Supreme Expectations

The Washington rumor mill is busy grinding out speculation that President Obama will soon have a chance to nominate one or possibly two new justices to the Supreme Court. The speculation focuses more often on the anticipated retirement of Justice John Paul Stevens and, less often, on that of Justice Ruth Bader Ginsburg. Both are stalwarts of the court’s liberal wing.

In the immediate future, Stevens is more likely to go. He’s served since 1975, turns 90 in April, and is said to be visibly slowed. The best indication of his intentions may be that he’s hired only one clerk for next year. That’s the number allowed to retired justices, whereas active justices get four.

Ginsburg, 77, is less likely to step down right now. Although she’s been treated twice for cancer, she apparently enjoys her work and is in no hurry to quit. One scenario  has her staying through the court’s current term and the one after it, then stepping down well before the 2012 presidential election to make sure that it’s Obama, not somebody else, who proposes her successor.

If Obama does get to make new picks for the Supreme Court, it goes without saying that he will select liberals. It’s a bit soon to be absolutely certain, yet already it seems reasonably clear, that his 2009 choice, Justice Sonia Sotomayor, falls in that category. We should know more about that before the present term ends in June.

Sotomayor replaced David Souter—a liberal for a liberal, it appears. If new Obama nominees replace Stevens and Ginsburg, that will be liberals replacing liberals again. The obvious effect of these changes will be that the president has made the court younger than it was when he came to office but, up to that point at least, not accomplished ideological change.

To be sure, words like “liberal” and “conservative” often prove not to be comfortable fits for labeling Supreme Court justices. Bearing that in mind, it’s nonetheless not unfair to say that, as presently constituted, the court breaks down 4-4-1—four conservatives, four liberals, and one swing vote.

The conservatives are Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. The liberals are Stevens, Ginsburg, Stephen Breyer, and, apparently, Sotomayor. The swing voter is Anthony Kennedy. It is a remarkable and unprecedented fact that six of these—Roberts, Scalia, Thomas, Alito, Sotomayor, and Kennedy—are Catholics. But, as their voting records suggest, religion has no visible bearing on how they decide cases.

The ideological makeup of the Supreme Court does, however, have a very strong bearing on the way it’s likely to deal with social issues like abortion and same-sex marriage. As matters now stand, the four liberals are solid votes in favor of legalized abortion and the four conservatives are no less solidly in favor of at least some restrictions on the practice. The justices have not been tested on same-sex marriage but would probably split the same way on that question.

This leaves Kennedy. He’s a supporter of the 1973 abortion decision, Roe v. Wade, but in 2007 wrote the majority opinion upholding the federal ban on partial-birth abortion. As for same-sex marriage, in 2003 he wrote the court’s opinion striking down state anti-sodomy laws yet at the same time made the improbable assertion that the ruling wasn’t relevant to the marriage question.

Like the flowing river of ancient Greek philosophy, the Supreme Court is always the same and always changing. Keep your eye out for what floats by next.

Russell Shaw


Russell Shaw is a freelance writer from Washington, D.C. You can email him at

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