John Dean: The Supreme Court Is At the Tipping Point:

[rumpel]

FindLaw Legal News & Commentary

Should A Democratic Senate Prevent Bush From Creating A Solidly Conservative Court?
An Historic Perspective, and Some Advice to the Senate
By JOHN W. DEAN
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Friday, Feb. 23, 2007

"It has been two decades in the making, but this is the year Justice Antonin Scalia, the Supreme Court's most outspoken dissenter, could emerge as a leader of a new conservative majority," reports David Savage, legal reporter for the Los Angeles Times. Savage says that the Court will soon issue rulings relating to race, religion, abortion and campaign finance "where Scalia's views may now represent the majority."

David Savage's analysis is a reminder that the High Court is closer than ever to a conservative tipping point. Today, the conservative bloc consists of Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. The center-left justices are John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Associate Justice Anthony Kennedy is the swing vote - and often a right-leaning one. However, Kennedy has been surprisingly liberal on issues such as gay rights - as represented by his opinions in Romer v. Evans and Lawrence v. Texas. In addition, he voted not to overrule Roe in Planned Parenthood v. Casey.

What if Stevens, Souter, Ginsburg or Breyer should leave the Court during the remainder of the Bush Presidency? Bush would very likely opt to select another conservative, and create a conservative majority on the Court. This prospect makes conservatives salivate, and liberals shudder.

This hypothetical scenario is anything but a reach. Justices Souter (age 67) and Breyer (68) appear to be in the best of health. However, Justices Stevens (86) and Ginsburg (73) are the oldest members of the Court.

If fate were to open one of these center-left seats on the Court, Senate Democrats should immediately advise the President that they will only consent to a nominee who is a moderate.

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[fasttense]

1. Just think of all the wonderful legislation these black-robed juntas

will outlaw. A conservative block on the supreme court could mess with a whole host of progressive advances. They could pick a repuke president any time a democratic politician wins. They could outlaw minimum wage (again). They could declare child labor laws unconstitutional. They could make unions illegal (again). They could make us all pray and support churches with our tax dollars (oh never mind we do that now). They could bring back indentured servitude and slavery (pretty close to that one now). There are just so many wonderful things they can declare unconstitutional and set the clock back to the 14th century. Women you like voting? They can take care of it for you too. :sarcasm:

[bemildred]

2. Moderate schmoderate. Why are progressives forbidden any representation

on the USSC. Why is any sort of stooge court to be accepted?

[Lobster Martini]

3. Supreme Court Watch

Alliance of Justice's Supreme Court Watch wrote something interesting about recent 5-4 decisions. Rather than repeat it, here's the link: (http://www.supremecourtwatch.org/scw/landmark_decisions.aspx).

None of the current Justices are likely to retire before the 2008 election, but their average age is 66 and the two most liberal Justices are also the two oldest. That does not bode well. At least we dodged Harriet Miers.

John W. Dean's commentary is worth reading in its entirety, but I have to disagree with him on one point--there is no way there will be a vacant seat on the Supreme Court before the election. If you want to hand the keys to the White House to Rudy Giuliani, block a nomination and then have the court deadlocked at 4-4 on any important issue. Given their ages, someone (oh, please, please let it be Thomas and not Ginsburg) is going to retire after the election.

If dreams come true, the next nominee will make Scalia very, very unhappy.