Supreme Court

Supreme Court Sees First Major Changes in More Than a Decade

After years of speculation about possible nominees for positions on the U.S. Supreme Court that would likely become vacant, President George W. Bush in 2005 and 2006 appointed two new members, including a new chief justice. These appointments, which became necessary due to the retirement of Justice Sandra Day O'Connor and the death of Chief Justice William H. Rehnquist, left many questioning whether the Court would head in a new direction philosophically.

On July 1, 2005, O'Connor announced that she would step down after serving 24 years on the bench. Appointed by President Ronald Reagan in 1981 as the first woman justice, O'Connor had long been considered to be the key swing vote between conservative and liberal factions on the Court. Most significantly, she voted to uphold abortion rights in several key decisions in the 1990s and 2000s. She remained on the Court for part of the 2005–2006 term. O'Connor penned her final opinion in another abortion case, Ayotte v. Planned Parenthood of Northern New England, ____ U.S. ____, 126 S. Ct. 961, 163 L. Ed. 2d 812 (2006), where the Court unanimously invalidated a New Hampshire law requiring minors seeking abortions to notify their parents.

Almost two months after O'Connor's announcement, Rehnquist died at his home in Virginia. Rehnquist, who was 80 when he died, was the second oldest justice in history to lead the Court. Since assuming the position of chief justice in 1986, Rehnquist oversaw the Court's conservative shift. He also reduced the number of cases that the Court heard and demanded clearer and more strongly reasoned opinions. Rehnquist often aligned himself with Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas as part of the Court's conservative voting bloc.

After O'Connor's retirement announcement, about 10 names surfaced as possible replacements. Most of the potential nominees served as judges at federal appellate courts, with U.S. Attorney General Alberto Gonzales being the exception. The name that rose to the top of this list was John Roberts, a judge with the U.S. Court of Appeals for the D.C. Circuit. Roberts received his law degree from Harvard Law School in 1979. After clerking at a federal appeals court, he became a clerk for Rehnquist, who then served as an associate justice. He argued before the Supreme Court on numerous occasions, both as a deputy solicitor general and as a private practitioner.

Roberts became the leading candidate to become the new chief justice after Rehnquist's death. During confirmation hearings held in September, members of the Senate Judiciary Committee asked Roberts a number of questions about how he would vote on certain issues. He repeatedly declined, saying that he could not comment on potential issues or questions that might come before the Court. Although some Democrats complained that he did not answer their questions adequately, the Senate confirmed his nomination by a vote of 78 to 22. He was sworn in on September 29.

Naming O'Connor's replacement proved to be more challenging for Bush. Many commentators expected Bush to replace O'Connor with another female, possibly a minority woman. During the first week of October, Bush surprised many by announcing the nomination of presidential counsel Harriet Miers. The decision was reportedly based in large part to Miers' loyalty to the president, as well as to her conservative views. Although some officials nodded their approval informally, her nomination met significant resistance from others. Critics accused Bush of cronyism, while some Republicans said that they wanted assurances that the nominee would remain true to their conservative ideologies.

Many questioned Miers background for the position as a justice on the Court. She spent much of her career as a corporate lawyer, and critics doubted that she could perform nearly as well as Roberts during the public confirmation process. She also had no experience as a judge, and while this type of experience is not an absolute requirement, commentators noted that she would have difficulty answering some questions during the hearings. The last Supreme Court justice to be appointed without prior judicial experience was Lewis F. Powell Jr., who was appointed by President Richard Nixon in 1972.

In less than a month, Miers withdrew as a nominee. Members of the Senate said that they intended to request documents about Miers' service in the White House in order to ascertain her judicial philosophy. Miers cited these requests as part of her reasons for her withdrawal. "Repeatedly in the courts of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process," she wrote in her letter of withdrawal to Bush. "I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my conformation are in tension. I have decided that seeking my confirmation should yield."

Bush next turned to Samuel A. Alito Jr., who served as a judge with the U.S. Court of Appeals for the Third Circuit since 1990. A graduate of Yale Law School, Alito drew comparisons with Scalia, not only because both are Italian-American, but also because Alito has often voted conservatively in the past. Although analysis of opinions written by Scalia and Alito showed a number of differences in their judicial approaches, many liberals expressed concerns about the nomination's potential to shift the focus on the Court even further to the right.

Some Democrats threatened to filibuster Alito's nomination, due largely to objections to the judge's position on abortion. Many pro-choice advocates believed that Alito's appointment would signify the end to abortion rights under Roe v. Wade. Although the effort to filibuster the vote fell through, the final vote in the Senate was clearly partisan, with Alito receiving the confirmation by a vote of 58 to 42.

After Alito was sworn in, several Democrats said that Bush's nominations would haunt him in the November elections in 2006. The Court's three youngest members, including Roberts, Alito, and Thomas, are conservatives. The two oldest judges, Ruth Bader Ginsburg (72) and John Paul Stevens (85), are both liberals. Conservative groups applauded the appointments and said that they were historic victories for their causes.

Commentators noted that the appointments of two conservatives likely meant that Kennedy's vote would become the most crucial. In the past, the Court was generally viewed to have four liberals and three conservatives, with two swing votes of O'Connor and Kennedy. With Alito joining the Court, commentators expect that Kennedy will remain the only moderate member on the bench.