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SUPREME COURT

O'Connor's Replacement Is Likely to Be a Swinger

Some assume Bush will nominate a justice who consistently votes with conservatives.

July 03, 2005|Orin S. Kerr | Orin S. Kerr is an associate professor at George Washington University Law School.

Some court observers are predicting that the Supreme Court will be radically different without Justice Sandra Day O'Connor. I'm not so sure.

Every year, the court decides a handful of closely divided cases with important ramifications for American life. In many of these cases, the court has divided into three camps.

The first includes the four liberal justices: John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. The second consists of the three conservatives: Antonin Scalia, Clarence Thomas and William H. Rehnquist. The last camp covers the two moderate swing votes: O'Connor and Anthony M. Kennedy.

O'Connor's retirement removes a swing vote. But that may not have a dramatic effect on the outcomes of the court's biggest cases.

To see why, assume that O'Connor is replaced by a strong conservative, such as Judge J. Michael Luttig of the 4th Circuit Court of Appeals. The balance on the court would change, but only somewhat. Kennedy (for whom I clerked) would remain as a key swing vote.

Kennedy often votes with the more liberal justices to form a liberal majority in major cases. He has voted to uphold Roe vs. Wade, and he wrote the opinions that struck down sodomy laws and invalidated the death penalty for juveniles. All these decisions would remain intact.

This scenario assumes President Bush will nominate -- and the Senate will confirm -- a justice who consistently votes with the conservatives. That might not happen. Bush might nominate a moderate, or the Senate might not be able to confirm a conservative. In that case, O'Connor's replacement may end up voting in a way similar to O'Connor. Again, little would change.

The possible retirement of Rehnquist raises another important variable. The chief justice has been treated for thyroid cancer, and many expect him to announce his retirement soon.

Rehnquist's departure would drop the number of conservatives on the court from three to two. Bush would nominate two instead of one, but the new justices, taken together, may end up mirroring the would-be combined votes of Rehnquist and O'Connor.

Finally, the legal principle of stare decisis will limit the changes. By institutional tradition, the Supreme Court overturns prior decisions only rarely. The justices routinely decline to overrule old cases even if they would have reached a different result the first time.

In other words, once a case is decided, it tends to stick around. This practice helps explain why most of the major decisions of the liberal Warren Court from the 1960s remain on the books today. It also suggests that most of the decisions shaped by O'Connor will remain the law in the future.

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