The next Supreme Court majority

The 2000 presidential election is emerging as a potential watershed event that may redraw the composition of the US Supreme Court and set a national agenda that will influence Americans for generations to come.

It will involve political, ideological, and legal battles over the full range of hot-button issues, including abortion, school prayer, affirmative action, school vouchers, and the federal-state power balance.

Estimates by both Democratic and Republican candidates are that two to five justices may step down in the next four years. Such a wholesale exodus from the bench would be unprecedented in Supreme Court history, where the trend has been toward aging justices clinging to their powerful lifetime appointments for as long as possible.

But with the court precariously balanced with 5 to 4 votes on a wide range of national questions, a single appointment could immediately and substantially change the course of constitutional law and radically alter America's future, legal analysts say.

"There is no question but that the Supreme Court is one of the larger and more significant prizes in the presidential election," says Douglas Kmiec, a constitutional-law professor at Pepperdine University in Malibu, Calif. "If you look at the present court's predisposition, they are uniformly 5 to 4. Both sides have a great deal to gain or lose by the composition of the third branch."

No retirement announcements have been made, but speculation among court watchers is that Chief Justice William Rehnquist may choose to step down should a Republican win the presidency in November. Similar speculation has Justice John Paul Stevens retiring if a Democrat wins.

It is impossible to know who each of the candidates might appoint, if elected, but public statements offer clues as to what type of candidate they might favor.

For instance Texas Gov. George W. Bush has said he would seek out justices in the same mold as Antonin Scalia and Clarence Thomas, the two most conservative justices on the court. Even a single appointment along those lines, replacing a more liberal justice like Stevens, would substantially embolden the court's federalism decisions and could lead to landmark opinions in affirmative-action, school-voucher, and school-prayer cases.

Arizona Sen. John McCain also names Justices Scalia and Thomas as models. But he adds to the list Chief Justice Rehnquist and Justice Sandra Day O'Connor, who hails from Senator McCain's home state and supported the court's abortion decision in the landmark Roe v. Wade in subsequent, affirming cases.

Many legal analysts aren't taking the Bush and McCain references to Scalia and Thomas too seriously. They say such statements are attempts to appeal to conservative voters during the Republican primary, and that suggested appointees may grow more moderate in the general election.

Court's shift to the right

On the Democratic side, candidates are using the prospect of Supreme Court appointments to light a fire under liberals who watched the court grow more conservative in recent decades.

"In 1975, if someone predicted that John Paul Stevens would be the most liberal justice on the Supreme Court, people would have laughed, because when he came on the court he was considered a moderate conservative," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst.

Mr. Goldman says the current so-called liberal wing of the high court would fall somewhere near the center or to the right of center of the 1960s Supreme Court under Chief Justice Earl Warren.

The Democratic pitch to voters stresses the need to block Republican attempts to further bolster the court's conservative wing and balance the court with more liberal justices.

Former Sen. Bill Bradley has said he would look for court appointees like former justices Thurgood Marshall and William Brennan. Depending on who is replaced, such a justice could tip the balance in favor of the court's moderate and liberal wing. That could trigger a U-turn on every issue conservative justices hold dear - including reversing a string of federalism decisions from the 1990s.

Vice President Al Gore hasn't been specific about what type of justices he might appoint, saying only that he wouldn't rely on a political litmus test when choosing.

And even racial and ethnic considerations remain a bit murky for the Democrats.

In a debate on Monday, both Mr. Gore and Mr. Bradley were asked if they would pledge to appoint an Hispanic to the high court. Gore dodged the question, saying that he would make appointments that "fully reflect the diversity of our country."

Bradley wasn't much more specific. He said Hispanics should be appointed to the highest levels of the government, including to the Supreme Court. But he stopped short of pledging a high court seat to an Hispanic.

Political analysts say that both sides are pressing the appointment issue because they see it as a potential rallying point that could spark voters who might otherwise stay home. But it remains unclear whether voters are paying attention.

Getting voters' attention

"It is hard to make the Supreme Court and appointments resonate with the American public as a major issue, particularly now when the principle issue is the five-person conservative majority rewriting the law of federalism," says Goldman.

He says the debate over federalism is too esoteric for many voters. But the Democratic Party could make substantial gains with voters if it launched TV ads targeted at potential cases that are relevant to ordinary Americans, like affirmative action, the rights of criminal defendants, and prayer in public schools.

Among second-tier Republican candidates, the big issue is abortion. Steve Forbes, Alan Keyes, and Gary Bauer all are pledging to appoint pro-life justices. Sen. Orrin Hatch is also seen as likely to appoint conservative justices who could vote to overturn Roe v. Wade. To an extent, they are seeking to draw front-runners Bush and McCain into the abortion debate.

They may have gotten a boost with last week's announcement that the high court would hear a case that will examine whether states may regulate so-called partial-birth abortions. The case does not involve a direct challenge to a woman's right to decide whether to have an abortion. But it could complicate the front-runners' campaigns.

"It changes the political dynamic for the candidates," says David Garrow, a professor at Emory Law School in Atlanta. "None of the four leading candidates wants to talk about abortion, and here the Supreme Court is saying, 'Sorry guys, you've got to deal with this.' "

(c) Copyright 2000. The Christian Science Publishing Society