A Scalia or Ginsburg Court?: Voters Hold the Key.

• Author: BRESLER, ROBERT J.
• Position: Appointment of conservative or liberal judges depends on outcome of presidential election - Brief Article

WHATEVER THE RESULTS of the coming election, the President and Congress will probably try to steer away from controversial social issues. By contrast, the Supreme Court seems unable or unwilling to avoid them. Since the era of the Warren Court, the Supreme Court has been at the center of some of our most explosive public policy issues, such as racial and gender preferences, prayers in school, aid to religious schools, partial-birth abortion, and single-sex education.

The Court is closely divided on these as well as the emerging issue of federalism and states' rights. Much speculation has been directed at the possibility that the three senior members--Chief Justice William H. Rehnquist (age 75) and Associate Justices John Paul Stevens (80) and Sandra Day O'Connor (70)--could retire during the next administration. Their successors could determine the future of American constitutional law for decades to come.

The current justices often break down into three factions: Rehnquist, Antonin Scalia, and Clarence Thomas constitute the conservative group; O'Connor and Anthony Kennedy make up the moderate swing votes; and Stevens, David Souter, Ruth Bader Ginsburg, and Steven Breyer represent the liberal wing. In last June's decisions on gay scoutmasters (Boy Scouts of America v. Dale) and partial-birth abortion (Stenberg v. Carhart), the Court split 5-4. In the former decision, the Court upheld the Boy Scouts' right to exclude gays from their organization, and in Stenberg, they overturned Nebraska's law prohibiting partial-birth abortions. In the Scout case, the two swing justices joined with the conservatives; in the abortion decision, they sided with the liberals.

Should George W. Bush be elected and make the next appointments, particularly with a Republican Senate, the swing group would lose its influence, opening the way for a sharp departure from current constitutional interpretation. When Pres. Ronald Reagan elevated Rehnquist to Chief Justice and appointed Scalia as Associate Justice in 1986 (two strong conservatives), the Republicans controlled the Senate. In 1987, after the Democrats recaptured the Senate, Reagan was unable to get the conservative Robert Bork confirmed and had to settle for Kennedy, a far more moderate candidate. In 1990, with the Democrats in control of the Senate, Pres. George Bush nominated Souter, whom he thought was a closet conservative, but turned out to be a closet liberal. In 1991, Bush just barely got Thomas...