Monday began a new session for the U.S. Supreme Court — a session whose players represent an unmatched diversity in the history of the Court and a session that may include groundbreaking decisions about the war on terrorism.
The nine justices currently serving on the Court have been together since 1994. This is the longest period without the replacement of a justice since the 1820s. Stability and diversity have been two major issues in the history of the Court.
For the last eight years, the current Court has featured unprecedented diversity. Right now, the Court includes the only two women to ever have served as justices, and one of the only two non-white justices in history. The Court also widely varies in age, from Justice Clarence Thomas, 54, to Justice John Paul Stevens, 83.
It is unclear which justice might retire next and who will replace him or her; some speculate President Bush would appoint a Hispanic justice if a spot opened up.
“In the past, appointing justices has been more of a regional thing,” Gordon Baldwin, law professor emeritus of the University of Wisconsin said. “The president would say, ‘Well, we already have two justices from New York, we shouldn’t appoint another one from New York.’ But now it’s more racial or gender based.”
Baldwin said the task of filling a vacancy in the Supreme Court is a potential controversy the administration would like to avoid given current instability in the Legislature.
“The last thing the current administration wants is a vacancy in the Court,” Baldwin said. “They don’t even want to think about it, at least until the Senate settles down.”
The Court, as always, will have the chance to hear important issues in its new session, including cross- burning, affirmative action, sex-offender laws and campaign-finance reform.
“[Chief Justice William] Rehnquist runs a tight ship. He’s a great leader of the Court, and they’re efficient,” said Donald Downs, professor of law, political science and journalism and mass communications at UW.
Downs said the Court gets along and works well together, but the justices “are not afraid of going after each other on ideological issues.”
“There have been some pretty sharp exchanges in the past between [Antonin] Scalia and [Sandra Day] O’Connor,” Baldwin said.
O’Connor is often considered the crucial “swing” vote in deciding matters locked between the conservative and liberal sides of the Court. Last session, 21 of 75 decisions were decided by a 5-4 margin.
“One thing people also don’t realize about that statistic is that about another quarter of the decisions were decided unanimously, by a 9-0 margin,” Baldwin said.
The new session might also prove to be a landmark if the Court agrees to hear the appeal cases of citizens and non-citizens detained in near secrecy after the Sept. 11 attacks and of citizens facing terrorism charges.
The Court could also decide on the constitutionality of laws designed to give law enforcement more power in the war on terrorism.
Depending on the cases the Court decides to hear, new precedents could be set concerning the jurisdiction of the law in matters of war.
“New cases will have more importance,” Downs said. “They have to deal with this stuff.”
Baldwin agreed.
“These things have to be framed in a judiciable way,” he said.
However, Downs said that as far back as the Civil War, the Court has deferred to the executive branch on matters of war.
“A good Court acknowledges the problem and doesn’t duck and cover and give the administration exactly what it wants,” Downs said. “However, Courts are careful about not taking power away from the executive branch.”
Downs said the Court will have more decisions to make because of the nature of the war on terrorism.
“Are we at war? I’m not really sure,” Downs said. “The Courts will have more to say about it, because it is a strange war, and it is being fought on a domestic front, in addition to an international one.”
