This is NOT the Big OneJustice O'Connor's retirement this week was huge news. But I am a little surprised by how far the media is pushing the idea of this being the trigger for a cataclysmic shift on the Court.
Sure, she was one of the two "swing votes" on the Court during much of her tenure, but there's one thing in particular about her 24 years that EVERYONE has missed: Privacy. And the fact that she seemed to be on the wrong side when it mattered most.
Most strikingly, there was
Bowers v. Hardwick (1986) and then there was
Lawrence et al. v. Texas (2003). In
Bowers, O'Connor was a part of the heinous 5-4 majority which held that the Court could never employ the Due Process clause of the 14th Amendment to recognize fundamental rights grounded in privacy -- such as the right to engage in private, consensual homosexual conduct.
Essentially, she signed on to allowing states to slap a "criminal" label on their gay citizens. And then when she had a chance to repent 17 years later in
Lawrence, she didn't. She did not back down from her 1986 position when writing her weak concurrence to the
Lawrence majority which magnificently overruled
Bowers. To be sure there was no ambiguity, she specifically pointed out right up front that "I joined Bowers, and do not join the Court in overruling it."
Though she felt the Texas sodomy statute should be invalidated on separate, less Earth-shattering Equal Protection grounds, she struck out on her own in
Lawrence because she still never came around on the more important privacy concern raised by the two cases. Instead, the key players in the 5-1-3
Lawrence decision were Justices Kennedy (the author of the five member majority opinion) and Stevens (a part of the five member majority and author of the earlier
Bowers dissent which Kennedy cited as being the correct analysis all along).
So there you have it. The five Justices who saved the day in
Lawrence are still on the Court as of this moment. Yes, things will be different when O'Connor is replaced with a more conservative jurist. But the
Lawrence block of five, as an example, could only be disrupted by the retirement of Stevens during these next few years.
Finally, it also seems like the media has totally lost sight of the fact that O'Connor was not the only swing vote. Kennedy was the swing vote on some gigantic occasions.
Lawrence was one. And let's not forget that little
Roe v. Wade controversy you may have heard of. Not once have I seen mention this week of the fact that it was Kennedy who provided the behind-the-scenes drama in 1992, making a last second defection that stopped the Court from overruling
Roe.
Frankly, I'm worried that the Democrats in the Senate are buying into the hysteria about the upcoming confirmation battle. I would hate to see them use up every ounce of fight contesting this replacement and then have nothing left for the potential Stevens replacement. I think it is politically impossible to stop President Bush from placing a hardcore conservative on the Court during his second term, assuming he gets multiple seats to fill. The country just will not stand for multiple Senate obstructions. And if we're only going to be able to forcefully "defend" one seat, we better plan on that being Stevens' seat.
To put this into the military speak of the day, I would suggest that there's a strong possibility that Bush has more than one SCUD missile in his arsenal and that we only have one defensive Patriot missile in the launcher. We have to be sure of when to fire it. Despite the attempt at optimism in my recent post, Stevens is 85 years old. Do we really want to bank on him staying on the Court another three and a half years?
If we successfully shoot down whoever the President trots out as his nominee in the next week or two, we may be left defenseless when faced with an even deadlier judicial SCUD attack following a Stevens retirement.
