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Justices' long tenure brings stability, speculation on retirement

By Wiliam Mears (Washington Bureau)


WASHINGTON (CNN) -- The current justices have been together since 1994, the longest period of stability since the 1820s. That stability has helped the justices forge good working relationships with each other, and also is leading to speculation on who will be the next justice to retire.

The justices' average age, about 68 years, ranges from Thomas (54 years old) to Stevens (83 years).

Two were born in the Midwest (Rehnquist, Stevens); three in the west (O'Connor, Kennedy, and Breyer); three are from the Northeast (Scalia, Souter, Ginsburg); and one from the South (Thomas).

Diversity has long been a contentious issue with the Court, its makeup historically failing to reflect the country as a whole. Of the 108 justices to serve, all but two have been men; all but two have been white. The current Court has two women (O'Connor, Ginsburg) and one African-American (Thomas).

As a group, the justices have wide experience. All but Rehnquist have worked as federal or state appeals court judges, and many legal scholars applaud the quality of their work on the Supreme Court. "They are well-prepared, active, well-informed, engaged, with tough questioning [of lawyers] from the bench," says David Garrow.

A rough ideological split has developed over the years. On one side, the conservatives: Rehnquist, Scalia, and Thomas. On the other, a more liberal bloc: Stevens, Souter, Ginsburg, and Breyer. Justices O'Connor and Kennedy, nominated by President Reagan, have often been so-called "swing votes," moderates who lean conservative in many opinions, tilting a 5-4 majority to the right. But when it comes to the current Court, nothing is absolute.

That's especially true when it comes to a favorite game inside the Washington, D.C., beltway and among the legal community: who will be the next justice to leave the bench, and who will be the replacement. Many thought Chief Justice Rehnquist, or perhaps Justices Stevens or O'Connor would step down at the end of the last term, but that has apparently not been proven the case.

The names of replacements are equally opaque. The White House is known to have a somewhat broad list ready. But while many believe the president will nominate a Hispanic as the next justice, other considerations, political and practical, are at play.

Court has judicial confidence

The Supreme Court under Chief Justice Rehnquist has not shied in the past from taking on tough, timely cases -- such as its willingness to address the disputed 2000 presidential election. This judicial confidence, says Pulitzer Prize-winning author and Supreme Court historian David Garrow gives "this Court no second thoughts that it knows better than anyone else, especially the Congress, what is right."

Some Court watchers see the justices tackling these issues sooner rather than later: "They may feel more of an urgency, a need to take these cases early on to resolve the issues, in effort to unify the country," says Beth Brinkmann, a former government lawyer who has argued 18 cases before the Court. "But it all really depends on the kind of cases presented to them, the constitutional questions."

Already, the justices will have their hands full with an unusually wide-ranging and potentially contentious set of cases for review this term: gun control, abortion, death penalty, affirmative action, sex offenders, hate crimes, mandatory sentencing and copyrights.

The nine justices (Chief Justice William Rehnquist, and associate justices John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer) have been together nearly a decade.

"This stability has allowed the Court to really get comfortable with themselves," says David Yalof, a political scientist at the University of Connecticut, and recent author of "Pursuit of Justices.

"They've reached a consensus on procedures, taking on a reduced caseload than in the past, but with their work focused on writing extensive, thoughtful opinions." Adds David Garrow: "This is a happy Court, who almost without exception like each other."

Unpredictable outcomes

But they have by no means become a predictable group, due in part to a slim 5-4 conservative majority, where one vote can tip the delicate ideological balance. Twenty-eight percent of the 75 opinions issued last Term were 5-4 votes; the year before, it was nearly 33-percent. The result: unpredictable outcomes on key issues. In the last term, in a 5-4 vote, conservative justices upheld state-funded vouchers for private, mostly religious schools. But in two key death penalty cases, moderate and liberal justices prevailed, one barring executing the mentally retarded; the other found unconstitutional judges, rather than juries, who alone decide "aggravating factors" when deciding the death penalty.

One trend likely to continue is the Court's willingness to address issues involving federalism, the power of the U.S. law in relation to state and local laws.

"It's been the most dramatic change in the Court over the last five years or so," says Beth Brinkmann, an assistant to the US Solicitor General. Recent cases have for the most part affirmed the conservative majority's deference to states' rights, including a landmark ruling last term allowing state taxpayer money to fund vouchers for private school students. The conservative majority also struck all or part of a number of Clinton-era laws on state's-rights grounds, including the Brady Act on handgun registration, Gun-Free School Zones Act and Violence Against Women Act. And the justices prevented state agencies from being sued by workers over claims of discrimination based on their age or disability.

"The impact is that it really gives attorneys an avenue to raise new types of challenges to federal statutes that wouldn't have been considered 15-20 years ago," says David Yalof. Several interesting federalism cases will be heard this Term.

Another trend may be in the area of intellectual property: trademarks, patents, copyrights. Rapid changes in technology fueled by high-speed communications, including the Internet, and globalization have raised an entirely new and evolving set of legal issues over commerce and public access to information. The Court will tackle a number of such cases this Term.

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