Friday, July 01, 2005

Today's announcement by Justice O'Connor that she is retiring after 24 terms on the Supreme Court will enable President Bush to fill the Court's first vacancy in 11 years. Speculation had abounded that Chief Justice Rehnquist would be stepping down this week (a decision that may still be forthcoming). As a dependable conservative vote, Rehnquist's retirement would not have shifted the delicate balance that has existed on issues ranging from affirmative action to the separation of church and state. With O'Connor's retirement, however, the Court loses its crucial swing vote on these issues whose bearing on the nature of our democracy can hardly be overstated (though, notably, Roe v. Wade still enjoys a 5-4 majority with Kennedy now holding the decisive vote).

Peter Rubin, writing for the American Constitutional Blog (, offers a brief sketch of the forthcoming changes in constitutional jurisprudence:

Justice O’Connor’s retirement from the Supreme Court represents a seismic event in American law and the life of our country. Her replacement by a conservative in the mold favored by President Bush would likely mean, among other things, the end of affirmative action in higher education in the United States (it was held constitutionally permissible by a 5-4 vote in her opinion in Grutter v. Bollinger); a lowering of the wall of separation between church and state – something that has served both religion and government so well in this nation – so that public display of religious symbols by government even with a primarily religious purpose would be permitted (hers was the fifth vote this Monday in McReary County v. ACLU which invalidated, 5-4, the posting of the Ten Commandments in a Kentucky courthouse); and that, at the very least, many, many more restrictions on women’s right to abortion would be upheld (Justice O’Connor was the fifth vote in the Court’s most recent abortion case, Stenberg v. Carhart, invalidating by a 5-4 vote a law that would have prohibited one method of performing abortions and that contained no exception to protect the health of the pregnant woman).

[Guest blogger, Addison Thompson, submitted this post].


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