Change on the High Court

By the time readers receive this issue of Commonweal, they may know who President George W. Bush has nominated to replace Justice Sandra Day O’Connor on the U.S. Supreme Court. As we write, there is much fervid speculation about whether the president will choose a nominee who satisfies his right-wing political base, thereby plunging the Senate into months of conflict, or one who might be a consensus builder, thus easing the nation’s divisions. Given the president’s past appointments, few hold to the hope that he will make a gesture of reconciliation. Given a chance to shape the Court for years to come, Bush is expected to nominate someone who is, at the very least, unambiguously opposed to Roe v. Wade and, in the president’s often repeated remarks, a “strict constructionist” when it comes to interpreting-or is not interpreting?-the Constitution.

The rhetorical temperature surrounding the nomination has already spiked, with religious conservatives promising schism and “war” if Bush’s nominee is not known to be “reliable,” and liberals warning of the threat to fundamental liberties posed by those not in the “mainstream” of contemporary jurisprudence. At this moment, the president has done little to show his hand. Two aspects of the public discussion are perhaps worth noting at this early juncture. First, the nomination may seriously exacerbate the up-to-now largely hidden tension between the agendas of the Republican Party’s ideological conservatives and its supporters in the business community. For one, the business community is opposed to what is called the “new federalism,” which, under the guise of states’ rights, seeks a sharp restriction of the federal government’s ability to regulate commerce. National markets and national standards are good for business, and those conservatives clamoring for a devolution of federal power to the states find few allies among corporate interests.

Second, despite the fact that O’Connor emerged as a crucial swing vote in many important cases, her retirement may not dramatically change the direction of the court, especially on issues like abortion. Since six justices currently support Roe, it is likely that the appointment of two or even three new justices would be required before that decision could be overturned. Contrary to the hopes and fears of those on both sides of the political divide (and Commonweal has long opposed Roe), it seems unlikely that any dramatic change in the Court’s jurisprudence will follow immediately from O’Connor’s retirement.

Published in the 2005-07-15 issue: 
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