Reading the Tea Leaves

One of the major concerns during the election campaign was how a new president would have an early opportunity to significantly reshape the Supreme Court. Justices are appointed for life, and an appointment opportunity for a President only comes when a justice retires or dies. The Founders designed it that way to insure consistency and to provide a check on government ideological swings as administrations come and go. It has worked superbly.

Courts have been called too liberal or too conservative, but that is usually just political dialogue. The ability to have the court move to extremes has been very limited. Often justices temper in their doctrine during their tenure on the court. Often the mood of the electorate provides for an ideological shift in the executive and legislative, but the judiciary responds slowly.

The deep seated fear was that an extremist President such as Obama (and there can be no doubt at this point that he is precisely that,) would move the court quickly to the left--an activist position abhored by conservatives.

Here's a bit of prognostication on the future:

A Bright Light in a Dismal Future

So, Justice Ginsberg dropped a not unexpected bomb two weeks ago. She has had a recurrence of her cancer, and I would have to take a pessimistic view of our prognosis. She suggested, without too much subterfuge that there very well might be a new face on the court shortly. I'd say that is almost definite.

Recall that over the history of the republic that on average a sitting President gets to appoint but one justice per term. Some don't get any, some get a couple during a term. Bush got none during his first term and then a double in short order for his second.

What's the bright spot? Ginsberg is about as far left on the court as you can get. A replacement for her won't shift the balance at all. If Souter leaves, as the Slate item suggests, the same situation exists. Still no ideological shift. And if John Paul Stevens disappears? You've got a three-fer of liberals being replaced, naturally by liberals. But, no ideological shift.

Now let's continue to hope that Roberts, Scalia, Thomas and Alito take care of themselves.