Orin Kerr on the Impact of Justice O’Connor’s Retirement

In today’s LA Times, my colleague Orin Kerr (law, GW) surmises that Justice O’Connor’s retirement will not have as dramatic an impact on the Supreme Court as many might believe. One of his arguments is that Justices Kennedy and O’Connor are both swing votes, so O’Connor’s retirement just eliminates one swing vote. Another argument is that the Court will respect stare decisis:

. . . [T]he legal principle of stare decisis will limit the changes. By institutional tradition, the Supreme Court overturns prior decisions only rarely. The justices routinely decline to overrule old cases even if they would have reached a different result the first time.

In other words, once a case is decided, it tends to stick around. This practice helps explain why most of the major decisions of the liberal Warren Court from the 1960s remain on the books today. It also suggests that most of the decisions shaped by O'Connor will remain the law in the future.

He concludes, in a blog post on the same topic, that “the stakes for the battle to replace O'Connor are somewhat lower than many people assume.”

As always, Kerr is interesting and thoughtful, but I think he overlooks a few points. First, the impact of a Supreme Court Justice is not just in her votes, but in how she might influence decisions behind the scenes. I don’t have the inside scoop on what effect Justice O’Connor had, but my guess is that she helped moderate decisions, narrow them, and build compromise positions. Even when not overtly doing so, the need to procure O’Connor’s vote must have influenced some justices in crafting majority opinions.

Regarding precedent, Kerr is right that stare decisis will limit how much of a radical shift one appointment can make, but we are not too far away from an "activist" conservative Supreme Court. (I use the term "activist" to mean a Court more inclined to depart from settled precedent. I have many problems with the way that the term "activist" is generally used, but I want to avoid getting into that debate now.) Not all justices respect precedent equally. The most activist is Justice Scalia who has these thoughts on precedent in his dissent in South Carolina v. Gathers, 490 U.S. 95 (1989), where he called for overturning Booth v. Maryland, 482 U.S. 496 (1987):

"It has been argued that we should not overrule so recent a decision, lest our action 'appear to be . . . occasioned by nothing more than a change in the Court's personnel,' and the rules we announce no more than 'opinions of a small group of men who temporarily occupy high office.' I doubt that overruling Booth will so shake the citizenry's faith in the Court. Overrulings of precedent rarely occur without a change in the Court's personnel. The only distinctive feature here is that the overruling would follow not long after the original decision.

. . . Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it . . .

. . . In any case, I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face. . . I agree with Justice Douglas: 'A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it." Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).

If President Bush appoints a justice in the mold of Justice Scalia, Justice O’Connor’s retirement will lead to a Court that is not only more conservative, but more activist as well.