Chief Justice William Rehnquist’s battle with thyroid cancer has opened a national discussion about impending retirements by U.S. Supreme Court justices.

Should the court reshuffle in the next four years, President Bush will have the chance to appoint one or more justices, which could lead to the court’s stance shifting to the right on many controversial issues. Yet legal analysts say it is unclear whether the new court would have a substantial impact on the use of affirmative action in college admissions.

In the summer of 2003, the court ruled on two cases involving the University’s admissions policies and the use of affirmative action. In Grutter v. Bollinger, Barbara Grutter sued the Law School saying that her rights were violated under the equal protection clause of the Fourteenth Amendment. Gratz v. Bollinger targeted the College of Literature, Science and the Arts admissions policies. While the court ruled against the LSA’s awarding of specific points for race, it upheld the Law School’s policy.

Legal experts say there are far too many factors involved to predict what might happen to the University’s policies or other race-conscious programs in the future. To have any change in the affirmative action ruling, a relevant case must first be introduced into the legal system which would seek a reversal of the original decision, or at least be posed in such a way that a reversal would be plausible.

Law Prof. Richard Friedman said he didn’t know of any cases in the court system at the time, but if one does reach the court in the near future, several things could happen.

“If the justice who left was one who voted against the Law School (admissions policies), then one wouldn’t expect any change. For example, Rehnquist is conservative — if another conservative took his place it doesn’t change anything,” said Friedman. “However, if someone who voted in favor of the Law School retires, then there is a different situation.”

“If (the newly appointed justice) is someone who is hostile to affirmative action, then it could be that the court would reverse Grutter, or it could be that a new conservative justice would simply vote in favor of the precedent,” Friedman said.

Law Prof. Richard Friedman said, “It’s only the second time in history that we have seen such a long time without a change on the court. It has been the same nine justices for a long, long time. Sooner or later someone will have to leave.”

All of the justices except Clarence Thomas are older than 65. The three oldest of these judges are Rehnquist, John Paul Stevens and Sandra Day O’Connor.

“People tend to think that the justices plan (their retirements) politically,” Friedman said. During Bush’s first administration, Rehnquist, Stevens and O’Connor were all rumored to be thinking about retirement, yet all three defied speculation and remained in office. Four years later, there are again strong factors encouraging them to retire.

Rehnquist’s failing health and recent treatment for thyroid cancer have kept him from the court for over six weeks. Despite Rehnquist’s hopes of a fast recovery and a speedy return to court, he continues to review cases from home.

“In addition to Rehnquist who is really sick, the justice who will have to be replaced sooner or later is John Paul Stevens. He is the most liberal member of the court, but he is 84-years old. How long can he go?” asked Larry Greene, a political science professor.

Friedman echoed Greene’s observation, saying, “It is not unprecedented to have an 88-year-old justice. Justice Stevens is 84, but will he go another four years? It’s hard to say.”

“We’ve had justices that have survived to their 90s and have remained competent. Others have not: William O. Douglas pretty much lost it in the 1980s when he was in his 90s,” Greene said.

While Bush would appoint a new chief justice if Rehnquist retires, a more important presidential nomination would be of a new associate justice.

“The chief justice doesn’t have much power. He or she is really one among nine equals. The real power is in the hands of the swing voter,” communications studies Prof. Anthony Collings said. “That swing voter is the most powerful justice on the Supreme Court.”

Collings served as a CNN Supreme Court correspondent for nine years and worked with the University during its affirmative action admissions lawsuits in 2003. In Grutter v. Bollinger, the Law School case, the swing vote was Justice Sandra Day O’Connor, Collings said.

O’Connor has had breast cancer and is over 74. “I don’t think that (O’Connor) is really going to resign. I think that she realizes she’s involved in women’s rights and that a more conservative court could seriously constrict Roe v. Wade,” Greene said.

He added that it would be of major significance if she chose to retire in the next four years. “If she is replaced by Bush, this appointment will have major effects in the affirmative action case. I can see how in this area, Bush would pick someone who is not pro-affirmative action to replace her,” he said.

Despite Bush’s socially conservative political stance, it is uncertain who he would appoint to replace justices should they choose to step down.

“There are rumors about (Attorney General nominee Andrew) Gonzales, its hard to know, sometimes presidents surprise people. However it would be someone who would be relatively conservative,” Friedman said.

“We do know that the president has said that the two justices he considers models for Supreme Court justices are Scalia and Thomas – the most conservative justices on the court. You could logically assume that he would want to nominate a very conservative justice,” Collings said.

The President’s choice will likely be affected by politics, as his nominee must be approved by a majority vote in the Senate. “The president will nominate someone and the more the Democrats like (that person), the less problems the president will have getting that person confirmed. Some say that because of this, the president will nominate a moderate conservative instead of a hard-line conservative,” Collings said.

While the Republicans hold a majority in the Senate, the Democrats still have the ability to stop a nominee by filibustering the deliberations. The cessation of a filibuster on the Senate floor requires 60 votes, and with the Republicans holding only 55 Senate seats, the Democrats could use their power to block a very conservative judge.

“If the Democrats want to use their power in the Senate, they could block a justice. Does the president want to have a big fight? Or would he want to put up a more moderate judge? I just don’t know,” Collings said.

Another factor the president will consider when appointing a nominee is age. Should Bush appoint a relatively young conservative, the Court will have that conservative base for many more years. “Bush will appoint a young conservative who will be there 20 to 30 years,” Greene said.

Many liberals are concerned at the prospects of a conservative-heavy Supreme Court. These concerns include the possible reversal of Grutter v. Bollinger.

However, experts say there are far too many factors involved to predict what might happen. To have any change in the affirmative action ruling, first there must be a relevant case introduced into the legal system. That case would have to seek a reversal of the original decision, or at least posed in such a way that a reversal would be plausible. However, Friedman said that he didn’t know of any cases in the court system at the time.

In addition, in order for the court to review the decisions of a lower court, four justices need agree to hear the case. According to Greene, this does not happen very frequently and that of 10,000 cases that are petitioned to the court, the justices only hear 100 of them a year.

However, if a case such as this reached the Supreme Court, there are several things that could happen.

“If the justice who left was one who voted against the law school (admissions policies), then one wouldn’t expect any change. For example, Rehnquist is conservative — if another conservative took his place it doesn’t change anything,” said Friedman. “However, if someone who voted in favor of the law school retires, then there is a different situation.”

“If (the newly appointed justice) is someone who is hostile to affirmative action, then it could be that the court would reverse Grutter, or it could be that a new conservative justice would simply vote in favor of the precedent,” Friedman said.

He went on to say that it is always possible a justice might want to come in and assert their power, becoming the extremely powerful swing vote. “It could well be that a justice comes in and wants to throw out the previous decision,” he said.

What does all this mean for the future of affirmative action? “Maybe not very much. The affirmative action case has already been decided and once a case is decided, the justices normally do not overturn it,” Collings said. As to how soon a case might appear that would have any effect on the Grutter v. Bollinger decision, Friedman said, “It would be a matter of years.”

According to Greene, if just Chief Justice Rehnquist retires during the course of Bush’s second term, a reversal of Grutter is not likely to come soon. “Liberals and moderates lose nothing by Bush replacing Rehnquist, because he is one of the most conservative justices that has served on the court in the last 50 years,” he said.

Collings echoed Greene, saying, “Bottom line – if it is just Rehnquist that retires it might not make any difference. If it is Rehnquist plus a less conservative judge, then it might make a difference. Even if that happens, this new Supreme Court still might not rule against the University’s policies on affirmative action because it is very, very rare that they reopen cases once they’ve decided them,” he said.

 

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