health problems. Although at times she has sought common ground with her conservative counterparts, she is still considered the lost liberal member of the court. Stephen Breyer, a Clinton appointee, is 70 who has forged an alliance with Ginsberg over the years and they generally back one another up. He is sort of like what Thomas is to Scalia with regards to Ginsberg. Again, some have mentioned that he has a desire to retire and move on and the chances are higher now that Obama is President. But, if Stevens and Ginsberg announce their retirements, don’t expect Breyer to leave just yet. Then there is Souter. To H.W.’s credit, he was not the first Republican president to bamboozled by a nominee- Eisenhower appointed William Brennan. Had McCain won the election, rest assured Souter would have never considered retirement as he has become one of the most reliable liberal voices on the court.
At the very least, the court will be ideologically split and the one resignation conservatives need to fear is that of Anthony Kennedy. Appointed by Reagan, Kennedy is getting up there at 72 years of age. With the subject of abortion, he has been all over the spectrum with one constant: since 1989, he has consistently insinuated in opinions and openly stated in speeches that he would never vote to overturn Roe v. Wade. In 1990, he voted to uphold parental notification laws, then in 1992, he signed onto O’Connor’s rationale that reaffirmed the basic holding in Roe, but adopted the “undue burden standard” when it came to abortion laws. In 2000, the Nebraska partial-birth abortion law was struck down and he shifted and joined the dissent in that case. In essence, Kennedy is the crucial fifth vote in these cases. With abortion, however, there are two underlying principles: (1) a rigid adherence to the basic privacy rights enunciated in Roe v. Wade, and (2) a lenient interpretation of the undue burden standard in subsequent cases.
Even though the liberals and feminists in particular need Kennedy’s crucial fifth vote to advance their agenda, from a practical standpoint and analysis of decisions in other areas, he is really not a bed partner of liberals in general. Additionally, Kennedy seems to relish his role as the power broker in these close cases, especially the abortion ones. In other cases, like gay rights, free speech and flag burning, his decisions are downright liberal. In fact, his propensity to cite international law in the rationale for his decisions has led to some caustic comments from Scalia in the past and really caused disdain from conservatives (and rightfully so).
Both sides need to chill out and relax. On the liberal side, they need to hold off on the celebrations because replacing one liberal with another liberal does not shift the balance on the court, especially with regards to abortion. Consternation on the part of conservatives needs to be tempered by the same realities. In fact, it is wholly possible that too liberal an appointment by Obama may nudge Kennedy more closely to the conservatives on the Court. Before the election, I surmised that if Obama won, he would have three vacancies to fill- Stevens, Ginsberg and Souter- in that order. So I got the order wrong. Conservatives need only fear two things. First, an unforeseen decline in health or the death of any of the four conservatives on the Court. Second, the resignation of Anthony Kennedy as his replacement would most definitely immediately shift the balance on the Supreme Court. If nothing else, this turn of events allows Barack Obama to demonstrate his allegedly moderate projection and credentials. Since he is, at heart, hardly a moderate, I highly doubt it and expect him to appoint a left-leaning black, Hispanic or woman, or any combination thereof. And like Alito and Roberts, expect them to be youngish (in their 50’s) so that they will be around for awhile. In the interim, conservatives need to chill out. But, it certainly underscores the importance of the possibilities should there be a second Obama term and it would be at that point that conservatives should increase their worry levels