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Florida's Fiasco Goes To The U.S. Supreme Court:
Lessons To Learn
 
11-28-00

Florida's Fiasco with its counting of presidential ballots and the U. S. Supreme Court's agreement to hear the election dispute petitioned to it (a surprise to some veteran Court watchers) reveal critically important voids in the knowledge of both the media and the public. Two facts are among the lessons about the courts that we still must learn:

One of the most profound impacts to be made by the next president, be it Bush or Gore, will be his impact on the federal judiciary. The composition of the Supreme Court is virtually certain to be significantly altered by the departure of some Justices during the next four years. The current Court membership is listed below in order of tenure, including the name of the appointing president and the date of appointment:

  • Rehnquist, William H.--Named Associate Justice by Nixon, 1972, elevated to Chief Justice by Reagan, 1986 
  • Stevens, John Paul--Named Associate Justice by Ford, 1975  
  • O'Connor, Sandra Day--Named Associate Justice by Reagan, 1981 
  • Scalia, Antonin--Named Associate Justice by Reagan, 1986  
  • Kennedy, Anthony--Named Associate Justice by Reagan, 1988  
  • Souter, David H.--Named Associate Justice by Bush, 1990  
  • Thomas, Clarence--Named Associate Justice by Bush, 1991 
  • Ginsburg, Ruth Bader--Named Associate Justice by Clinton, 1993  
  • Breyer, Stephen G.--Named Associate Justice by Clinton, 1994

    When the next president takes office in January (assuming that the Constitutional schedule is followed) 7 of these 9 Justices will be age 62 or older (Thomas will be only 52 and Souter 61). Because of the manner in which these Justices are distributed among the ideological wings of the Court (liberal/activist, "moderate," and conservative/restraintist) the likely departure of older Justices is even more significant. This raises the second fact which we are likely to learn now.

  • The predominance of Republican appointees on the High Court in no way guarantees a Court decision favorable to George W. Bush in the Florida election. An analysis of data for the last four Terms of the Court compiled by the National Law Journal reveals that the two Democrat appointees (Ginsburg and Breyer) are solidly in the Court's liberal/activist wing. But GOP appointees are scattered through every bloc of the Court, and the statistics reveal some surprises in the voting alignments calculated according to the frequency with which each Justice voted with other Justices: 
  • Liberal/Activst Bloc--Stevens, Souter, Ginsburg, and Breyer 
  • "Moderate Bloc"--O'Connor and Kennedy 
  • "Moderate" to Conservative/Restraintist--Rehnquist. A surprise? In the Court's 1997 and 1999 Terms, Rehnquist, O'Connor, and Kennedy voted with one another more often than with any other Justice; in the 1996 Term, Kennedy was one of Rehnquist's two most frequent voting partrners; and in the 1998 Term, Rehnquist was the most frequent voting partner of both O'Connor and Kennedy. 
  • Conservative/Restraintist Bloc--Scalia and Thomas
  • Perhaps the most predictable characteristic of the current Court is its unpredictability. But paradoxically, how this unpredictable body decides the Florida Fiasco may affect the Court itself more than anyone else.


     
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