Reshaping the Supreme Court

U.S. Supreme Court Chief Justice William Rehnquist’s death on Saturday left another key opening on the court and Bush wasted no time announcing his nominee, appeals court judge John Roberts.

Rehnquist was a conservative, so it’s not as though Bush is replacing a liberal with a conservative. Still, by some accounts, Roberts is much less moderate than Rehnquist was, and his confirmation could spell the end of an era in U.S. judicial policies:

Everything known about Roberts suggests he would join with the most conservative justices to change the law in a conservative direction. As deputy U.S. solicitor general, Roberts coauthored briefs expressly urging the court to overrule Roe vs. Wade. As an attorney in the Justice Department, Roberts drafted an article arguing that there is no constitutional protection for privacy.

Other opinions are less doomsday-ish:

Roberts is not Scalia or Thomas. He is not a right-wing judicial activist eager to chisel away the liberal expansion of the Constitution in recent decades in order to restore some halcyon original intent on the part of the Constitution’s authors.

That’s a bit too chaotic for Roberts, who seems to revere the law’s ability to provide society with a sense of order and predictability. The most-parsed statement by Roberts came in his 2003 confirmation hearing to serve on the U.S. Court of Appeals for the District of Columbia Circuit, when he said that the 1973 Roe vs. Wade ruling establishing a constitutional right to an abortion based on the right to privacy is “the settled law of the land.” Critics say he will think it’s less settled when he is in a position to overturn it, but that seems implausible. In fact, send me a self-addressed envelope within a week and I will mail you $1 (and pay for postage) if Justice Roberts votes to overturn Roe.

All of that is speculation at this point. All we really know is that Bush is stacking the court with two more staunch conservatives, and that certain hard-won rights and liberties may – may be in jeopardy. Depending on what side of the aisle you’re on, I guess this is either a golden opportunity or the greatest catastrophe imaginable.

Even the so-called safeguard of confirmation hearings that exists in the U.S. and not here in Canada (and is often advocated in Canada to avoid political appointees here) can’t curb the power of a President to pick political appointees when his party also has a Senate majority. Here’s hoping that Roberts is a lot more moderate than he seems, because a Chief Justice will continue to influence a country long after any given president is long out of office and busily engaged in book tours.