The word, then, is no Supreme Court retirements expected this year. Pity. We could lose up to six justices -- say, the majority in the Lawrence vs. Texas sodomy case -- and feel indisposed for less than a week-long street dance, complete with door prizes and keg beer.
On the other hand, we'd have to be careful. The retirements of Sandra Day O'Connor, Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, and -- oh, endless bliss! -- David Souter might give us the wrong idea. We might suppose the high court was ready for some overdue straightening out: no more lofty legislating, no more attempts to impose on the country as a whole the viewpoints of liberal pressure groups. Six more justices in the estimable mold of Nino Scalia and Clarence Thomas, and ... and ... !
And nothing, would be my bet. That is because, pending the Second Coming, our nation seems incapable of dismantling government by judiciary, the sort of government under which we now labor.
The Republicans can't do it -- it's too hard. The Democrats don't want to -- they're having too much fun.
Consider first the Republicans. Of the six justices who rebuked Texas' ingrained preference for the heterosexual lifestyle, four were named to the high court by Republican presidents. A maxim of Supreme Court history is that justices change while on the bench; Republican appointees, following a tradition going back at least to Earl Warren, seem to waver more than most in their presumed commitment to popular government.
O'Connor and Kennedy were Ronald Reagan appointees; that didn't stop O'Connor last week from affirming affirmative action or both from disallowing state concern for traditional moral arrangements. If Souter, appointed by the first President Bush, ever had a conservative gene, it must at some point have been surgically removed. Stevens, a Gerald Ford appointee, may be the court's most liberal member. (A Nixon appointee, the late Harry Blackmun, formerly occupied that post.)
Are Republican judicial minds more porous than Democratic minds? Whatever the case, the presence on the bench of solid jurists like Scalia, Thomas and Chief Justice William Rehnquist reminds us that sometimes even Republicans get lucky.
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