Illness Adds to Urgency on Court’s Direction

Social conservatives like Gary Bauer and liberal advocates like Ralph Neas have found something to agree on this year. Both say the most important issue to be decided in the upcoming presidential election is not Iraq or the economy, but the future of the Supreme Court.

Their view was driven home forcefully by Monday’s news that Chief Justice William H. Rehnquist, 80, has thyroid cancer.

It has been a decade since a justice stepped down -- the longest period of stability since the early 1800s -- and now eight of the nine justices have passed the traditional retirement age of 65.

Some, including Rehnquist, are getting old even by the standards of the Supreme Court. Justice John Paul Stevens, the senior liberal, who has survived prostate cancer, will be 85 in the spring.

The prospect that one or more justices will step down in the next four years fires up -- and also frightens -- conservative and liberal activists.

The court’s future is “an incredibly important issue. There is a values clash in this country, and unfortunately, the courts have become an ever greater factor in making decisions on these profound issues,” said Bauer, chairman of the conservative Campaign for Working Families.

Whereas Bauer worries that a stridently liberal court will authorize same-sex marriages nationwide, Neas says he fears a radical right-wing court led by Justices Antonin Scalia, 68, and Clarence Thomas, 56, will roll back civil rights, workers’ rights and environmental protection laws.

“If you get a Scalia-Thomas majority, hundreds of precedents will be overturned, not just Roe vs. Wade,” says Neas, president of People for the American Way, referring to the Supreme Court decision that legalized abortion.

The high court has the final word on the laws affecting broad areas of American life, including religion, freedom of speech, abortion, the death penalty, civil rights and private property. And other charged issues, such as gay rights and gun rights, are likely to be confronted by the justices in the years ahead.

Even if Rehnquist leaves, it is not certain there will be other court vacancies during the next presidential term.

Stevens, the oldest justice, remains vigorous and may well serve another four years. All but Thomas are active in questioning lawyers during the court’s public arguments.

Justices Sandra Day O’Connor, 74, and Ruth Bader Ginsburg, 71, both have had bouts with cancer, but have never hinted that they planned to retire any time soon.

Most speculation has centered on the chief justice.

Rehnquist has already signaled that if President Bush were reelected, he would probably retire. In that case, Bush would nominate a new member and a new chief justice, with presumably little or no effect on the ideological lineup of the court.

“This election will have a big impact only if a liberal president replaces a conservative, like the chief justice, or if George W. Bush replaces one of the liberal justices,” said Bradford Berenson, a former court clerk who served as a White House lawyer in the current administration.

That raises the question of whether Rehnquist would continue on the court if Sen. John F. Kerry won the White House. Health permitting, he might stay rather than allow his successor to be selected by a Democrat.

Soon after Rehnquist was chosen for the high court by President Nixon nearly 33 years ago, Rehnquist witnessed the decline of Justice William O. Douglas, who refused to resign after a debilitating stroke.

Rehnquist told friends that he would not stay on the court until he became a doddering old man. And despite his health problems, he is certainly not that. He has remained in full control of the court’s arguments and engages in sharp back-and-forth exchanges with lawyers.

If Rehnquist indeed steps down in the next four years, Bush or Kerry could put his stamp on the Supreme Court for decades to come.

In Republican circles, the most talked-about potential Bush appointees are two conservative judges from Virginia and two Latino lawyers. The judges are J. Harvie Wilkinson and J. Michael Luttig, both of whom serve on the U.S. Court of Appeals based in Richmond. The two Latinos are White House counsel Alberto R. Gonzales, a longtime confidant of Bush, and Washington lawyer Miguel A. Estrada, who withdrew a nomination to a U.S. appeals court after Senate Democrats blocked his confirmation vote.

Although Kerry’s staff does not have a short list of nominees, the most discussed among Democratic lawyers include three judges who were appointed by President Clinton. They are David S. Tatel, a civil rights lawyer who became blind as young man; Merrick Garland, a prosecutor in the Oklahoma City bombing case; and Sonia Sotomayor, who was first named as a trial judge by President George H.W. Bush. Tatel and Garland serve on the U.S. Court of Appeals in Washington, and Sotomayor is on the U.S. Court of Appeals in New York.

Neither Kerry nor Bush has said much during the campaign about their plans for the court, but partisans on both sides are setting off alarms.

The conservative Bauer says a liberal Supreme Court can be counted upon to defend abortion and, in all likelihood, vote to remove the Ten Commandments from public buildings and the words “under God” from the Pledge of Allegiance.

“A court with two or three Kerry appointees will say there is a right to same-sex marriage, and that’s a big deal to a lot of Americans,” Bauer said. “I don’t know why the Bush campaign doesn’t point that out every day.”

The liberal Neas says an aggressively conservative court will knock down the wall of separation between church and state and undercut the civil rights, workers’ rights and antipollution laws of the 1960s and 1970s.

In several opinions, Thomas has said he would like to restore the pre-New Deal view of the Constitution by ruling that Congress could regulate only goods crossing state lines, not matters within a state such as its environment or its workplaces.

Yet, for all the dire partisan predictions, Supreme Court justices sometimes confound the political parties that backed their appointments. Lately, it’s been the Republicans who were confounded.

This year’s Republican Party platform, for example, has denounced “activist judges” from the “hard left” and condemned a series of recent Supreme Court decisions. But all those decisions depended on Republican appointees, since seven of the nine justices were named by Republican Presidents Nixon, Ford, Reagan and George H.W. Bush.

Justices Anthony M. Kennedy, 68, and O’Connor, both Reagan appointees, and Justice David H. Souter, 65, named by the elder Bush, have proved to be moderate to liberal on social issues, to the surprise of those who championed their appointments. Last year, for example, they voted to strike down Texas laws banning gay sex, and the year before, they voted to halt executions of convicted murderers who were mentally retarded.

In 1992, five justices -- all Republican appointees -- voted to preserve the right to abortion and to maintain the ban on school-sponsored group prayers.

Conservative activists have insisted that President George W. Bush must not make the same kind of mistake. “No more Souters” was their rallying cry shortly after the former Texas governor moved into the White House.