Political Pulse July 2007

The Bush Court

President Bush has made good on his pledge to move the Supreme Court to the right. As a result, the Court could be more of an issue in the 2008 presidential race than it was in 2004.
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Back in 1900, author Finley Peter Dunne quoted Mr. Dooley, his fictional Irish saloonkeeper, as saying, "The Supreme Court follows the election returns."

That is certainly the case with the Supreme Court term that just ended. "The Roberts Court is a different Court because George Bush won the last election and John Kerry did not," legal analyst Jeffrey Toobin said. "That is the beginning and end of the reason why this is a much more conservative Supreme Court than two years ago."

In several significant cases, a conservative majority that included both Bush appointees changed the Court's direction.

  • In 2000, the old Court threw out a state ban on late-term abortions by a 5-4 vote. This year, the new Court upheld such a ban by 5-4.
  • In 2003, the old Court upheld the McCain-Feingold campaign finance law by 5-4. Last week, in a 5-4 vote, the new Court struck down the section of that law restricting pre-election issue advertising.
  • In 2003, by 5-4, the old Court allowed the use of race as a criterion for admission to schools of higher education. Last week, by 5-4, the new Court struck down the use of race as a criterion for placing students in public schools.
  • On the old Court, three reliably conservative justices—William Rehnquist, Antonin Scalia, and Clarence Thomas—were frequently joined by Anthony Kennedy, a moderate conservative. Four reliable liberals—Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens—were sometimes joined by Sandra Day O'Connor, a swing vote.

    On the new Court, Bush has replaced Rehnquist with John Roberts, an even more reliable conservative. He also replaced O'Connor with Samuel Alito, a reliable conservative. Alito's vote, along with that of Kennedy, shifted the Court's majority to the conservatives. The four liberal justices are now almost always in the minority on close votes.

    In the view of Georgetown University law professor Steven Goldblatt, "Justice Alito is a much more predictable conservative vote than Justice O'Connor would have been." Even Kennedy, the current swing vote, has become more predictably conservative. According to The Washington Post, when the Court split 5-4 along liberal-conservative lines this term, Kennedy sided with the liberal bloc six times and the conservative bloc 13 times, including on the three cases cited above.

    When earlier presidents nominated justices, ideology was often just one consideration among many. President Reagan was fulfilling a pledge to appoint a woman when he named O'Connor in 1981. When the Senate rejected Robert Bork in 1987 after a bruising ideological fight, Reagan tapped a moderate conservative, Kennedy, to avoid another battle. In 1990, President George H.W. Bush picked Souter, whose views were largely unknown, because he, too, wanted to avoid a fight with a Democratic Senate.

    According to Toobin, "Presidents didn't used to run for office making promises about the kind of justices they would appoint. But President George W. Bush did, and he has delivered on those promises by transforming the Court in a short period of time."

    Was the Court an issue to voters? In 2004, a Newsweek poll asked Americans how important each of 11 issues would be in their vote for president. The results, in order of importance, were the economy, health care, education, Iraq, terrorism, Social Security, taxes, the deficit, foreign policy, the environment, and—at the very bottom of the list—the Supreme Court. Although the Court was not a major issue for most voters, it mattered a great deal to Bush's conservative base, which has been protesting "judicial activism" for decades.

    In 2008, the Court could be an issue for more of the electorate. "The stakes in the next presidential election are actually huge because the only likely Court retirees are on the left," said Thomas Goldstein, a Supreme Court lawyer who writes for Scotusblog. "A Republican president could really swing the Supreme Court in a very conservative direction, or a Democratic president could hold the line against further movement to the right."

    So, yes, the Supreme Court did follow the election returns during the Bush presidency. After all, arguably, the 2000 election returns followed the Supreme Court.

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    William Schneider is the Cable News Network's senior political analyst. He is also a resident fellow at the American Enterprise Institute in Washington, D.C., and a contributing editor for the Los Angeles Times, National Journal, and The Atlantic Monthly. His column appears every week in National Journal, a weekly magazine covering politics and government published in Washington, D.C.

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