Court changes, 2005 to 2009

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2005: Justice Sandra Day O'Connor's resignation:

On 2005-JUL-01, Justice Sandra Day O'Connor, 75, announced her resignation from the U.S. Supreme Court. This produced the first vacancy on the court in 11 years. She had been viewed as moderately conservative, and a swing vote

	The People for the American Way -- a liberal agency -- states that: "With Justice O'Connor providing the swing vote on critical 5-4 decisions regarding privacy, reproductive rights, affirmative action, government neutrality toward religion, and more, we cannot overstate the profound impact her replacement could have on the direction of American law and society." 1
	Chairman James C. Dobson, founder of Focus on the Family Action -- a Fundamentalist Christian group -- described Justice O'Connor's resignation as "a watershed moment in American history: the resignation of a swing-vote justice on the Supreme Court and the opportunity to change the Court's direction." 2
	Another Fundamentalist Christian group, the Family Research Council cites Justice O'Connor as providing the deciding vote on many 5-4 decisions during the last few years such as:   Lawrence v. Texas, a ruling which decriminalized consensual adult sexual activity by both same-sex and opposite-sex couples in private.   The ruling declaring that the federal "Partial Birth Abortion" was unconstitutional because it did not have an exclusion clause protecting women in the event that no abortion would cause a catastrophic disability.   McCreary County v. ACLU of Kentucky which determined that a specific religious display including the Ten Commandments cannot be shown in county courthouses because of the constitution's principle of separation of church and state. 3
	Mark Wexler of the Foundation for Autistic Childhood Education and Support wrote: "During her 24 years on the nation's highest court, her reasoning and findings evolved to shape the look of today's court. She accomplished this by finding the ever-so-unpopular middle ground and standing against extremes. Simply put, O'Connor shielded the court - and our country - from unyielding ideologies." 7

President Bush decided to nominate Judge Roberts, a strict constructionist, apparently from a desire to drive the court in the conservative direction for many decades into the future. ₁₁ Bush said the nominee "...has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and personal decency." According to an unnamed administration official, Bush interviewed Roberts on 2005-JUL-15, made  his final decision on JUL-19, and phoned Roberts about 12:30 PM to offer him the appointment. ₁₂

Following Roberts' nomination, but before his confirmation by the Senate, Chief Justice William Rehnquist died. President Bush then nominated Roberts to be the new Chief Justice.

The 2005-APR filibuster controversy in the Senate over the confirmation of lower court justices was not repeated. Judge Roberts' nomination was easily confirmed by the Senate by a vote of 77 to 22. He was installed as the 17th Chief Justice of the U.S. Supreme Court on 2005-OCT-03, in time for the Fall sitting.

President Bush nominated Harriet Miers, also on OCT-03, to be Justice O'Connor's replacement. Little is initially known about her political philosophy, because she had never been a judge and thus has never issued a court ruling. Massive opposition from social and religious conservatives caused Miers to withdraw.

2005: Chief Justice William H. Rehnquist's death:

Chief Justice Rehnquist had been suffering from thyroid cancer when his health went into a drastic decline in late August, 2005. He died at home in suburban Virginia during the evening of 2005-SEP-03 with his family present.

Rehnquist had consistently voted with the conservative block on the Supreme Court which included Justices Scalia and Thomas. He was one of the five conservative Justices nominated by Republican Presidents who voted to terminate recount of the election results in Florida during the 2000 election, thus making George W. Bush president. He was one of the two conservative justices who voted against Roe v. Wade, the decision that provided abortion access for all American women early in their pregnancies.

Judge Samuel Alito replaced Chief Justice Rehnquist. He is expected to have minimal impact on the balance of the Supreme Court, because it is difficult to conceive of a replacement justice who would be more consistently conservative than Rehnquist.

2009: Justice David Souter announced his resignation:

During 2009-APR, Justice David Souter, a moderate to liberal judge on the court,  announced his intention to retire. He had been appointed by President George H.W. Bush in 1990 in the expectation that he would prove to be a conservative. He surprised many observers by turning out to be a relative liberal justice. This shift from conservative to liberal is a fairly common transition for Supreme Court justices. As long as they are working at the Courts of Appeal level, they have to follow the Supreme Court's precedents. However, once on the Supreme Court, they can make precedents of their own.

This resignation gave President Obama his first opportunity to nominate a justice to the Supreme Court and -- probably -- attempt to drive the court in a more liberal direction. He selected Judge Sonia Sotomayor as his replacement. If her nomination is confirmed, she would become the Court's 111th justice in its two century history. She would be the first Hispanic justice and the third woman to serve on the court.

Current status:

As of 2009-JUL, four justices of the Supreme Court -- Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia, & Clarence Thomas appear to follow a strict reconstructionist judicial philosophy. They tend to vote as a conservative block on ethical and moral matters. All were appointed by Republican presidents.

The block of four conservatives is counterbalanced with a group of five moderates to liberals.

If affirmed, Sonia Sotomayor is a bit of an unknown. There are some suggestions that she may prove to be a liberal justice:

	She said during her confirmation hearings that she regards Roe v. Wade as "settled precedent,"
	She said that the court has found a personal guaranteed right to privacy implied in several sections of the U.S. Constitution.

There is a significant possibility that Roe v. Wade will be challenged during Obama's first term in an attempt to allow individual states to decide whether to criminalize abortion. A lawsuit seeking the legalization of same-sex marriages and challenging the constitutionality of various defense of marriage acts (DOMA) may make it to the Supreme Court early in the 2010s. Both could have a profound effect on American culture.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Just Announced: O'CONNOR STEPS DOWN!," People for the American Way, 2005-JUL-01
2. Pete Winn, "Justice O'Connor Retires; Battle over Swing-Vote Lies Ahead," CitizenLink, Focus on the Famlly, 2005-JUL-01, at: http://www.family.org/
3. "Encourage President Bush to name a CONSERVATIVE Justice," Take Action Alert, Family Research Council, 2005-JUL-05.
4. Tim Harper, "Battle brews over Bus court nominee," The Toronto Star, 2005-JUL-20, Page A1 (front page.) Online at: http://www.thestar.com/
5. "Bush nominates Roberts to Supreme Court. Republicans praise nominee as Dems vow thorough review," CNN News, 2005-JUL-20, at: http://www.cnn.com/
6. Antonin Scalaia, "God's Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
7. Mark Wexler, "Supreme discontent," Sojourners, 2005-SEP-08, at: http://www.sojo.net/

Copyright © 2003 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-16
Author: B.A. Robinson