2 vacancies may greatly alter court

Transition in the Supreme Court

September 05, 2005|By Jonathan D. Rockoff | Jonathan D. Rockoff,SUN NATIONAL STAFF

The death of Chief Justice William H. Rehnquist is expected to have a profound impact on the administration and decision making of the Supreme Court, possibly steering it in more conservative directions on hot-button issues such as reproductive rights, church-state relations and the war on terrorism.

Court watchers say the effect might be all the greater because the court, after an unusually long time - 11 years - without a change in its roster, will have two new justices.

"Anytime you change a justice at all you change the court because of the interaction among them. But having the opportunity to change two justices is extraordinary," said Pamela S. Karlan, a Stanford University law professor who clerked for Justice Harry A. Blackmun from 1985 to 1986.

A Republican, Rehnquist spent his 19 years in charge of the court pushing it in a conservative direction. Most notably, he persuaded majorities to give states broader powers at the expense of Congress.

No matter whom President Bush nominates to replace the late chief justice, there is little doubt that the nine-member court will continue its conservative course.

"Having another vacancy will really consolidate a much more solid conservative majority," said Richard Stengel, president and chief executive of the National Constitution Center, a nonpartisan think tank and educational group in Philadelphia. "Instead of 5-to-4 votes, there will be more 6-to-3 votes."

Court watchers don't expect that a more conservative court will overturn precedent on the basic right to abortion and on affirmative action, but predict that it will move the law on less-settled issues.

The court will have several opportunities to show its stripes in the next term, which begins Oct. 3.

On the docket is the constitutionality of Oregon's assisted suicide law and of a New Hampshire law requiring girls to tell their parents before an abortion, even in a medical emergency. The justices will also consider a New Mexico case on using hallucinogenic tea in religious ceremonies, raising church-state issues.

Douglas W. Kmiec, a former Justice Department official under Presidents Ronald Reagan and George H.W. Bush, said Rehnquist's death might elevate the influence of moderate justices in the short term.

Until the chief justice is replaced, Kmiec said, the liberal justices might vie with conservatives for the crucial vote of Justice Anthony M. Kennedy, a Reagan appointee with a case-by-case approach. "Justice Kennedy becomes the sought-after vote," said Kmiec, a law professor at Pepperdine University.

In the long term, a conservative new chief could shift the court solidly rightward regarding the constitutionality of what opponents call "partial-birth abortion," the rights of enemy combatants detained in the war on terrorism and unknown issues arising from advances in biotechnology.

"We could see significant changes," said Carl W. Tobias, a constitutional law professor at the University of Richmond.

Scope of influence

The chief justice's influence extends beyond a single vote. The chief stipulates which justices draft the majority or minority opinions. The chief presides over internal deliberations on cases. And the chief justice's clerks brief other justices on the merits of possible cases.

In addition, the chief justice oversees the administration of the federal courts and lobbies Congress for funding. Now, observers say, the next chief might play a key role advising lawmakers redrawing the guidelines for criminal sentences.

Stevens fills in

Justice John Paul Stevens, the associate justice with the most seniority on the court, will preside until a new chief justice is appointed.

Stevens assumed many of the chief's duties during the last term when Rehnquist was out.

And observers expect the court to continue its smooth functioning. Should there be a 4-4 split, the court would affirm the lower court's decision without setting precedent. It could also hold a case and have it argued before a full complement of nine members.

"There's really no strong, settled practice about what to do in circumstances like this," said Mark V. Tushnet, a law professor at Georgetown University.

Still, the court has operated without two justices before. In 1971, Justices Hugo L. Black and John Marshall Harlan retired within a week of each other for health reasons. They were not replaced until Lewis F. Powell Jr. and Rehnquist joined the next year.

During the interim, the court continued to consider most cases, but decided to delay deciding a controversial one, the landmark Roe v. Wade, until it had a full complement, said David A. Yalof, a University of Connecticut professor who studies the history of Supreme Court appointments.

Yalof said the court might pursue a similar tack until Rehnquist's replacement is named.

"It's not as great a deal for the noncontroversial cases whether they're decided 7-to-0 or 9-to-0. But on the most contentious cases - partial-birth abortion, for example - it could make a difference," he said.

Sun staff writer Jon Morgan contributed to this article.

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