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Justice O'Connor Retiring
rlbond86 writes "The New York Times reports that Supreme Court Justice Sandra Day O'Connor will be retiring. Justice O'Connor, the first woman to become a Supreme Court justice, is considered by many the crucial 'swing vote' on many issues. How will this affect Supreme Court decisions in the future?" From the article: "Her departure, which had been the subject of rumors for weeks but was still a surprise, will give President Bush his first opportunity to name a justice to the Supreme Court. It is still not clear whether Chief Justice William H. Rehnquist, who is battling thyroid cancer and had been widely expected to resign, will step down this summer, giving Mr. Bush another seat to fill."
http://www.lucidcafe.com/library/96mar/oconnor.htm l
Thanks to SCOTUS Blog's sister site Supreme Court Nomination Blog for the following info.
Relevant post from which this is taken
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Which Important Precedents are Likely to Be in Jeopardy?
Jurisprudential Effects | Posted by Marty Lederman at 01:23 PM
These are among the cases in which Justice O'Connor's has been the decisive vote or opinion, and in which a more conservative Justice might well vote to overrule the governing precedent. (Post in progress. Please suggest additional cases.)
Note: Because most Justices consider stare decisis a more serious obstacle in cases of statutory construction, those cases (e.g., the Davis and Jackson Title IX decisions) might be more secure, even if Justice O'Connor's replacement would not have agreed with her as a matter of first impression.
McCreary County v. ACLU (2005) -- Ten Commandments displays
Jackson v. Birmingham Board of Educ. (2005) -- Title IX Liability for Retaliation
Rompilla v. Beard (2005) -- standard of reasonable competence that Sixth Amendment requires on the part of defense counsel
Johanns v. Livestock Marketing (2005) -- assessments for government speech
Smith v. Massachusetts (2005) -- double jeopardy
Small v. United States (2005) - felon firearm possession ban doesn't cover foreign convictions
Tennessee v. Lane (2004) -- Congress's Section 5 power
Hibbs v. Winn (2004) -- Tax Injunction Act
Alaska Department of Environmental Conservation v. EPA (2004) -- EPA authority under Clean Air Act to issue orders when a state conservation agency fails to act
McConnell v. FEC (2004) -- campaign finance
Groh v. Ramirez (2004) -- sufficiency of non-particularized search warrant
Grutter v. Bollinger (2003) -- affirmative action
Brown v. Legal Foundation of Washington (2003) -- no takings violation in IOLTA funding scheme
American Insurance Ass'n v. Garamendi (2003) -- presidential foreign-affairs "pre-emption" of state law
Stogner v. California (2003) -- ex post facto clause as applied to changes in statutes of limitations
Alabama v. Shelton (2002) -- right to counsel
Rush Prudential HMO v. Moran (2002) -- upholding state laws giving patients the right to second doctor's opinion over HMOs' objections
Kelly v. South Carolina (2002) -- capital defendant's due process right to inform jury of his parole ineligibility
FEC v. Colorado Republican Federal Campaign Committee (2001) -- upholding limits on "coordinated" political party expenditures
Zadvydas v. Davis (2001) -- prohibiting indefinite detention of immigrants under final orders of removal where no other country will accept them
Easley v. Cromartie (2001) -- race-based redistricting
Rogers v. Tennessee (2001) -- "judicial" ex post facto
Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) -- state action
Stenberg v. Carhart (2000) -- "partial-birth abortion" ban
Mitchell v. Helms (1999) -- direct aid to religious schools
Davis v. Monroe County Board of Educ. (1999) -- recognizing school district liability under Title IX for student-on-student sexual harrassment
Schenck v. Pro-Choice Network (1997) -- injunctions against abortion-clinic protestors
Richardson v. McKnight (1997) -- private prison guards not entitled to qualified immunity in section 1983 suits
Morse v. Republican Party of Virginia (1996) -- provisions of the Voting Rights Act are constitutional as applied to choice of candidates at party political conventions
O'Conner's retirement is actually much more important than if Rehnquist had retired; on a pretty wide array of social policies, i.e. abortion and affirmative action, O'Conner has been the swing vote in the 5-4 decisions. Rehnquist, on the other hand, tends to vote conserative, period. Slashdotters might be pleased to know she was a key vote in the challenge to the President to arbitrarily detain individuals w/out review:
"It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested," she wrote last year for the court in the Iraq-war era case of Hamdi v. Rumsfeld. "And it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . . We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." ~ taken from the Washington Post article today.
There are pretty much two options for Bush to play this:
1) He tries to appeal to the Hispanic vote, key for his party in upcoming elections, by nominating Alberto Gonzalez. Problem is, the Christian Right, would be pretty pissed about this, since they think he'll vote to keep Roe v. Wade and affirmative action. Just a reminder though, this is the same guy who authored the infamous legal documents saying we don't need to treat prisoners from Afghanistan under the Geneva Conventions, and wanted to redefine torture more loosely.
2) He tries to please his core-base, the social conservatives, by nominating someone likely to overturn Roe v. Wade, and affirmative action. This'll set off a firestorm on the right AND left.
Option 1 would be the far more moderate choice, and less likely to create a protracted battle in the Senate, which SEEMS to be what he was hinting at he wants when he said in his speech that he wanted a "dignified" nomination process - of course this could just be posturing.
Another interesting tidbit will be to see how the "Gang of 14" in the Senate, who avoided the filibuster showdown, will react if Bush goes with Option 2. No offense to the "Gang of 14," but I think that pressure from far right and left interest groups are gonna tear the agreement under asap. Especially since Frist hates the agreement, since it was pretty much a slap in the face to him when key Republicans went around him to get it done. I doubt he'll lift a finger to try and negotiate if Bush nominates a social conservative like Scalia or Thomas.
Just a few thoughts. The comings weeks will be fun to watch.
Well: the Supreme Court typically (and this is by no means always) tends to split into two seperate camps:
(1) The "progressives" or "liberals", who have tended to favour an "expansionist" interpretation of the constitution, and have typically been in favour of Roe vs Wade.
(2) The "conservatives" who typically are more "creationist" and who believe that "if it ain't in the constitution, we shouldn't try and add it."
Because many issues fall clearly into one of the two camps, and there are some justices that reliably support one side rather than the other (i.e. Stevens is as liberal as they come for example) the decision often depends on the "swing" justices.
Of course, there are issues that transcend this simple left/right analysis, and even within this there are sub-groupings: states rights are one area (Clarence Thomas is normally staunchly conservative but voted that California's pot laws should not be overturned ), and religion another. The recent Grokster case is also interesting, if only because of the dissenting opinions filed. (Which indicate that the decision might have been entirely different if just 10% of the traffic was for "legitimate" purposes.)
Anyway: this is all very interesting, and for anyone with an enquiring mind I highly recommend reading some of SCOTUS's rulings.
Thanks,
Robert
--- My dad's political betting
Do the justices reveal their deliberation process?
Yes.
The justices write majority and minority opinions based on whether they were on the "winning" or "losing" side of the argument. Typically one on each side will write the opinion and everyone else endorses it, although sometimes some justices will write their own opinion by themselves.
If I have been able to see further than others, it is because I bought a pair of binoculars.
O'Connor and the 5-4 decision
We've already noted the critical role Sandra Day O'Connor has played as a Supreme Court swing voter over the last 24 years. Here's more on that front -- People for the American Way's list and description of notable 5-4 Supreme Court decisions that could have gone the other way if a more conservative justice were sitting in O'Connor's seat:
-- Tim Grieve
WARNING: DO NOT LET DR. MARIO TOUCH YOUR GENITALS. HE IS NOT A REAL DOCTOR.
When I heard that she was going to be teaching a class at the University of Arizona (albeit, during the Supreme Court's winter recess in 2005-2006), I had a feeling that she might retire soon.
She's a republican, she's 75, her husband has Alzheimer's and she wants to spend time eith him. She probably thinks there's no better time to retire and let Bush put another Republican in her place.
Sig cancelled due to lack of interest
Funny you should bring that up, just the other day I was reading an op-ed piece in the Washington post about this very subject. It was an interesting read, check it out here.
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> > and most importantly it's been shown that Bush would have ultimately won any Florida recount anyway!
s tories/main.html
> That is a lie.
Tell CNN:
WASHINGTON (CNN) -- A comprehensive study of the 2000 presidential election in Florida suggests that if the U.S. Supreme Court had allowed a statewide vote recount to proceed, Republican candidate George W. Bush would still have been elected president.
http://www.cnn.com/SPECIALS/2001/florida.ballots/
All movements for social change begin as missions, evolve into businesses, and end up as rackets.