2004 Winner may bring power to appoint 4 justices

Win may bring power to appoint 4 justices
Campaigns urged to focus on impact
By Charlie Savage, Globe Staff | July 7, 2004

WASHINGTON --Following a Supreme Court term that redefined national security laws with a scope not seen for half a century, activists on the left and the right are urging the presidential campaigns to focus on what could be the most far-reaching impact of the election: the power to appoint as many as four new justices.

The court reined in President Bush's power to imprison accused terrorists, but held that "enemy combatants" may be indefinitely detained with new safeguards. It left the words "under God" in the Pledge of Allegiance, upheld campaign finance limits, and spurned an attempt to shield children from Internet pornography.

The demonstration of the court's raw power to have the final say on issues of national importance underscored this fact: The decade since the confirmation of Justice Stephen Breyer is the second-longest interval without a vacancy in American history -- a period just shy of the 11-year record for Supreme Court stability, from 1812 to 1823.

Few believe the present court can hold together for another four years, pointing to seats held by two liberals, a conservative, and a frequent swing voter. Justice Ruth Bader Ginsburg, 71, has battled cancer since 1999. Justice John Paul Stevens is 84. Chief Justice William Rehnquist, 79, and Justice Sandra Day O'Connor, 74, are said to have eyed retirement for several years.

Because this court reaches many decisions by 5-to-4 or 6-to-3 votes, the next president may be able to transform its delicate balance into a solid ideological majority that will control American law for the next generation.

"The next president is definitely going to appoint at least two and possibly as many as four justices to the high court, in effect recasting the court's direction for the next 20 years," said Sean Rushton, executive director of the conservative Committee for Justice. "For that reason, it's vital that the right kind of people with the right kind of judicial philosophy be appointed."

For Rushton, that means no more "judicial activists" -- whom he defines as judges who "make law" in divisive areas upon which the Constitution is silent, instead of leaving such issues to state legislatures and Congress. Three justices -- Rehnquist, Antonin Scalia, and Clarence Thomas -- now generally share that view.

At the liberal People for the American Way, executive director Ralph Neas argues that a court majority with that perspective would overturn 75 years of jurisprudence, gutting environmental regulations, abortion rights, and a host of civil rights.

But he agrees with Rushton on one thing: Although the campaigns so far have talked mostly about the Iraq war and the economy, the future of the judiciary deserves much greater attention in this election.

"All these constitutional issues are being decided by 5-4 and 6-3 decisions," Neas said. "Sometimes we're pleased, sometimes Sean is pleased, but they're all closely decided. Our analysis shows that more than 100 Supreme Court precedents would be overturned with one or two more right-wing justices like Thomas and Scalia."

To be sure, the court was unanimous in several notable cases this term, including rulings that preserved "under God" in the Pledge of Allegiance, struck down state laws that allowed coverage-decision lawsuits against insurance companies, and let Mexican freight trucks access American highways under the North American Free Trade Agreement.

But tighter decisions were the norm.

By 5-to-4 votes, the court upheld a campaign finance law banning of unlimited, or "soft money," contributions to parties, upheld the Pennsylvania Legislature's plan to gerrymander the state's congressional districts in a manner that favored Republicans, and struck down criminal sentencing guidelines that allowed judges to add prison time for aggravating factors not found by a jury.

The court voted, 6 to 3, to uphold the use of a 215-year-old law, the Alien Tort Statute, by activists who have recently invoked it to sue multinationals for alleged offenses committed outside the United States against international norms. The majority narrowed the scope of what suits are permissible, but stopped far short of overturning the law, as businesses urged.

The justices were not always predictable. Thomas joined the liberals and Breyer joined the conservatives in a 5-to-4 vote invoking the First Amendment to block the enforcement of the Child Online Protection Act, which would have imposed criminal penalties on Internet pornography businesses that fail to screen out minors.

And Scalia joined Stevens, perhaps the court's most liberal justice, in rejecting the constitutionality of Bush's claimed power to indefinitely detain US citizens accused of collaborating with terrorists as enemy combatants.

They were in the minority. Five justices held that the president may indefinitely detain US citizens without explicit congressional authorization, though four of them insisted that detainees get a lawyer and an opportunity to rebut the evidence.

Recognizing that major legal issues about terrorism will inevitably reach the court again, both sides also focused on its future makeup.

"The stakes are huge," said David Rivkin, an associate White House counsel in the first Bush administration. "We have always looked to Supreme Court appointments as impacting school prayer, abortion, and affirmative action. But that paradigm needs to be expanded to include cases that strike a balance between individual liberty and public order."