2004 October 31 Sunday
Supreme Court Will Move Left Or Right Depending On Election Outcome

Ideologically speaking the Supreme Court is not going to stay put in the next 4 years. The US Supreme Court has moved to the political Left as Sandra Day O'Connor has moved Left. O'Connor has provided the swing vote on just about all close Supreme Court decisions. The other justices were frequently predictable and only O'Connor's decision could not be foreseen (or so I have read on a number of occasions). Many Court watchers expect O'Connor to retire in the next 4 years and therefore whether Bush or Kerry is elected will determine whether the Supreme Court will move Left or Right.

"Sandra Day O'Connor's departure from the Court would provide the next president with an opportunity to remake the Court, and this is especially true if Kerry is elected," says Lee Epstein, study co-author and the Edward Mallinckrodt Distinguished University Professor of Political Science and Professor of Law at Washington University in St. Louis.

On the other hand, the study suggests that Rehnquist's departure may not have a dramatic impact on the political composition of the Court.

"Our paper shows that if Rehnquist leaves and Bush is reelected and the Senate stays Republican, the Court will not change very much — won't become more liberal or conservative," Epstein said. "But, if the Democrats regained control of the Senate OR the White House (or both), we predict the Court would move to the left.

"Regardless of the composition of the Senate, the data suggest that Kerry will be in the near-historic position to move the Court—and, crucially, to move the Court in a direction that favors his vision of public policy," she continues. "Bush is in much the same position as Kerry — with one very critical distinction: only with a Republican Senate in play will he, in all likelihood, be able to shape it in a way that reflects his political preferences."

Bush so far has been unable to appoint anyone to the Supreme Court. If Bush gets reelected then any appointments he makes to replace retiring conservative justices will not shift the Court. But any appointments he makes to replace retiring liberals or O'Connor will shift the Court Rightward. Similarly, if any liberals or O'Connor retires and Kerry is elected then Kerry will be able to shift the Court Leftward.

In a nutshell: Bush's invasion of Iraq may cost him his reelection and as a consequence cause a shift of the Court in a Leftward direction. The plaintiff's bar will make out and property rights will be less safe. A more leftward leaning Court will enable more social engineering. Systems of racial preferences to discriminate against white people will be protected and may well expand. But women who want to have a federally recognized right to abortion will get their way.

If Bush gets to choose then maybe he will appoint judges who will restrict the power of the federal government to encroach on matters better decided by state and local governments. But it is not clear that Bush do any better with his picks on racial preferences. Bush may (probably will) a appoint racial preferences favoring Hispanic such as White House lawyer and Texas chum Alberto Gonzales to the Supreme Court. Such an appointment may turn out to be as bad or worse than O'Connor by moving even further Leftward.

Still, once a reelected Bush has made a pseudo-conservative Hispanic appointment he might then appoint a real conservative for a following appointment if a second justice retires.. Whereas with Kerry we will get pure bred left-liberals for each appointment. So as bad as Bush would be on the Supreme Court Kerry would be worse.

The likely effect on the Supreme Court of a Kerry win strikes me as the strongest argument for Bush to win reelection. However, I still think the Republicans would be better off on the long run if Bush and the necons were seen to have pursued policies (immigration amnesty, in favor of racial preferences, big social spending increases, the Iraq Debacle, etc) that so alienated the Republican base that Bush lost. Regardless of whether Bush or Kerry wins America will lose.

Share |      By Randall Parker at 2004 October 31 11:11 AM  Politics American Constitution

noone said at October 31, 2004 12:54 PM:

"The plaintiff's bar will make out and property rights will be less safe."

Never a major issue for the Bushies.

"A more leftward leaning Court will enable more social engineering. Systems of racial preferences to discriminate against white people will be protected and may well expand."

Bush already did this in Grutter and UM aa cases.Senate ML Frist wants all new AA programs for medical school(which in part doomed HillaryCare).Orrin Hatch is more or less the biggest supporter of federal hate crime laws,despite the fact they have local level almost only been applied to the type of people most likely to vote for Hatch.

"But women who want to have a federally recognized right to abortion will get their way."

One point where Bush is conservative and the numbers are actually trending in his direction,ironcially due in part to the immigration of muslims and latinos.

Bush may?

Bush is no more conservative overall than Kerry himself.Beyond the war,his major issues (what he's been willing to spend politcal capital)have been immigration and amnsty,AA,tax cuts,free drugs and education.Bush has been willing to twist arms,it's just been conservative arms he's twisted.

The real significance of your post is how much elections are now about appointing unelected officials,another symptom of institutional failure in our country.
We're going down the tubes,people don't mind because the water isn't spinning all that fast....yet.
Whoever is elected,government will be come more authoritarian.They'll just use different excuses during elections.

