Missing: A Media Focus on the Supreme Court

The big media themes about the 2004 presidential campaign have reveled in vague rhetoric and flimsy controversies. But little attention has focused on a matter of profound importance. Whoever wins the race for the White House will be in a position to slant the direction of the U.S. Supreme Court for decades to come. 

Justices on the top court tend to stick around for a long time. Seven of the current nine were there a dozen years ago. William Rehn- quist, who was elevated to chief justice by President Reagan, originally got to the Supreme Court when President Nixon appointed him a third of a century ago. The last four justices to retire had been on the high court for an average of 28 years. 

Vacancies are very likely during the next presidential term. Rehn- quist, 79, is expected to step down. So is Sandra Day O’Connor, 74, a swing vote on abortion and other issues that divide the court in close votes. Also apt to retire soon is 84-year-old John Paul Stevens, who usually votes with the more liberal justices. “The names of possible Bush or Kerry appointees already are circulating in legal circles,” the Pittsburgh Post-Gazette reported in August, “and there is virtually no overlap between the lists.” 

There should be no doubt about the kind of Supreme Court nominee that President Bush would want. “In general what he’s going to look for is the most conservative Court of Appeals judge out there who is young,” says David M. O’Brien, a professor of government who has written a book about the Supreme Court. “Those are the top two priorities.” 

Bush has made clear his intention to select replacements akin to hard-right Justices Antonin Scalia and Clarence Thomas. Writing in the Washington Times on September 14, conservative attorney Bruce Fein predicts, “The winner of the impending presidential sweepstakes will likely appoint from one to three new justices.” He foresees that if Bush wins and the seats held by O’Connor and Stevens become vacant, “constitutional decrees in pivotal areas concerning presidential war powers, church-state relations, freedom of speech, the death penalty, the powers of the police and prosecutors, racial, ethnic and gender discrimination, and private property will display a markedly more conservative hue.” 

Some political agendas benefit from the claim that the Supreme Court’s 1973 abortion-rights decision, Roe v. Wade, is not in jeopardy. But as Michael Dorf, a law professor at Columbia University, wrote this summer, “Three justices—Rehnquist, Antonin Scalia, and Clarence Thomas—remain committed to overturning Roe. Meanwhile, two of the Court’s three oldest members—justices Stevens and O’Connor—are part of the six-justice majority for recognizing a constitutional right to abortion. Should President Bush have the opportunity to name anti-Roe successors to these two justices—or to any two or more of the six justices who oppose overturning Roe—there is little reason to doubt that he would seize it. The result would be a Supreme Court majority for eliminating the constitutional right to abortion.” 

Though Bush and Kerry are inclined to understate the importance of potential new Supreme Court picks as they try to attract swing voters, Professor Dorf is unequivocal: “A Bush victory would greatly increase the likelihood that Congress and the state legislatures will be able to ban most abortions at some point in the next four years. In contrast, a Kerry victory would almost surely preserve the status quo of legal abortion prior to the third trimester of pregnancy.”