7 questions for a Supreme Court in transition

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - As the Supreme Court starts its 2005-2006 term it is in a transition from the Rehnquist Era to the John Roberts Era, with no definite date for the arrival of Justice Sandra Day O’Connor’s successor. The court has gone through periods of transition before, when justices die or retire and it takes months for their successors to win confirmation and begin work.

Here are seven questions about the court in a period of uncertainty:

Why did O’Connor make her retirement contingent upon the Senate’s confirmation of her successor?
She most likely wanted to not impede the work of the court, if for some reason her successor could not be promptly confirmed by the Senate.

Under a law passed by Congress in 1869, the court has nine justices. A vacancy creates the possibility of four-to-four ties on decisions. A tie leaves the ruling of the lower court standing.

To avoid this, the justices often choose to re-hear cases in which there is a tie, once the court is back up to its full membership of nine.

Did O’Connor anticipate the possibility that she would have to remain on the court for the next several months as now seems likely?
The timing of her retirement announcement on July 1 suggests she was doing her best to ensure that her successor would be confirmed by the time the court began its new term on Oct. 3.

Although she knew Chief Justice William Rehnquist was ill, she could not have known on July 1 that he would die on Sept. 3, nor could she have known that the nominee that President Bush slated for her vacancy, John Roberts, would instead be switched to the Rehnquist vacancy.

What part will O’Connor take in the work of the court while the Senate is mulling over the president’s nomination of Harriet Miers? And will O’Connor’s votes on cases count?
“She will certainly participate fully, that is why she didn’t resign,” said Duke University law professor Walter Dellinger, who served as acting solicitor general in the Clinton administration and argued nine cases before the high court.

Dellinger also knows Supreme Court tradition since he was a law clerk to Justice Hugo Black for the 1968-1969 term, during which Chief Justice Earl Warren, who’d announced his retirement, stayed on the court because the Senate had not confirmed a successor.

Especially important are any cases in which O’Connor casts a vote, and it ends up as a five-to-four decision and she’s in the majority. If the decision were not yet publicly announced, the justices would likely decide to have the case re-argued, with the new justice participating in the re-argument.

“That’s the precedent from Justice Kennedy,” Dellinger said. After Justice Lewis Powell retired on June 26, 1987, it took until Feb. 18, 1988 before Kennedy could be sworn in as his successor.

Dellinger noted that it often takes months between the time the court hears oral arguments in a case and the announcement of a decision in that case.

For example, the California medicinal marijuana case, Gonzales v. Raich, was argued on Nov. 29, 2004, but the decision was not announced until June 6, 2005.

“One good office pool will be: how many opinions will Justice O’Connor write this term that will be issued?” Dellinger said. “She may get a couple out the door, depending on how the confirmation process proceeds.”

MORE FROM CRIME & COURTS

Crime & courts Section Front

Prisons could see first decline since 1972 Facing prison, Astor's son bares private life Friend defends husband of missing woman   After gripes, city’s police to wear cameras Utah police find 2 adults, 2 kids slain at home Federal judge could face impeachment Man guilty of in-home indecent exposure Legal fees mount in Madoff liquidation Search to resume for Vt. woman shot, burned Crime & courts Section Front   Add Crime & courts headlines to your news reader: