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July 26, 2005

The Rehnquist Conspiracy

Since the end of the Supreme Court term I've been trying to figure out why Chief Justice Rehnquist has not stepped down from the Court. His health is poor and if I were him, I'd really want to spend a few years of my life doing something other than sitting on the bench. Then, when O'Connor retired, I figured, well, Rehnquist can't be far behind. Yet there he sits, unmoved.

Why could that be? What could he be thinking? Here's a theory: Rehnquist knows he should step down and may even wish he could. However, he also knew long before the rest of us that O'Connor was ready to go so he decided to hold on for at least one more term (if he can). He knew that if he stepped down and Bush appointed someone like him (which Bush would have done), the balance on the Court would not have changed. However, now that O'Connor is gone and Bush has nominated someone much more likely to agree with Rehnquist than O'Connor ever was, Rehnquist can stay in the hope that if he gets at least one full term with a solid right wing majority behind him he can really get U.S. law headed in the, um, right direction again.

And whether Rehnquist has thought any of these things is irrelevant. It looks like that's what's going to happen, regardless. Listening to NPR recently (Justice Talkingthe show is available for download ) I heard Nadine Strossen of the ACLU say that O'Connor's replacement will effectively have the power to amend the constitution. I guess I hadn't thought of it that way, but yeah, that's how important this nomination is. Heaven help us.

Posted July 26, 2005 06:51 AM | general politics law general

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"I heard Nadine Strossen of the ACLU say that O'Connor's replacement will effectively have the power to amend the constitution."

Last I checked, amending the Constitution was quite an involved political process. I guess this illustrates the difference in thought between liberals and conservatives: conservatives want justices who interpret the Constitution based upon its text and original understanding; liberals fear that the new justices will "amend" the Constitution because the Court has been their super-legislative body for way too long.

Posted by: JR at July 26, 2005 08:09 AM

I came to the same basic conclusion you did, but don't forget about the future of the Court. When the CJ retirement rumors were still going, there was a lot of talk about a possible joint deal, where a far-right nominee would be paired with a not-quite-so-far-right nominee, leaving the court more or less where it was before.

Assuming Roberts is to O'Connor's right (which seems reasonable) and taking your theory that Rehnquist will retire next year, we have a conservative majority for a term and then a chance to nominate another conservative to replace Rehnquist, solidifying the majority for years. If the Chief Justice considered your scenario, he surely considered this one too.

Posted by: Josh at July 26, 2005 09:37 AM

I think we on the left are reading too much into this. Rehnquist has been quoted a couple of times saying he wanted to die on the bench and I don't doubt that he will. Whether that is next week or two years from now is anyone's guess.

Jeremy: Yes, amending the Constitution is quite a process. I don't see any amendments in quite some time. I also don't see Roe being overturned anytime in the near future because someone would need the standing to sue to overturn it and standing for things like that is tough to come by.

As far as Constitutional interpretation goes, conservatives interpret it according to the text and OI when it serves their purposes just like liberals do. When the 1st, 4th, 8th and 14th amendments are in question, the interpretation often takes other forms.

Posted by: Steve at July 26, 2005 11:10 PM

"conservatives want justices who interpret the Constitution based upon its text and original understanding"

JR, I think the Constitution is said to be a living document and one that was written out 2 centuries ago. So constant interpretation is necessary, but equally necessary is for the interpretations to look at the language of the past, but the trends of the present. How else can the Constitution withstand the modern world? Or is the purpose of the Constitution to preserve the old American way and impede change?

Posted by: resipsacrap at July 26, 2005 11:10 PM

Last I checked it seemed like it was conservatives who were pushing real amendments to the constitution -- gay marriage, flag burning, etc. But what I meant w/that reference to NPR was not that a new Justice could literally amend the Constitution, but that a conservative majority on the Court could have a similarly far-reaching effect.

I'm curious: What's an example of the Court acting as a super-legislative body for liberals? Was the Court a super-legislative body for conservatives when it installed Bush in 2000?

Posted by: ambimb at July 27, 2005 06:14 AM

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