Eminent Domain

With the first term of the Roberts Court in the books, the Court watchers and editorial page goons are all giving their appraisals of the last nine months of Con law action. The New York Times editorial page weighs in here.

The star of this piece is Justice Anthony Kennedy...

With Chief Justice Roberts and Justices Alito, Scalia and Thomas forming one bloc, and the four most liberal justices forming another, Justice Kennedy had the power to make either camp's opinion the majority on a striking number of cases.

Of all the people to have deciding the major cases, we end up with the guy who's concerned about his image. That gives me such great comfort.

The piece then goes on to detail Justice Kennedy's pendulum act that he calls jurisprudence. The last paragraph is the most interesting part, though...

The court's current centrism is fragile. Justice Stevens recently turned 86, and he or another justice could leave in the next two years, giving President Bush an opportunity to fill the vacancy. If the court's strongly conservative bloc gained a fifth vote, American law would likely look very different from the court's decisions this term and from its rulings over the last 50 years on issues like abortion, the environment and civil rights.

This is the Times' editorial board on their hands and knees, pleading with Stevens, Souter, Ginsburg, Breyer, and Kennedy to not retire. "Please, wait until the next election. We'll nominate someone with more personality than a sheet of drywall next time." If a retirement is coming this summer, it will probably be soon (end of July at the latest). There is also the chance of an unexpected death, especially with the ages and ailments involved with some of the Justices. There are so many unknowns in this equation that it's impossible to make a good prediction about what will happen. But I have some ideas...

If there is another retirement pre-2008, one of two things will happen. 1. Bush will royally screw it up, nominating someone without a strong paper trail (Harriet Miers). This will give us at best another Kennedy, at worst another Souter. 2. Bush will go the Roberts-Alito route, knock it out of the park, and the Court will be solidly conservative for a decade.

If the next retirement is post-2008 and a Republican wins the election, then it matters who the winning Republican is. Republican presidents have been pretty good on judges, in my opinion. That's why I vote for them. I'd expect a president who would nominate wisely. However, the two options above may also apply.

If the next retirement is post-2008 and a Democrat wins election, then the struggle will continue. The conservative wing is relatively young and healthy, so the Democrat would probably be replacing the more liberal Justices with younger versions of themselves. I'll be eager to see how hard the Senate Republicans would fight these nominees.

The next retirement will be incredibly important. It will likely determine the direction of the Court for at least a decade, possibly more.