Shift Right

In this LA Times editorial, VCer Orin Kerr explains why he thinks O'Connor's retirement won't be the seismic shift in Court politics that everyone expects. He gives four reasons why:

Kennedy remains a key swing vote; O'Connor's replacement may not be very different from O'Connor; Rehnquist may resign, taking away a solid conservative vote that may roughly cancel out the impact of O'Connor's lost moderate vote; and respect for precedent will keep the Court from overruling most of the cases for which O'Connor provided the swing vote in the past.

Respectfully, I disagree. Let's take them one by one.

1) Yes, Kennedy is a swing vote. But recall that both Kennedy and O'Connor are moderate conservatives. There are 4 staunch liberals, 3 staunch conservatives, and 2 moderate conservatives. This makes for a nice balance--the liberals need to pick up only one swing vote, while the conservatives need two, but both swingers lean right. Taking O'Connor out of the equation would thus change the Court from it's 4-2-3 line up to a 4-1-4 line up. This means that the liberals only have one shot to grab a swing vote as opposed to two--furthermore, the "swing vote" already leans against them. Since O'Connor and Kennedy were moderate on different cases (for example, Kennedy was more likely to vote with liberals on gay rights, O'Connor on abortion), there are significant classes of cases in which liberals will be out in the cold. So while they'll still manage to pull together a majority in some cases, there will be a lot more which they lose because they can't pull Kennedy over (when they could have gotten O'Connor).

2) This is wishful thinking. As The VC's own Todd Zywicki notes, most conservatives feel there is going to be a fight regardless, so it might as well be someone worth fighting for. The folks with the most at stake in this fight, I.E., the Christian Right, have already made it quite clear they do not expect Bush to nominate an O'Connor-esque justice. Between the two, I think it's fair to assume O'Connor's replacement will be far more conservative (and less pragmatic) than she was.

3) If Rehnquist resigns, he'll be replaced by a conservative. Even if the right was inclined to allow a consensus candidate through on O'Connor (and I doubt it, see above), they'd never countenance it for Rehnquist. His retirement is unlikely to shift the Court's alignment in any meaningful way.

4) This reason is probably true, but limited. Many of the critical issues coming before the Court are not one's with tightly bound precedents. Gay rights, for example, is just beginning to come to the fore. So while I don't anticipate Lawrence being overturned, perhaps the next gay rights case won't be quite such a victory. War on terror cases pose similar problems. If there is one thing we've learned from the Rehnquist court, it's that you can slowly change the overall direction of America's legal jurisprudence without overturning a lot of decisions. Slowly but steadily, the Court can modify, revise, and distinguish its way to a more conservative worldview. Just ask liberals who feel Lopez and Morrison drastically shifted our ISC jurisprudence--while ostensibly not touching a prior case.

So, while it was nice buying into the fantasy for a little while, I don't anticipate Kerr's prediction coming true. Change is in the air--and I'm not sure it's to my liking.

UPDATE: Daniel Solove is even more pessimistic than I am--he doesn't think Stare Decisis is going to be much of a restraining factor.