The Court Is Safe
by Ryan Coates
Issue 128 - March 25, 2009

As 2009 looms large and Chief Justice John G. Roberts Jr. continues his fourth term as head of the judicial branch it has become clear that he leads a more conservative court than that of Rehnquist's. Roberts is aided and abetted by Associate Justice Samuel A. Alito Jr. Both Bush appointees, the conservative justices hold a clear majority, clearly worrying liberal politicians and lawyers.

With a left wing politician gaining the Oval Office, backed by a Congress controlled by Democrats, the Supreme Court is now seen by conservatives as the great defender against the possibility of radical, liberal policies made by the executive and legislative branches of the US. Rather like in the 1930s, Democrats could see a repeat of history, with the Supreme Court standing resolutely in the way of a probable liberal resurgence. President Bush has built a basis of conservatism on the court, with thirty year tenures not out of the question for his two appointees. With Alito aged just 58 and Chief Justice Roberts only 53, they should be capable of holding order in the court with conservative court chiefs, Antonin Scalia and Clarence Thomas.

Could Obama make a desperate attempt to 'pack' the Court as Roosevelt did? Or might he persuade the retirement of liberal justices? Either way it should prove difficult for Obama to attempt to gain control of the court. The liberal wing is considerably older than their conservative counterparts, certainly the 88 year old John Paul Stevens may look to retire during the first term of Obama's administration, but even if Obama appoints a staunch liberal, the balance of the court is unlikely to be altered.

It is odds on that the five conservative judges, Roberts, Scalia, Thomas, Alito and the more moderate Anthony Kennedy are capable of holding their seats until a Republican enters the White House. Unless one of them feels it is the time to go, these five conservative judges should last eight years with ease and even if they fail this, the Republicans may have already begun their resurgence, regaining control of the Senate, thus possessing the ability to deny any liberal Obama chooses to appoint.

Liberals have had the pleasure of controlling the court to an even greater extent than conservatives. The court headed by Republican appointee Earl Warren made several landmark and liberal decisions, despite the fact that both Eisenhower was President and the Senate was Republican, the judicial branch of the USA is supremely isolated and independent. Even when Nixon chose strict constructionist Warren Burger as Chief Justice, the court's decisions were largely unchanged and the liberal William Brennan still held a position of great influence.

The watershed arguably came with Reagan and his appointments of 1986, which saw the elevation of William Rehnquist to Chief Justice and the addition of Scalia to the court. All of a sudden the court had conservative power, which was further strengthened by the Reagan appointment of Kennedy and the Bush Sr. appointment of Thomas.