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Washington�No individual or institution escapes change in a lifetime. After 11 remarkably unaltered years together, the Rehnquist Court has entered its own season of change. The announced retirement of Justice Sandra Day O’Connor will break up one of the longest running shows in Supreme Court history. That event alone would be sufficient to shake up the dynamics on this most collegial bench. But O’Connor, of course, has held the court’s center, not only casting the decisive vote in many of the court’s closest cases, but crafting standards and tests that cross a wide swath of law, from affirmative action to religion to habeas corpus to voting rights. And given the ages of some of the remaining justices, and the illness of Chief Justice William H. Rehnquist, additional changes on the bench are more likely than not in the near future. The long-term implications for the court are hard to predict, said veteran Supreme Court litigator Paul M. Smith of the Washington office of Chicago’s Jenner & Block, but, he added, “A very articulate person who gets along with the other justices could have enormous influence in two or three years on this court.” That person, some court watchers say, could very well be Judge John Roberts of the U.S. Circuit Court for the District of Columbia, who was nominated last month for O’Connor’s position. A former Rehnquist clerk and deputy solicitor general, Roberts was considered a brilliant advocate in public and private practice, as well as a personable colleague. There was evidence of change in other areas as well, some not particularly nuanced. A 5-4 high court, revisiting the constitutionality of the death penalty for juveniles, changed its mind and struck down the ultimate punishment for those who committed murder when they were below age 18. The Rehnquist Court’s federalism revolution, imposing limits on Congress’ lawmaking power under the commerce clause, stalled in a case involving the medical use of marijuana. The ruling, which featured the defection of two stalwart federalism justices, left some scholars declaring that the revolution had sputtered and died, but others predicting it would go forward, as this case was only about drugs. And the dominant conservative voting block of Rehnquist, O’Connor and justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas bowed to the superior coalition-building powers of the court’s oldest member, Justice John Paul Stevens, in almost all of the major, most closely divided decisions.
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