by J. Brooks Terry
Staff Writer
There hasn’t been a vacancy in the U.S. Supreme Court for nearly a decade, the second longest stretch in history. However, experts predict that could change within next two to four years.
Depending on the vacancy, they say, balance and precedence within the American judicial system may be at stake.
Duke University law professor Erwin Chemersky, spoke to the legal community here last week at the Coffman Coleman law firm.
He said as many as three vacancies on the Supreme Court bench could soon surface as age for Justices John Paul Stevens, 84, and Sandra Day O’Connor, 74, and medical complications for Chief Justice William H. Rehnquist, who is battling thyroid cancer, become more pressing issues.
Chemersky said little would change if conservative Rehnquist were to step down during the second term of equally-conservative President George Bush. But if liberal O’Connor, Stevens or both retired in the next four years, right wing opinions on the bench would overwhelmingly prevail.
“A lot of people ask that question and I’ll be sure to keep my comments purely descriptive,” said Chemersky. “Whether it’s good or bad? That’s your ideology.”
Chemersky, a Harvard Law School graduate and former trial attorney for the U.S. Department of Justice in Washington D.C., wouldn’t speculate on potential replacements, saying they could either be existing judges or someone who is “not high profile.”
“It could be anyone, but conventional wisdom says a conservative replacement will be named. A conservative president and 55 conservative senators would certainly support that,” he said. “If Stevens or O’Connor were to retire, it would have much more dramatic change in the law.”
Those dramatic changes, he said, could include increased scrutiny on Affirmative Action and a reversal on current campaign contribution restrictions.
“These are the issues that have been very evenly split for some time,” said Chemersky. “Restrictions on campaign contributions, for example, has been argued to be a limit on civil liberties. Conservatives could and probably would want that overturned.”
A conservative impact would also be felt in religious circles, he said, most notably in public schools where prayer and religious imagery are outlawed.
“That’s also always been a very close 5-4 split,” said Chemersky. “With a conservative-heavy Supreme Court, I don’t think it’s out of the realm of possibility that religious symbols could return in schools. Right now, there is a lot of sensitivity placed on the families of students who would be opposed to that, but the issue regarding the majority of families who wouldn’t could be argued.”
Few argued the fundamentals of Chemersky’s take on the future of the Supreme Court during his speech. Later, however, local legal opinion countered that a partisan shift in the Supreme Court would never be as severe as he believed it could be.
U.S. Circuit Court Judge Gerald Tjoflat, a Duke graduate, said the legal pendulum would only swing so far before moving in the opposite direction.
“I don’t think a change in the courts would ever be so dramatic,” he said. “The courts will drift off center from time to time, but it usually has very little to do with new people there. In some cases, it’s just a gradual pull to one side as current justices change their ideologies over time.
“If it shifts too far, someone will pull it back.”
Tjoflat added that precedence set by previous courts would be hard thing to overturn without substantial reason as to why it would be necessary.
“In most, if not all cases,” he said, “you would have to have some very solid ground to do that. The courts can’t simply throw out previously existing laws if influences change. It would take more than that.”