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FEATURE:
The Supreme Court
November 3, 2000 Episode no. 410
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BOB
ABERNETHY: One of the greatest powers a president has
is appointing new justices to the Supreme Court. In the next
few years, the Court is expected to rule on a variety of closely-disputed
and controversial issues, many of them of special interest
to religious communities: school prayer, for instance, and
other church-state questions. We asked Tim O'Brien to look
ahead at Gore, Bush, and the Court.
 TIM
O'BRIEN: Al Gore isn't the only one making this prediction.
Gore: The next president is going to appoint three, maybe
even four, Justices of the Supreme Court.
Which must come as interesting news to the Court's current
justices, all of whom appear to be in reasonably decent shape,
none of whom appears to be in any hurry to go.
The history of Supreme Court nominations cuts two ways. While
it is risky to predict how many appointments any president
might get, it is a fair bet whoever wins the election will
get at least one. With the single exception of Jimmy Carter,
every president who has served a full four year term has eventually
had at least one appointment to the Court.
And many a president's greatest legacy has been in his Supreme
Court appointments. A single appointment can, over the lifetime
of the appointed, make a huge difference in the development
of the law.
 Defeated
nominee Robert Bork (left) has written that had he been confirmed
to the Supreme Court rather than the somewhat less ideological
Anthony Kennedy, he would have voted to overrule Roe v. Wade,
that he would have allowed some organized prayer in public
schools, and put burning the American flag beyond the protection
of the First Amendment.
Because the Court was divided 5-4, the opposite way on each
of these questions, with Kennedy in the majority, a "Justice
Bork" would likely have carried the day. The Bork-Kennedy
difference may continue to be felt in unforeseeable areas
of the law for the indefinite future.
"Roe versus Wade," the decision announcing a constitutional
right to abortion has become an issue in the current election
even though that decision is among the least likely to be
overruled. To do it, George Bush would need to replace at
least two justices who support the decision with justices
[who are] opposed.
But a single new appointment could turn the Court around on
a host of other explosive issues on which the Court remains
sharply divided -- like separation of church and state.
 Bush
says he would try to appoint justices like Antonin Scalia
(right) and Clarence Thomas, who favor greater government
accommodation of religion, including financial aid to religious
schools.
Gore's model justices, Thurgood Marshall and William Brennan,
had demanded the strictest separation of church and state.
The views of the individual justices have ranged from one
extreme to the other.
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Chief Justice William Rehnquist has characterized the so-called
"wall" separating church and state as "a useless metaphor,"
insisting all the Constitution forbids is the government establishing
an official religion.
But for almost thirty years, the Court has prohibited any
government activity that:
- has a religious purpose
- has the primary effect of advancing or inhibiting
religion
- results in excessive government entanglement
with religion
That test has been difficult to apply, particularly when
cities sponsor Nativity scenes at Christmas time or menorahs
during Hanukkah or when religious groups seek the same
access to school facilities that non-religious groups have.
Despite its longevity, most of the current justices don't
like the current test for evaluating church-state issues.
Justice Scalia has compared it to "... some ghoul in a late
night horror movie that repeatedly sits up in its grave and
shuffles abroad ... frightening little children and school
board lawyers. ..."
But the justices have been unable to agree on any new test.
Should that change with a couple of new justices, a revolution
in church-state relations could follow.
A single appointment could turn the Court around on other
issues as well -- like affirmative action.
George Bush is against it:
Bush: It's not the way America is all about.
Al Gore says some affirmative action can be beneficial. The
issue has divided the Court 5-4.
 To
Gore, and others, the integrity of the political system is
also on the line this Tuesday:
Gore: And one of the things I've learned is the need for strong
campaign finance reform.
Governor Bush says he also favors some campaign finance reform,
but his appointments to the Court -- if they're like Scalia
and Thomas -- would be much more likely to reject most current
proposals as a violation of free speech.
The impact a president can have on the Court is also a function
of luck. Although Franklin Roosevelt did not get any appointments
in his first term, he ended up naming eight justices to the
Court and elevating a ninth to be Chief Justice. Seven of
Roosevelt's eight appointments came within a four-year
span.
Of course, justices don't always fulfill the expectations
of the presidents who appoint them. From 1968 through 1992,
four Republican presidents, each fiercely critical of the
liberal criminal law decisions of the earlier Warren Court,
failed to get a single one of those landmark decisions overruled
-- notwithstanding nine consecutive appointments to the Court.
No one can predict how many appointments the next president
might get or gauge the impact those appointments might
have. But with the Court so evenly split on so many high profile
issues, a single new appointment could have a powerful impact
on several aspects of our lives.
For RELIGION AND ETHICS NEWSWEEKLY, I'm Tim O'Brien in Washington.
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