President Bush's re-election, coupled with strengthened Republican control of the Senate, has fueled speculation that the next four years could bring about dramatic shifts in political composition of the U.S. Supreme Court, paving the way for drastic, long-term changes in American laws and policies.
While Bush may be poised to push the court in a more conservative direction, a forthcoming study in the North Carolina Law Review suggests his ability to make dramatic ideological changes still hinges on whether he has the opportunity to replace Justice Sandra Day O'Connor.
Based on a sophisticated analysis of Supreme Court voting behavior, the study offers a detailed analysis of how the conservative-liberal tendencies of the Supreme Court might have changed given a number of post-election scenarios, such as a Bush v. Kerry election, Republican v. Democrat control of the Senate and various departures from the Supreme Court.
"Sandra Day O'Connor's departure from the Court would provide the next president with an opportunity to remake the Court," says Lee Epstein, study co-author and the Edward Mallinckrodt Distinguished University Professor of Political Science and Professor of Law at Washington University in St. Louis.
On the other hand, the study suggests that Rehnquist's departure may not have a dramatic impact on the political composition of the Court.
"Our paper showed that if Rehnquist leaves and Bush was reelected and the Senate stayed Republican, the Court would not change very much — wouldn't become more liberal or conservative," Epstein said. "But, if the Democrats had regained control of the Senate OR the White House (or both), we predicted the Court would move to the left.
"Regardless of the composition of the Senate, the data suggested that Kerry would have been in the near-historic position to move the Court — and, crucially, to move the Court in a direction that favored his vision of public policy," she continues. "Bush is in much the same position as Kerry — with one very critical distinction: only with a Republican Senate in play will he, in all likelihood, be able to shape it in a way that reflects his political preferences."
Epstein's comments are based on an in-depth analysis of Supreme Court voting behaviors and trends using a new methodology developed by Andrew D. Martin, associate professor of political science at Washington University in St. Louis, and Kevin Quinn, assistant professor of government at Harvard University.
The Martin-Quinn method utilizes a new empirical technique for identifying the Justice who occupies a pivotal and powerful position at the ideological center of fellow Justices - a position that often allows this "median" Justice to cast a deciding vote in controversial and highly divisive court cases.
The study was presented at an Oct. 29 legal symposium at the University of North Carolina School of Law.
Key findings include:
- Over her career, Justice O'Connor has moved noticeably to the left
- Largely as a result of O'Connor's movement, the Court's decisions have grown more liberal since 1999.
- There is some evidence that key decisions such as Grutter and Lawrence would not have been the same had O'Connor not significantly moderated her issue positions.
- If O'Connor retires during the term of the next President, the court may become noticeably more conservative under a Bush Presidency and noticeably more liberal under a Kerry presidency.
- The retirements of other Justices would have similar effects although the retirement of a liberal (conservative) Justice would only make the Court more conservative (liberal) or not change it.