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Court's internal dynamics—a factor in decisions—may change

WASHINGTON—With Sandra Day O'Connor poised to leave the Supreme Court soon, the talk among interest groups and politicians is about what change will be wrought.

What will happen with abortion? Affirmative action? Church and state separation?

Finding the answer is more complicated than simply subtracting O'Connor's vote in such cases, and adding another, presumably more conservative one. The court's internal dynamics—the way the justices work together, react to one another and shift over time—also play a pivotal role in how cases are decided. And the injection of a new personality into that dynamic could have unpredictable—and, for the White House, undesirable—effects.

Some court watchers say the arrival of another hard-line conservative to the bench, someone in the mold of Justices Antonin Scalia or Clarence Thomas, could embolden moderate conservative Anthony Kennedy.

"If you replace O'Connor with a justice like Scalia, there's no doubt it would change the dynamic inside the court," said Ed Lazarus, a court expert who clerked for former Justice Harry Blackmun. "O'Connor and Kennedy have held down the center of the court together. Now he'll be there by himself. A polarizing justice could add pressure to Kennedy to assert the middle."

Court historian David Garrow put it this way: "Replacing a moderate with a conservative automatically magnifies the center," he said.

The current crop of nine justices, including O'Connor, held together for 11 years without a retirement or death—a record in the modern court era. And by all accounts, both inside the court and out, the justices are among the most collegial group in the court's history.

Under the even hand of Chief Justice William H. Rehnquist, they have largely avoided the acrimony that dominated courts that confronted issues such as Roosevelt's New Deal and the beginnings of the civil rights movement.

There is disagreement—sometimes bitter—over a number of issues, but the proceedings are cordial, and bad feelings don't bleed over from one case to the next.

Even Scalia's biting opinions, which sometimes take aim at other justices' take on the law or their intellect, are not a cause for extended bad feelings.

"You used to have courts where justices displayed open disrespect for the chief justice," Garrow said. When Louis Brandeis was appointed as the first Jewish justice, Justice James McReynolds, a notorious anti-Semite, refused to speak to him, or sit next to him for a court portrait. McReynolds retired in 1941.

"The court this last 11 years has probably been the happiest and most collegial in over a century," Garrow said.

At least partially on the strength of that collegiality, the court has settled into somewhat familiar patterns, revolving around the twin center of O'Connor and Kennedy.

A new face at the court—and the possibility of two, if the ailing Rehnquist leaves soon—means certain change to that stability.

If O'Connor's replacement is more consistently conservative than she is, but also takes to the court's air of cooperation, his or her vote could begin to prove decisive in close cases. But a more aggressive justice, given to extreme positions and derision for the court's other members, could have the opposite effect.

That would empower Kennedy, whose shift to the court's middle has seemed dramatic over the past few terms, and has been decisive in a number of cases that have left conservatives reeling.

Unlike Scalia and Thomas, Kennedy does not adhere to strict constitutional philosophy, and balances interests to come up with his rulings in the court's cases. That approach puts him more in league with O'Connor, Souter, John Paul Stevens and Ruth Bader Ginsburg. He has a strong penchant for individual liberty, and can be a stickler for procedure in criminal cases. He has been the target of far-right ire at least partially because he got the seat that was initially reserved by President Reagan for Robert Bork, whose approach to the court would have more closely mirrored Scalia's.

In the 2003 decision overturning gay sodomy laws, it was Kennedy who penned the most expansive ruling—one that even O'Connor declined to support. He did the same in the spring ruling that struck down the juvenile death penalty, again without O'Connor's support.

Kennedy also supports limited use of racial preferences, though he voted to strike down two University of Michigan admissions policies in 2003. He has supported most state restrictions on abortion, but has resisted efforts to overturn Roe v. Wade—a key goal of some conservative groups.

On many issues, the court's conservatives would need to convince Kennedy to side with them to overturn liberal precedents, and the new justice could either ease that process, or aggravate it.

Kennedy joined the court in 1986, appointed by Reagan, and began his tenure as a reliable vote, nearly in the mold of Scalia. But as the court's truly liberal wing—composed of justices like Thurgood Marshall, William Brennan and Harry Blackmun—retired, Kennedy has shifted more to the center. Lazarus said he has adopted a role as the court's "moral conscience, from a conservative perspective," but it's a fair distance from where he started.

"O'Connor's absence could be an opportunity for change on some issues for conservatives, but if he's made more powerful by the new appointee, the impact could be much less," Lazarus said.

Garrow said if the White House is thinking strategically, it will appoint a new justice who, both philosophically and by his or her approach, might frequently entice Kennedy or one of the court's more liberal justices to the more conservative side.

"You want someone who might persuasively keep tugging on his shirt sleeve," Garrow said.


(c) 2005, Knight Ridder/Tribune Information Services.

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