It’s been 10 years and two election cycles since the last vacancy on the U.S. Supreme Court, and when classes ended this past April, the high court was as tranquil as it was a decade before. Now, the most resilient bench in Supreme Court history is crumbling, and it’s doing so on President Bush’s watch. GOP activists are billing this week’s U.S. Senate confirmation hearings as the beginning of a sea change, a long-sought departure from the activism-ridden doctrines of the Warren Court — a body of jurisprudence conservative scholars have been trying to dismantle for more than three decades.

Sam Singer

For conservatives, it’s a perennially failing effort, and in this light the last few decades of Republican appointments are telling. There were those convinced it would be Nixon who would remodel the court. He filled four vacancies, but the “Nixon Court” never took the dramatic turn rightward that was anticipated, instead carrying a relatively moderate posture until it was shuffled in the `80s. The Reagan-Bush era proved just as unprofitable. Between the two presidents, there were five more appointments; that’s 12 years of conservative stacking, the result being the bench in its most recent — and for many conservatives — unsatisfactory form. If we’ve learned anything, it’s that the court is more insulated than it’s been given credit for, a president’s ability to steer its course questionable.

Then there’s today’s landscape. The president has two vacancies and as many years to fill them. He has an empty chief justice seat and in John Roberts an ironclad nominee — a foot soldier from the Reagan era with a gold-plated resume and an inscrutable judicial philosophy. To boot, he’s got the most powerful Senate majority in recent history prepared to back his next pick. If a conservative judicial revolution is at hand, there’s no shortage of warning signs.

But look closer. It goes without saying that replacing the late chief justice, William Rehnquist, with John Roberts will be nothing less than an ideological wash, a zero-sum tradeoff unlikely to disturb the court’s philosophical composition. But what of O’Connor? No doubt she’s out of favor in conservative circles, widely perceived as a fence-sitter with dangerous liberal leanings. But these sentiments are more a product of media rhetoric than of any objective understanding of O’Connor’s tenure. Match her public profile with her last 24 years of jurisprudence and the disparity is stark.

A comprehensive, issue-by-issue assessment by the National Journal paints O’Connor in a much different light. Though often the deciding opinion, O’Connor swings right much more frequently than left (and much more predictably than most of her colleagues). She camps with the federalism movement, a school of thought committed to devolving federal authority to the states, and the bulk of her legal writings suggest a penchant for judicial restraint. By any reasonable metric, O’Connor is the most unappreciated conservative on the bench.

The National Journal went a step further, isolating key decisions where O’Connor tipped the court by siding with a liberal majority, cases that would presumably swing the other way with a more reliable conservative on the bench. The few decisions where O’Connor turns coats are all extremely nuanced and, not surprisingly, the very media blockbusters that helped shape her misguiding public persona. She floated left on religious displays this July, siding with the liberals in ordering the removal of a Ten Commandments display in a Kentucky courthouse. But on the same day, she sustained a Texas state appeal to display similar religious monuments on state capitol grounds. The difference, she said, was circumstantial. She’s joined liberals in upholding partial birth abortion bans, but not before leaving open other pathways for states to restrict reproductive freedom. And as a key vote in the Bollinger cases, she at once upheld the University’s right to use race as a factor in admissions decisions and choked off any way to institutionalize it. When O’Connor sides with the left, she does it with caveats.

Compare these with the areas still out of bounds for a 5-4 conservative majority. National Journal research places the economic rights imbedded in the Commerce Clause – categorically, the most expansive and hotly contested area of constitutional law – in untippable territory, most requiring a six-justice majority to unravel. E-Commerce. Healthcare. Privacy. Environmental regulation. The court’s interpretation of the scope of the Commerce Clause, namely the span of Congress’s reach in regulating interstate economic activity, will be the single most important factor in shaping 21st century public policy. On top of that, the National Journal rules out any sweeping changes in criminal procedure — an entire body of federal sentencing guidelines still outside the reach of a 5-4 bench. Tack on civil litigation, equal protection and congressional redistricting, and the true frontiers of the Rehnquist Court become apparent.

Whether or not conservatives can swallow it, these boundaries were carved out, consolidated and safeguarded by the same legal minds sent into bulldoze them. This isn’t the revolution, and a marginally more conservative bloc on the court will do little to shift its direction. If Bush wants a lasting footprint on the federal judiciary, he’s going to need more than two fresh faces.


Singer can be reached at singers@umich.edu.

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