Randall Parker said at October 31, 2004 1:12 PM:

Noone, Yes, in the U Mich cases Gonzales in the White House rewrote DOJ IG Theodore Olsen's Supreme Court brief to essentially gut it. But Bush is still going to appoint, on average, justices who are more opposed to racial preferences than Kerry will appoint.

Latinos are NOT trending Republican. As the latest polling numbers show Steve Sailer has been right about the futility of the Bush-Rove strategy for Hispandering. See the latest W Post piece where Balz and Morin report "The new poll also found that Democrat John F. Kerry leads President Bush by 59 percent to 30 percent among registered Hispanic voters, virtually unchanged from a Post-Univision-Tomas Rivera Policy Institute (TRPI) survey in July."

Yes, Senator Bill Frist is as bad as Bush on racial preferences.

David N. St. John said at October 31, 2004 1:55 PM:

Randall -- "Similarly, if any liberals or O'Connor retires and Kerry is elected then Kerry will be able to shift the Court Rightward." Didn't you really intend to write, "shift the Court Leftward"?

David N. St. John

Randall Parker said at October 31, 2004 2:17 PM:

David, Oops! Thanks for catching that. I fixed it.

Given the quantity of stuff I write I'm actually surprised I do not make more really dumb errors.

birch barlow said at October 31, 2004 3:44 PM:

The Supreme Court is the main reason I'm hoping for a Bush victory. Were it not for the Supreme Court, I might very well hope for a Kerry victory, assuming the Republicans keep their majority in the Senate and their strong majority in the House. I certainly agree that Bush may very well choose leftist appointee(s), but he *could* choose one or more actual conservatives too. Kerry will almost certainly choose hard left judges. If I lived in a swing state, I'd probably hold my nose and vote Bush--two or three hard leftists on the court could be a disaster. A leftwing Supreme Court could force softness on crime (such as by declaring Three Strikes unconstitutional), fiscal irresponsibility (by creating all kinds of costly mandates under the guise of "equality" or some other loony non-interpretation of the Constitution), and even looser borders (by giving illegal aliens special rights or declaring merit-based immigration reform, should it come, unconstitutional). A leftwing Supreme Court could even limit free speech by declaring works such as The Bell Curve, this website, and similar websites like iSteve and GNXP "hate speech."

Randall Parker said at October 31, 2004 4:29 PM:


If you think our free speech rights will be any safer under Bush then read this.

I have never been so disgusted by the choices we had for the Presidency.

Luke Lea said at October 31, 2004 5:10 PM:

If Kerry is elected I predict that he will appoint surprisingly moderate justices, similar to Clinton's. A lot of his liberalism has been tailored to the political realities of Massachusetts. Plus, even liberals have learned a few lessons over the past couple of decades, and may not repeat their mistakes. On the other hand, Bush is more likely to appoint real outliers, like Thomas or Scalia (the latter having a picture of Justice Taney on his wall, the guy who gave us Dred Scott . . .).

Randall Parker said at October 31, 2004 5:35 PM:


I do not see Scalia as an outlier. You are further to the Left than you seem to be aware of. I bet you think all the liberal Supreme Court justices are moderate, right?

noone said at November 1, 2004 8:08 AM:

"Latinos are NOT trending Republican"

A point that completely escapes neo-cons and open border libertarians.That short term "cheap labor" is costing them and will cost them big time in the future.

But this obscures the point I was intending to make,the emphasis both parties make in regard to judicial appointments.That elected politicians basicaly repudiate their responsibilty to govern democraticly in favor of undemocratic judical government,IMHO,points to systemic failure of our government and by extension,our society and ourselves as a coherent nation state.
As an example look at the UK.By any objective standard,New Labor is a total failure,whether the issue is public education,public health,public transportation or public safety,the Blair govt'has has made all these issues worse.The only segment they can impose themselves on are the most law abiding,who have responded to ceaseless political,cultural,social and economic depradations by either moving to France(if they can afford it) or forming groups like the countryside alliance,the BNP and the UKIP.I don't think we're better off,I think the size and diversity of our country disguises that we're heading in the same direction.

Brock said at November 1, 2004 1:10 PM:

Luke -

Justice Taney's Dred Scott was an interesting decision, and one I can see Scalia admiring, though not for the reasons you might imagine. Justice Taney knew 160 years ago what the Warren Court forgot: the Supreme Court cannot force social change. Taney knew that if he found slavery unconstitutional and simply outlawed it, the Southern States would ignore him or Civil War would erupt before the North rallied to a political consensus.

Justice Taney was well aware of the limitations of the Supreme Court's power to resolve political differences. So is Scalia.

Justice Taney was also not disposed to making up new rights whole cloth, and preferred to let the politcal process decide what rights would be recognized and enforces. Scalia shares the same habit.

These are not bad things. When the Justices just make crap up, their power as neutral arbiter is lost.

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