A Times Editorial

President's justice

Voters should keep in mind that the next president may be faced with choosing three or four new Supreme Court justices, who may change the court's direction.

© St. Petersburg Times, published July 19, 2000

Before leaving for summer vacation last month, the U.S. Supreme Court handed down a series of politically contentious rulings that left both liberal and conservative interest groups vowing to make the future makeup of the court a major issue in this year's presidential election.

In a string of split rulings, the court overturned a Nebraska law banning so-called partial-birth abortions, allowed taxpayers' money to be used to provide religious schools with computers and other equipment, and ruled that the Boy Scouts could exclude gays from its leadership ranks. The justices also upheld the Miranda warning to criminal suspects, overturned a New Jersey hate-crime law that allowed judges, instead of juries, to decide sentencing, and struck down a California law allowing voters to cast a ballot in any political party's primary election.

Despite the reaction of some critics, these decisions hardly represent a radical turn in the court's direction. In fact, if public opinion surveys are any gauge, the court's latest round of rulings may be closer to mainstream opinion than its critics are willing to acknowledge. The question is, will the next president use his appointments to upset the court's ideological balance in a way that could dramatically alter the legal landscape for decades to come? Even one or two new justices could swing the court in a different direction on such divisive issues as abortion and affirmative action.

Al Gore, the Democratic presidential nominee-in-waiting, wants to make the court a major campaign issue. He warns that a woman's right to choose an abortion could be lost if Republican George W. Bush gets to nominate one or more Supreme Court justices. With the court split 5-to-4 in many of its more controversial rulings, Gore asserted that a single new justice, a single change of mind, could significantly alter the court's balance and give conservatives a solid majority. Gore predicted that the next president could choose three, possibly four, new Supreme Court justices.

Bush has promised on the campaign trail to appoint justices who "strictly interpret" the Constitution and has said he will apply no ideological litmus tests, on abortion or any other issue, in choosing his nominees. That sounds reassuring until you consider that Bush has expressed admiration for Anthony Scalia and Clarence Thomas, the Supreme Court's two most ideologically conservative members. If Bush set out to remake the court with justices who share the Scalia-Thomas view of the Constitution, it would mark a radical change in the court's direction -- and a change for the worse.

Bush supporters point to Bush's record as governor of Texas as the best indication of the kind of judicial nominations he would make. The New York Times examined that record and concluded that Bush "has appointed justices who have had a moderating influence on the Texas Supreme Court, often regarded as among the most conservative and pro-business in the country." Much to the dismay of social conservatives, the Texas court earlier this year, by a 6-3 vote, overturned a state law Bush signed requiring minors to inform their parents before seeking an abortion.

Historically, there is little evidence that voters give much weight to the Supreme Court issue in choosing a president. For one thing, they know presidents don't always get the kind of justices they thought they were getting. Some of the court's most liberal justices were appointed by Republican presidents. For example, the late Earl Warren and William Brennan were nominated by President Eisenhower, who thought he was adding two conservatives to the court. Eisenhower called them the two biggest mistakes of his presidency.

More recently, Presidents Ronald Reagan and George Bush, who between them nominated five of the nine sitting justices, set out to shift the court in a more conservative direction with their appointments. As it turned out, David Souter, a Bush appointee, has emerged as the leader of the court's liberal minority, and two Reagan appointees, Sandra Day

O'Connor and Anthony Kennedy, have proved to be moderate swing votes who often side with the court's more liberal justices. Yet there is no denying the Reagan and Bush nominees on the whole have given the court a harder conservative edge.

Most Americans probably understand the vital role the high court plays in defining our evolving sense of liberty and justice. The Supreme Court is the only institution of government installed to protect the interests and rights of political minorities. But by consistently ruling in controversial cases by one- and two-vote margins, the court is inviting politics to guide its makeup. When each new member can willy-nilly alter past precedents, choosing the right jurist becomes a political calculation.

The composition of the Supreme Court should be a legitimate concern in a presidential election, and this year voters should think about which candidate -- Gore or Bush -- they trust to keep the court from veering too far to the right or the left.

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