The Washington Post had a article recently about the way in which more and more American’s are viewing the court as too conservative. 33% of Americans feel that the Court is too conservative and only 47% believe that the court is balanced. 55% of Americans agree with the court’s ruling in Carhart but 70% disagree with the school board ruling in Parents Involved.I don’t know what liberals can do to take back the court. Republicans have done such a good job of brainwashing the American people into believing that a liberal justice is the same as a liberal activist judge that the court has become an increasingly hard sell for democrats. Now that a majority of the American people are less than happy with the direction of the court, it is an important time for the democrats to rephrase the debate. As it stands now, I could see this line of questioning:
- Kedar: Hey, do you think the Supreme Court has become too conservative?
- Random Person: Yeah, that race ruling about the schools was crazy- I thought we had gotten past discrimination!
- Kedar: Would you be in favor of appointing some liberal justices?
- Random Person: Umm…I don’t think I want any activist judges on the court either.
- Kedar: So what do you think is the best thing for the court?
- Random Person: This court thing is complicated. Lets talk about Iraq!
The democrats need to capitalize on the American people’s disapproval of the Court ASAP. October Term 2007 is likely to be more subdued than OT 2006 by virtue of the fact that the court doesn’t always stumble upon so many high-profile cases in a single year. It just happened that all of the planets aligned last term to produce conservative victories in a race-based case (Parents Involved), an abortion case (Carhart), a womens-rights case (Ledbetter), and a free speech case (Morse). Thus far, the court has accepted review in only one high-profile case, Boumediene, and detainee-rights don’t invoke the same reactions that abortion, free speech, discrimination, and civil rights do.
Chuck Shumer has declared that he would rather not confirm any new Bush nominees but I’m not sure that Bush will have the opportunity to nominate any more justices. Most Supreme Court watchers aren’t expecting a new appointment until after the 2008 election although then the Court’s makeup is up for grabs. More likely than not, one or more of the liberal justices will leave in the next 5 years and none of the conservative justices will leave their post (save for the possibility of a Thomas resignation if a Republican wins in ’08.) If a Republican wins in ’08, John Paul Stevens will be 92-years old by the time the Oval Office is up for grabs again in 2012. At 92, he will be old even for a Justice and will face the tough decision to step down (dooming the liberals on the court) or fighting through 4-years of Supreme Court coursework (dooming himself during what should be his retirement.) If he serves until 2012, he will be the oldest Justice to ever sit on the court, beating Oliver Wendell Homes who served until he was 90. If a democrat wins in the White House in ’08, I would not be surprised to see Stevens and/or Souter retire. Stevens will be as old as antiquity and a lot of people are under the impression that Justice Souter isn’t too pleased with his current job.
Court-watchers are also expecting Ginsburg to step down, but after the whipping that liberals got from conservatives this during OT 2006, I’m not sure if Ginsburg is going to retire anytime soon. She’s only 74 right now and she’ll be almost 80 in 2012 when the White House is up for grabs again. Stevens is 87 right now and has shown no signs of letting up any time soon so its not inconceivable that Ginsburg will take full advantage of her tenure and stay another decade (or two!).
To summarize: If a Democrat wins in ’08, the court’s dynamics won’t change much. If a Republican wins in ’08, there is a very good chance that the court will shift even further to the right than it already has.