Is the Supreme Court’s Conservative Majority Imperiled?

It is an interesting coincidence that exactly at the time that Justice John Paul Stevens announces his retirement from the Supreme Court, the current edition of The American Spectator has its cover story devoted to ‘a conservative turnaround in the U.S. Supreme Court’ originally engineered by William Rehnquist and Antonin Scalia (TAS, April 2010, ‘The Good Old Days,’ pp. 14-19). It is a convincing essay, explaining how Rehnquist (appointed by Nixon in 1972, elevated to Chief Justice by Reagan in 1986) and Scalia (appointed by Reagan in 1986) have reversed the liberal, activist, non-originalist policies of the Warren and Burger Courts. The two men laid the foundation for the current conservative majority (Scalia, Thomas, Roberts, Alito and Kennedy) and for important conservative opinions of recent years. The article’s author (Alfred Regnery – also publisher of TAS) cites as evidence recent opinions such as: the ruling banning late term abortions, abolition of affirmative action programs in high schools, evisceration of McCain-Feingold and the unconstitutionality of the DC gun ban.

But of course the conservative majority is precarious. In fact, in the years 1950-2008, out of 23 justices appointed, 17 of them were chosen by Republican presidents. Yet during that time – at least until Roberts and Alito cemented the conservative majority – the Court’s decisions were heavily leftist-oriented. Repeatedly, the phenomenon of supposedly conservative jurists drifting slowly, but inexorably to the left occurred over the years: Souter, Stevens, Blackmun and of course Burger and Warren. Even two of Reagan’s were not immune – O’Connor and Kennedy. By the end of her term, O’Connor had slid rather pathetically to the left – and Kennedy was headed in that direction too until Roberts-Alito pulled him back in the last half decade.

By contrast, every appointment by a Democratic president has started and stayed firmly on the left. Clinton’s two appointees (Bader Ginsburg and Breyer) are prime examples. And now we have as President a rigidly leftist ideologue. He has made one ultra-liberal appointment and of course he will make another. But fortunately the justices he is replacing were also in the liberal minority. So unless he appoints a towering intellect who becomes a highly influential liberal justice – things won’t change. If his first appointment is any guide, a towering intellect is very unlikely.

Can the conservative majority survive? Souter was old (although not as old as others who remain) and Stevens was ancient. Both stayed on through the Bush administration just so that the Court would not tip any further to the right. But a death or resignation of any of the five conservative jurists who remain will enable our socialist, community-organizer President to destroy the conservative majority and add another critical building block in his quest to remake America as a European-style social welfare state.

Here are the approximate ages of the justices:
50s – Roberts, Alito, Sotomayor;
60s – Thomas;
70s – Scalia, Kennedy, Bader-Ginsburg, Breyer;
?? – Obama’s new appointment, likely no older than 50s.

The key group is the four in their 70s, with two from each camp. I believe Bader Ginsburg’s health is the most problematic. But in fact, I hope they all hold on through 2012 – and 2016 if need be. My reason for praying for the health of Scalia and Kennedy is obvious. But I hope the two liberals hang on too, for if not, Obama will just replace one or both with younger clones.

How sad that the fate of our country hinges on the relative health of four unelected judges