The long-term impact of the presidential race on the U.S. Supreme Court was almost ignored until last week in the constant, unending media analyses of the contenders for the Republican and Democratic nominations.
The influence of the court since it was established in 1790 has been enormous. And it is the president, when vacancies on the court occur, who can control the philosophical bent of the court with the nominations he makes to fill those vacancies. These are subject only to approval by the Senate.
The next president is likely to have two or three opportunities to name new justices, including a new chief justice. The incumbent chief, William H. Rehnquist, is 75 and has been on the bench for 28 years. A Nixon appointee to the court who was advanced to chief justice 14 years ago by President Ronald Reagan, Rehnquist is a consistent conservative member of the court.
Three other members who may retire in the next four or eight years are John P. Stevens, 79; Sandra Day O'Connor, 69; and Ruth Ginsburg, 67, who recently recovered from cancer surgery. Ginsburg is the only one of the three appointed by a Democrat, President Clinton.
The other justices range in age from 52 to 63 and are less likely to leave the bench during the term of the next president. Since the court was established, justices have served an average of 15 years, and a new justice joins the court every 22 months. The longevity records for service go to Justice William O. Douglas, who was on the court for 36 years and six months, and Justice Hugo Black, who served for 34 years.
The current court has been fairly evenly divided in its opinions, with many being decided by one vote. A narrow conservative majority has, for the most part, dominated in most other decisions. Given these existing factors, the next president will be making very meaningful decisions in his nominations for the court.
The Supreme Court has enormous power, with the authority to review decisions of the highest state courts and of the lower federal courts. It has the authority to invalidate legislative or executive actions that it determines are in conflict with the Constitution. When the Supreme Court rules on a constitutional issue, its decision can only be altered by a constitutional amendment or by a changed ruling of the court itself some time down the line. When the court interprets a statute, Congress can pass new legislation to counteract the court ruling.
One of the court's powers is its decisions on which cases it decides to review. More than 6,500 civil and criminal cases are filed in the court each year and it confines its judicial review to a relatively small percentage of these. The effect is to let stand the rulings of the lower courts.
Those aspiring to the presidency are careful in their responses about what their policy would be on Supreme Court appointments. For example, the two leading Republican aspirants, George W. Bush Jr. and John McCain, both say they would not apply an abortion "litmus test" for their nominees. However, Bush has said he favors a constitutional amendment banning abortion and McCain's 17-year voting record has consistently been anti-abortion. Both men would be most unlikely to nominate anyone who would take a pro-choice stance.
The two chief contenders for the Democratic nomination for president, Vice President Gore and Bill Bradley, are outspokenly pro-choice and there's no doubt that would be reflected in their choice of nominees.
There are, of course, many other issues that come before the court. Most are less controversial than abortion but still affect great numbers of people and institutions. The justices are powerful men and women. The Supreme Court in 1973 made the Roe vs. Wade ruling on abortion. In 1954, the court made the historic Brown vs. Board of Education ruling on school desegregation. And in 1937, it was the Supreme Court that validated the National Labor Relations Act and the Social Security Act.
Voters should not forget that it is the president who selects the jurists to fill the court vacancies.
MURRAY B. LIGHT is the former editor of The Buffalo News.