By David Alistair Yalof
As George W. Bush approaches the final year of his presidency, pundits are considering what legacy the 43rd president of the United States will leave to the nation.
To a large degree, the Bush legacy is tied to the Middle East: If Iraq becomes a flourishing democracy 30 years from now, he will be credited with putting into motion the process.
If not, the botched response to Hurricane Katrina, an inability to move forward any kind of second-term domestic agenda and failure in Iraq will support negative views of the Bush presidency.
However, one area where scholars are in a better position right now to assess the Bush legacy is his impact on the federal judiciary and, indirectly, on the state of constitutional law.
Stated simply, George W. Bush may have done more to transform the constitutional landscape in a conservative direction than any president in the past century, including Ronald Reagan and Richard Nixon.
To be sure, this result would not have been possible without a Republican- controlled Senate in place during half of his presidency. Bush won nearly every battle he waged to get extremely conservative judges and justices confirmed.
Considerable inroads were made in the lower courts, which Bush stocked with ideological conservatives from the outset. Perennially undermanned circuits like the United States Court of Appeals for the Sixth Circuit are now brimming with ideologues eager to vote the conservative line on any number of issues.
The same can be said for at least five other federal circuits. Yet, for over a quarter-century, the U.S. Supreme Court has been the elusive target of social conservatives. Republicans have controlled the White House for 27 of the past 39 years and, consequently, Republican presidents have had the opportunity to appoint 13 of the past 15 High Court vacancies.
Yet, thanks to high-profile conservative disappointments such as Associate Justices Harry Blackmun, John Paul Stevens and Sandra Day O’Connor, the Court has remained narrowly split throughout this period, with victories decided according to justices who swing back and forth between the liberal and conservative factions.
However, Bush’s appointment of Chief Justice John Roberts and Associate Justice Samuel Alito to replace William H. Rehnquist and O’Connor, respectively, has shifted the calculus dramatically.
Simply replacing the aging Rehnquist with a 50-year-old ideological compatriot in the Court’s center seat helps to establish stable conservative leadership on the Court for decades to come.
Yet, substituting Alito for O’Connor was the true masterstroke. By replacing the Court’s “swing vote” with a consistent conservative vote, Bush has effectively relegated moderates and liberals to the dissenting camp for the foreseeable future.
Even if a Democrat wins the 2008 election, the newly elected president will most likely be looking to replace liberals John Paul Stevens, 87, and Ruth Bader Ginsburg, 74, before anyone else. Meanwhile, none of the Court’s more conservative-leaning troika of Antonin Scalia, 71, Anthony M. Kennedy, 71, and Clarence Thomas, 59, are expected to turn in their robes yet. The Democrats may have to win three or four consecutive presidential elections in a row to reverse the appointments of Roberts and Alito.
During the Court’s fall 2006 term—the first to feature Roberts and Alito in their seats from the outset—conservatives won every major constitutional battle, handing down narrowly decided rulings on abortion, free speech and church and state issues. It was perhaps the most one-sided Supreme Court term since the late-1960s, when liberals enjoyed the upper hand.
All that remains now is to watch what the Court does in the future with issues of executive branch power, whose fault lines do not so readily fall along the more traditional conservative-liberal divide. Many expect that Roberts and Alito will defer to presidential power in the war on terrorism, handing Bush some important victories at the close of his presidency.
Perhaps the most significant aspect of this seismic shift in favor of conservatives on the Court is the manner in which its two new members have chosen to exercise their power. Each of the two most conservative holdouts from the Rehnquist Court—Scalia and Thomas—made it a frequent practice not just to criticize or narrow more liberal precedents from the Warren and Burger Courts but to call for their outright elimination as well.
Looking at the 2006-07 Supreme Court term, one or both of those two justices called for the Court to outright overrule the abortion precedent of Planned Parenthood v. Casey, the campaign speech precedent of Buckley v. Valeo and the student speech precedent of Tinker v. Des Moines.
By advancing those arguments in the past, Scalia and Thomas may have helped to push O’Connor, Souter, and, to a lesser extent, Kennedy, into the opposing camp at critical junctures. O’Connor, in particular, earned a reputation for bristling at attempts to discard Supreme Court precedents even when she felt they were flawed. By routinely asking for the whole loaf of bread, the two most conservative justices often ended up with no loaf at all.
By all measures, Roberts and Alito are of a much different mind than Scalia and Thomas on this issue. The two new justices routinely sided with conservatives during last year’s term, but they stopped short of more radical calls to revolutionize doctrines. Conservative court watchers who fear this development forebodes more moderation from the Court are missing the point.
The Supreme Court’s most lasting victories have come not so much through evoking grand gestures, but rather by a process of incremental change and reform. Brown v. Board of Education and Roe v. Wade fit into the grand gesture category: It took decades for the former decision to take hold in the South and the latter decision has already been gutted by subsequent courts. Unlike Scalia and Thomas, who advocate the immediate death of previous Court decisions, the recent nominees seem more likely to pursue a course of “death by a thousand cuts.”
The liberals and moderates remaining on the Court are not naive in this regard: They know exactly what Roberts and Alito may be able to accomplish with subtle incrementalism, and they have no means of stopping it.
On this one front, social conservatives who helped George W. Bush win two close election contests have apparently won the battle. For a president whose final legacy could well be tarnished by failures in the war in Iraq and elsewhere, that represents no small measure of success.
For information about Professor Yalof, visit the Department of Political Science Web site: wwwpolisci.uconn.edu.