The hospitalization of U.S. Supreme Court Chief Justice William Rehnquist for thyroid cancer suddenly spotlighted one issue that has received too little attention in this campaign. The next president could put at least two, but perhaps as many as four, new justices on the high court, changing the course of U.S. lawmaking and public policy for decades to come. And that will likely have a far greater impact on the nation than virtually anything else the next president is likely to do.
The current court is aging and infirm. All but one of the justices, Clarence Thomas, is over 65. The 80-year-old Rehnquist is one of four justices who’ve had brushes with cancer. Justice Sandra Day O’Connor, 74, has been treated for breast cancer; Justice Ruth Bader Ginsburg, 71, for colon cancer and Justice John Paul Stevens, the oldest justice at 84, for prostate cancer. And rumors have persistently swirled about one or all of these retiring before long.
How this attrition might shape a court that is sometimes called conservative, but actually is split ideologically, with O’Connor providing the swing vote, will depend on three things: who the next president is, who he appoints and who the Senate will confirm. Rehnquist is readily identified as one of the court’s conservatives, along with Antonin Scalia and Clarence Thomas. Stevens and Ginsburg are generally identified as liberals. O’Connor is a moderate.
It’s clear, then, that the next president could tip the current balance on the court decisively. But much also depends on the outcome of the heated, possibly vicious Senate confirmation battles bound to erupt whether John Kerry or George Bush is making the nomination.
It’s difficult to predict whether Rehnquist’s illness will catapult the Supreme Court into the top tier of campaign issues with less than a week left before Election Day. But few issues would be more worthy of serious debate in a campaign that has too often focused on relative sideshows.
When it’s come up during the campaign, Bush has said the only “litmus” test he has for nominees is that they will strictly interpret the Constitution and not read their own agendas or biases into the law. Kerry, on the other hand, has said he would not appoint any justice who might be inclined to overturn the Roe v. Wade decision on abortion. But beyond that, we have heard too little from both candidates on what they would be looking for in prospective justices.
Liberal and conservative groups were quick to seize on Rehnquist’s illness as an opportunity to energize their supporters. Elizabeth Cavendish, interim president of NARAL Pro-Choice America, called the illness “a sobering reminder of just how high the stakes are in this election,” adding that Bush “cannot be trusted” to nominate people to the Supreme Court. “People don’t want a court that is going to set a whole lot of social policy or completely scrub religion from the public square,” countered Sean Rushton, a spokesman for the Committee for Justice, a conservative group. “Average folks don’t want the court mandating gay marriage.”
Such is the cynicism and paranoia that some Democrats and liberal pundits have suggested Rehnquist’s illness is some sort of Republican “October surprise” meant to tilt the race in the president’s favor. But given that Americans of every political stripe have a stake in how the court rules, it’s far from certain that higher public anxieties about its future would work to the GOP’s advantage.
We’re not so cynical that we see Rehnquist’s misfortune as some sort of campaign trick. We’re just glad that the Supreme Court’s future was finally elevated to the place it deserves as a campaign issue, even if belatedly.