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The Supreme Court — and who should get to name its justices — is about to make its quadrennial cameo appearance as a presidential campaign issue. But this time around, a rarely heard question is being asked: Does the outcome of the election really matter all that much for the Court? Advocates on both sides insist it does, energizing their base with warnings that the Court is “one vote away” from adopting some heinous new doctrine or doing away with a cherished old one. But some are questioning that premise — or at least its urgency — in ways that complicate the importance of the Supreme Court as an election issue. A combination of factors — the seeming moderation of the current Court, the prospect of Senate confirmation gridlock, and the almost mythical power of stare decisis and tradition on the Court — have led some to wonder whether the next new justices, no matter who appoints them, will have the ability or desire to change the direction of the Court significantly. Liberal Georgetown University Law Center professor Mark Tushnet has even offered the heretical and hotly contested view that the outcome Nov. 2 will be a wash for the Court. “The politics in the Senate make it likely that a newly appointed Democratic Supreme Court justice would look a lot like a newly appointed Republican one,” Tushnet wrote in the current issue of Legal Affairs magazine. Florida International University College of Law professor Thomas Baker, a longtime Court-watcher, agrees and thinks the increasing moderation of the current Court muddies the question of how much change a new justice or two would actually bring. “There’s almost a hydraulic pressure once they get on the Court to move to the left of where they start,” he says, pointing to votes by Justices Sandra Day O’Connor and Anthony Kennedy and even by Chief Justice William Rehnquist that they might not have cast a few years ago. To Elliot Mincberg, legal director of the liberal group People for the American Way, these factors don’t detract from the importance of the Supreme Court as an issue. “It may be hard to run against this Court,” he acknowledges, “but a lot of those moderate votes were awful close. It takes simple math to figure that if you get another [Antonin] Scalia or [Clarence] Thomas on there, it tips the balance. A lot depends on who leaves.” At the Supreme Court, the math is never simple, but it is true that a Rehnquist departure will mean more if John Kerry replaces him than if George W. Bush does. The reverse is true if the more liberal Justice John Paul Stevens departs. And if swing vote O’Connor leaves, it means a lot no matter who replaces her. Mincberg’s group has issued a report, “Courting Disaster,” detailing cases that could be reversed by Bush justices. On one aspect of the debate, there is general agreement: After 10 years of stability — a modern-day record — it seems almost impossible that the next four years will pass without a high court departure. Rehnquist, who turns 80 on Oct. 1, and Justice John Paul Stevens, 84, have already hired their law clerks for the 2005-06 term, though that is not a reliable indicator of their plans. Neither they nor any other justice appears to have pressing health concerns. But change seems inevitable. So the winner on Nov. 2 will likely have one or more Supreme Court appointments to make in the next four years. But what will that mean for Court doctrine? AFFIRMATIVE ACTION Last year in Grutter v. Bollinger, the Court upheld a University of Michigan affirmative action program by a 5-4 vote, with Justice O’Connor casting the deciding vote and writing the opinion. That slim margin guaranteed that affirmative action would be on Democrats’ list of endangered doctrines. Indeed, longtime abortion rights advocate Kate Michelman, who is heading the Democratic National Committee’s new Campaign to Save the Court to highlight the Court as an election issue, wrote in a position paper last week that “the conservative justices need just one more vote to eliminate affirmative action.” But it’s not that simple, says John Payton, a partner at Wilmer Cutler Pickering Hale and Dorr who is second to none in advocating for affirmative action. Payton argued one of the 2003 Michigan cases at the high court. For 25 years before the Court ruled in Grutter, Payton notes, the high court “left affirmative action alone,” at least in the education context, relying on Justice Lewis Powell Jr.’s concurrence in the 1978 case Regents of the University of California v. Bakke that was “written for the ages” to give guidance to universities. “I think the way that O’Connor wrote in the Michigan case was in the same spirit as Bakke,” says Payton. “It was intended to give universities guidance on which they can rely for a long time.” The heft and reach of O’Connor’s opinion leads Payton to conclude that even if O’Connor departs and is replaced by a Bush nominee, “I would be surprised if the Court would go out of its way anytime soon” to overturn Grutter and consign affirmative action to oblivion. “You have to see who the personalities are. But I would be surprised.” Payton is quick to add that “it really matters” who is elected. “We can’t anticipate what the next issue will be” in matters of race, he says. “There are issues we haven’t thought about, issues we will guess wrong on.” An example of an issue making its way to the Court: litigation over race-conscious programs in K-12 education which, Payton thinks, could produce different votes. ABORTION The right to an abortion, like affirmative action, seems safe for now, protected by the troika of Justices O’Connor, David Souter, and Anthony Kennedy, who affirmed Roe v. Wade in the 1992 case Planned Parenthood v. Casey. It was a 5-4 decision, too, with Stevens and the late Harry Blackmun joining the three in the majority. But with abortion rights supporters Ruth Bader Ginsburg and Stephen Breyer on the Court now, it would probably take two or more committed abortion foes appointed by Bush — and replacing, say, O’Connor and Stevens — to overturn Roe. Like the affirmative action opinion, the Casey decision seems to have been written to ward off attack, with the O’Connor-Souter-Kennedy opinion waxing eloquent about stare decisis, the institutional tug that leads