Election over - Supreme Court still counts

On December 12, 2000, CNN correspondent Charles Bierbauer reported the Supreme Court decision in Bush v. Gore that effectively ended the 2000 presidential election. Cameras recorded Bierbauer leading the pack as he sprinted from the court into the bitterly cold night to explain the last act of the bitterly contested election.

On November 2, 2004, CMCIS Dean Charles Bierbauer had a warmer post from which to contemplate the results of the heated 2004 election.

His thoughts on one impact of this year’s election were originally written for The State in Columbia.

Now that the presidential election of 2004 is over, the Supreme Court counts. Not in the way that the court counted in 2000.

If President Bush gets to make his first Supreme Court appointment - and “if” is close to becoming “when” - the court will enter a new era. It’s a prospect conservatives have been counting on for the past four years.

The October surprise - that unknown always feared in election years - was not the capture of Usama bin Laden or a devastating attack on Americans in Iraq. It was the sudden hospitalization of Chief Justice William Rehnquist ten days before election day.

Rehnquist’s thyroid cancer and the delay in his return to the court - he’d hoped to be there for arguments the day before the election - underscore the fragility of the nine justices. Rehnquist is 80. All the justices but Clarence Thomas are over 65. Sandra Day O’Connor, Ruth Bader Ginsburg and John Paul Stevens have also encountered cancer.

This group has been together for a decade, the longest period of stability on the bench in nearly 200 years. Justice Stephen Breyer has been the junior justice since 1994.

There were no new faces during the five terms I covered the court for CNN. Each passing term revived speculation about a pending retirement. Yet on the first Monday of each October the court’s curtains parted for the same ensemble. That may have occurred for the last time.

So what happens if the Chief Justice cannot return now or retires at the end of this term?

You might think that jurisprudence would be turned on its ear. But let’s not leap to that conclusion.

It’s true many conservatives have been counting on Bush appointments to reverse Roe v. Wade and its guarantee of a woman’s right to abortion. Or to ban same sex marriage or flag burning. That was much the promise/threat (depending on your perspective) of the 2000 election campaign. Of course, nothing happened.

Nor does replacing Chief Justice Rehnquist in and of itself swing the balance of the court. The campaign rhetoric in its extreme claimed that changing one vote on the court could change the law. That’s bad math.

Roe v. Wade was decided in 1973 by a 7-2 court majority, Justice Rehnquist in dissent. Rehnquist’s opposition has not wavered. In 1993, the court narrowed Roe in the 6-3 opinion of Casey v. Planned Parenthood. Casey allowed states to enact some restrictions so long as an “undue burden” was not placed on a woman. Roe’s guarantee itself remained intact.

In a 2000 opinion, Stenberg v. Carhart, the court threw out Nebraska’s attempt to ban a single abortion procedure often given the emotion inflaming label of “partial birth abortion.” That was a 5-4 ruling, with Justice Anthony Kennedy joining the conservative trio of Rehnquist, Antonin Scalia and Clarence Thomas in dissent. But Roe was still intact and Kennedy did not commit himself to overturning it.

President Bush says he has no “litmus test” for court appointees, but let’s assume he’d nominate a conservative judicially opposed to abortion rights as Rehnquist’s successor. There would be no change in the balance. Roe remains intact, 6-3.

Unquestionably a Rehnquist retirement would alter the court that he has shaped as its chief since 1986. Yet it’s not one seat that abortion foes must count on changing. It’s really three.

Justice Stevens is 83, vigorous and a vote for Roe. If replaced by an abortion opponent, Roe’s 6-3 majority would narrow to 5-4.

Now, bring Justice O’Connor into the mix. More often than any other justice, she is the swing vote when the court is narrowly divided. O’Connor has not wavered on Roe. If Bush were to replace her, too, Roe’s shrunken 5-4 majority could shift to a 4-5 reversal.

Pro-choice voters need not yet despair. Abortion opponents should not too soon rejoice.

Reversal may be an unlikely scenario. Senator Arlen Specter (R-Pennsylvania), in line to become chairman of the Senate Judiciary Committee in the next Congress, doubts Roe can be overturned. A Republican moderate, Specter cautioned this week that the president would have to nominate justices “within the broad range of acceptability” in order to gain Senate confirmation even with an increased Republican Senate majority. A nominee too extreme would face a harsh confirmation fight.

Nor do the justices overturn established law impulsively. They hold great respect for stare decisis, the established precedent of court decisions. With few exceptions - Dred Scott and Plessy v. Ferguson are two - the court does not readily change its mind.

Chief Justice Rehnquist was, for example, never a fan of the court’s Miranda ruling requiring police to inform suspects of their “right to remain silent.” But in 2000, Rehnquist himself wrote the court’s opinion reaffirming Miranda and declining to overturn 34-years of accepted law enforcement procedure.

The Rehnquist court is coming to an end. That is inevitable. Even those justices who have sought to outlast the Bush administration may have been foiled by Tuesday’s election. But the presumption the court will go on a conservative rampage may be foiled by the Senate confirmation process and the court’s own healthy respect for the law it has already acknowledged.