De-Politicizing the Supreme Court

Before everyone on both sides of the political fence starts gearing up for potential fights over judicial appointments, it might be useful to remember that the political stakes are really not as high as people might think. I'd like to make a pitch that the political line-up of the Court is almost always less important than the intellectual and moral caliber of the individual justices, but to prove that, I first have to give a run-down on the political composition of the current Supreme Court, just to show that it is not going to change that much no matter whom President Obama appoints to fill the upcoming vacancy created by Justice Souter's announced retirement.



The current Supreme Court must be seen as a fairly conservative bunch, though less conservative than the most ardent conservatives would wish. It consists of seven Republicans and two Democrats, although this is a bit misleading, since two of the Republicans, Stevens and Souter, have always been fairly moderate and are generally lumped together with the two Democrats to comprise the "liberal wing" of the Court. There are four fairly consistent conservatives, and one Justice, Anthony Kennedy, who sometimes sides with the liberals. President Obama may have the opportunity to appoint as many as three Supreme Court justices in the next several years, but the justices who are most likely to be replaced in addition to Souter, namely Stevens and Ginsburg, are all members of the "liberal" wing. Even if Obama appoints a flaming, card-carrying radical liberal to replace one or more of these fairly liberal justices, he cannot change the ideological balance of the Court very dramatically, although having a justice more in the spirit of Douglas or Marshall or Brennan might pull the entire Court a bit to the left. The only opportunity for President Obama to change the political balance of the Supreme Court significantly would occur if either Kennedy, or one of the four reliably conservative justices (Scalia, Thomas, Roberts, Alito) were to retire.

So in the meantime, it would be a refreshing change if people were to focus more on the achievements, abilities, and the character of the appointee for the Souter seat, than on his or her political inclinations or such superficial characteristics as ethnicity or gender.