justices to uphold — or at least not quickly overrule — precedent. “An entire generation has come of age” relying on Roe v. Wade, they wrote. But justices disagree over the importance of stare decisis, and new nominees are likely to be grilled on the subject. In the new biography Judging Thomas, author Ken Foskett quotes Justice Scalia as telling him that Justice Thomas “does not believe in stare decisis, period. If a constitutional line of authority is wrong, he would say let’s get it right. I wouldn’t do that.” Though he was apparently trying to distance himself from Thomas by the remark, Scalia also has mixed views on stare decisis, especially on constitutional issues. Since it is so hard to amend the Constitution — unlike federal laws, which Congress can change with relative ease — Scalia has said that if the Court has ruled incorrectly in constitutional cases, only the Court can fix the mistake, and it should not be reluctant to do so. In spite of the potency of the Casey decision, abortion rights advocates see peril if Bush nominates even a single justice. The so-called partial birth abortion issue is likely to return to the Court, which struck down a Nebraska ban on the procedure by a 5-4 vote in the 2000 Stenberg v. Carhart decision. Kennedy, a Roe supporter, nonetheless switched sides and was one of the dissenters in Stenberg, and if a second-term Bush got to replace one of the majority justices — O’Connor, say — that precedent could be in danger. Bush’s nominees would be “much too smart to vote against Roe v. Wade outright,” says American University law professor Herman Schwartz, author of Right Wing Justice, a new critique of Republican judicial nominees. “But they’ll cut it back. Bush will come up with people who have a smooth surface, but are very, very conservative.” GAY RIGHTS Gay rights is another issue on which the impact of a new justice would be unclear. The Lawrence v. Texas ruling of 2003 was a 6-3 decision, with only the staunchest conservatives — Rehnquist, Scalia, and Thomas — agreeing that criminal anti-sodomy laws should be upheld. With Kennedy and O’Connor powerfully siding with the majority to strike the laws down, Lawrence seems immune from quick reversal — especially since Lawrence itself reversed a relatively recent precedent, the 1986 Bowers v. Hardwick decision. “ Lawrence could be reconsidered if you get a Court that really wants to reconsider all the Court’s privacy opinions, including Griswold v. Connecticut,” says Jenner & Block partner Paul Smith, referring to the 1965 case in which the Court ruled unconstitutional state laws that made the use of birth control illegal for married couples. But it would take four or five new and ideological conservative justices before that would happen, estimates Smith, who argued and won Lawrence. But on the next wave of gay rights litigation — gay adoptions, for example, or federal recognition of Massachusetts’ same-sex marriages — Smith thinks the justices may divide differently, making the views of even one or two new justices important. SCHOOL VOUCHERS On the other side of the fence, one 5-4 decision that has Bush supporters worrying about a John Kerry win relates to school voucher programs. In the 2002 decision Zelman v. Simmons-Harris, the Court, with O’Connor in the majority, said voucher programs could benefit students attending parochial schools without violating the First Amendment. Kerry has been critical of such programs, and if he got to replace O’Connor, the Court could shift, though in this case, too, stare decisis would be a factor. “You can never predict the importance of precedent,” says Clint Bolick, president of the Alliance for School Choice. “But the appointment of a single justice could swing the balance. The boundaries of school choice, for better or worse, are set by the courts.” Bolick, a longtime supporter of conservative court nominees, sees the future of the Court as “the single most galvanizing issue for movement conservatives. This election could be a twofer — we win the White House and the Supreme Court.” FEDERALISM Bolick also points to federalism cases, most of them decided in favor of states by 5-4 votes with justices deeply committed on both sides, as another area of the law that the election could affect. The Rehnquist Court’s federalism juggernaut has already slowed somewhat, but if Kerry got to replace Rehnquist, say, momentum could run the other way — with consequences for issues ranging from disability rights to the environment. Georgetown University Law Center professor Richard Lazarus, an expert on environmental cases, agrees that in areas like federalism and regulatory takings that affect environmental law, the Court is closely divided. The change of a single justice could have an impact, says Lazarus. One example the Court may face even before a vacancy occurs, according to Lazarus: the constitutionality of the Endangered Species Act. The law has been challenged as an intrusion on states’ rights, and if Bush gets to replace O’Connor or Stevens, Lazarus thinks the law could be in jeopardy. One complication for that calculus: So far, the Bush administration has defended the law in court, says Lazarus. CAPITAL PUNISHMENT And then there is one major issue the high court regularly deals with on which the presidential candidates differ sharply, but it won’t make much difference for the Court. Bush favors capital punishment and says that when he was governor of Texas, he was confident that everyone executed by the state was guilty. Kerry opposes the death penalty, except for some terrorism-related crimes. But even if Kerry wins, it would take a long time to change the Court’s pro-death-penalty course. Since the departures of Justices William Brennan Jr., Thurgood Marshall, and Blackmun, no current justice opposes capital punishment per se. Instead Diann Rust-Tierney, the new director of the National Coalition to Abolish the Death Penalty, will be looking for fair-minded new justices, no matter who is elected. Many of the current justices have become increasingly attuned to issues of due process in death cases, Rust-Tierney says. “The system is so disturbing and gets it wrong so often, that when they see how the sausage is made, they are very troubled.”

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