The winner of the presidential election of 2004 is almost certain to define the composition and direction of the U.S. Supreme Court for at least the next 20 years. And lest you believe that won't make much difference, reconsider the fact that among the issues that the Supreme Court took upon itself to decide in 2000 was who would be our current president. Given the way Election 2004 is shaping up, perhaps the current Supreme Court will be determining who will be our next.
Over the last four years, the Supreme Court has decided (or declined to decide, which can have just as significant an effect) numerous key cases. In addition to being embroiled in the annual culture clashes over pelvic politics, the Court has split in close decisions involving individual privacy, church-state separation, environmental protection, employment rights, prison conditions, the scope of governmental police powers, and in December 2000, by a 5-4 margin, Bush v. Gore. As for Mississippians, just last week the Court denied the final appeal in the Ayers case, which will have major implications for the funding of public colleges and universities here.
Appointees to the U.S. Supreme Court are chosen by the president, subject to Senate confirmation, for life. Most appointees stay active on the Court well into their 70s or even their 80s. Of the last 10 justices to retire from the Court, their tenures there ranged between not less than 15 years and as many as 36 years, with an average tenure of 25.4 years.
On the present Court, seven of the nine justices were appointed by GOP presidents, stretching back to Nixon—last seen in the White House 30 years ago. Here is a look at a few revealing statistics about those nine justices' longevity on the Court:
• No new justice has been appointed in over 10 years, the longest period the Supreme Court's membership has remained unchanged since 1823.
• Only one of the nine present justices is less than 65 years old.
• Four of the nine present justices are over 70; two of those four are over 80.
• The average age of all nine justices is now 70; the median age is 68.
• The most senior justices on the Court have served there 32, 29 and 23 years respectively; the average tenure among all present justices is over 18 years.
Thus, it is quite likely that two, three or even four of the nine justices will step down over the next four years. Given that Chief Justice William H. Rehnquist is over 80 and the longest-serving justice, his seat may very well open up—that is, the position that controls how the Court's caseload is assigned among the justices.
If you are under 30, there's a very good chance that justices appointed by Bush or Kerry between 2004 and 2008 will still be deciding cases as you hit your 50s (which may seem an eternity away but will approach faster than you dream). If you are 40, there's a very good chance that they will still be there when you become eligible for Social Security (assuming enough folks are still employed to pay your benefits). And if you are nearing 50 now, applying present actuarial tables, history shows you may anticipate that one or more justices receiving a lifetime appointment in this upcoming presidential term will most likely be on the Supreme Court for the rest of your life.
Neither Bush nor Kerry will say much now about whom they might nominate when a vacancy appears. There is little question, however, that each would appoint jurists with wildly differing judicial philosophies, both for choosing the cases the Court should review and for resolving the questions presented in those cases.
Bush has stated in the past that his two "favorite" current justices are Justice Antonin Scalia and Justice Clarence Thomas. These two justices are constant advocates for radical change in the Court's application of the U.S. Constitution. They are relentless and uncompromising in their quest to roll back a wide array of individual constitutional rights long recognized by the Court. They would support expansions of intrusive and aggressive police practices that the majority of the Court has thus far disallowed. They would favor dismantling previous decisions that prohibit government from establishing or financing religious organizations, observances and practices and that protect churches and other religious groups from state interference and coercion. They would severely limit the power of Congress to provide remedies for victims of race- and gender-based discrimination. Scalia and Thomas are the real judicial activists on the current Court.
Bush is likely to appoint new justices who share the Scalia/Thomas philosophy and may well elevate Justice Scalia to be the next Chief Justice. Kerry is more likely to appoint justices who are legal and social centrists, especially given the fact that his nominees would be subject to scrutiny of a Senate that is expected to reflect a Republican majority. This is a major difference between the candidates—perhaps the biggest and certainly the longest-lasting.
So even if you think this year's national elections won't change much in the Iraq quagmire, in the economy, in the jobs picture, or in your day-to-day personal life, please pause to reflect again: the U.S. Supreme Court is one place where the presidential winner could change much that is of immense importance in this country, drastically, for the long term—perhaps for the rest of your life.
Mark Wiggs is an attorney and writer who lives in Belhaven.
Previous Comments
- ID
- 69438
- Comment
On this topic, read this article about Alberto Gonzalez, Bush's nominee for U.S. Attorney General. <
- Author
- Steph
- Date
- 2004-11-13T10:16:46-06:00
- ID
- 69439
- Comment
That is one of the main reasons I voted for Kerry, to keep the Supreme Court from tilting too far to the right.
- Author
- Philip
- Date
- 2004-11-13T19:22:54-06:00
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