WASHINGTON (ABP) — Although there was a lot of news on the last day of the Supreme Court's 2004-2005 session June 28, one of the biggest stories was a non-story: No justices announced their retirement from the bench.
Many court observers have been speculating that Chief Justice William Rehnquist, ailing from thyroid cancer, would pick the court's last day to resign. However, he chose not to. There also have been regular inside-the-Beltway rumors that other justices — including Sandra Day O'Connor, often a crucial “swing vote” — would retire.
Either resignation would likely touch off a fierce partisan confirmation battle in the Senate, since President Bush has vowed to nominate only judges with strong conservative credentials, while Senate Democrats and some Republicans have shown resistance to his most conservative nominees for lower federal-court judgeships.
The two Ten Commandments decisions rendered June 28 illustrated the stakes. The justices upheld a display of the Decalogue on the Texas Capitol grounds, but found similar displays in two Kentucky courthouses unconstitutional. O'Connor ruled against the displays in both cases.
Her resignation and replacement with a more reliably conservative justice would shift the court's ideological balance firmly to the right, perhaps for decades. While Rehnquist has been a reliable conservative, he has also occasionally surprised court observers with rulings on church-state issues that indicate a more moderate view of the issue than the court's two most conservative members.
But Bush has said his models for judges are justices Antonin Scalia and Clarence Thomas. Both have repeatedly voiced disdain for much of the court's precedent in church-state cases over the past 60 years. For example, in a concurring opinion on the Texas case, Thomas reiterated a previously expressed view that even some of his fellow conservatives find outlandish. The First Amendment's ban on government establishment of religion applies only to the federal government, Thomas argued, and would not prevent state or local officials from establishing an official religion.
Speaking to reporters on the court's front steps June 28, one conservative religious leader prominent in the battles over Bush's court nominees said the Ten Commandments decisions indicate the gravity of whatever a court vacancy may occur before the end of Bush's term.
“It reinforces the importance of the make-up of the court,” Tony Perkins, president of the Washington-based Family Research Council, said.
Members of the court can resign at any time — via a press announcement or by releasing the resignation letter they write to the President.
The White House was tight-lipped June 28 on whether any members of the court would resign, and how that might affect future decisions in cases such as those involving the Ten Commandments.
“If there is a vacancy to announce, I would imagine that that would come out of the Supreme Court first,” White House Press Secretary Scott McClellan said in his regular afternoon briefing with reporters. And that's the appropriate place for it to come out of, and I don't think you should read anything into that one way or the other.
When a reporter asked McClellan if the Kentucky case is the type that Bush hopes would be decided differently under a future court, he said he was “not even going to try to speculate about that.”