Supreme Court future rides on Bush, Gore choice

Lee Joan Epstein, Ph.D. Mallinckrodt Distinguished University Professor of Political Science and Professor of Law Arts & Sciences (314) 935-8580 epstein@artsci.wustl.edu http://www.artsci.wustl.edu/~polisci/epstein/

Stark differences can be expected in the philosophies of Supreme Court Justices appointed by the two main presidential candidates, according to Lee Epstein, Ph.D., the Edward Mallinckrodt Distinguished Professor of Political Science at Washington University in St. Louis. "Gore, for instance, opposes serious intermingling between church and state, and supports affirmative action. Bush, meanwhile, opposes affirmative action but supports prayer in school," Epstein said.

Of course, noted Epstein, in order for judicial appointments to have a major effect on the Court's direction, the Court must be narrowly divided on several key issues. And according to her issue-by-issue analysis, she contended that it is narrowly divided indeed.

Said Epstein: "We have a situation in which one or two new appointees could make huge differences in the law. These two candidates have the potential to leave important legacies."

According to Epstein, the election could drastically reshape the Court's stance on the controversial issues mentioned above -- affirmative action and church-state separation. On the former, Epstein maintained that a Gore presidency could shift the balance from anti- to pro-affirmative action -- especially if 76-year-old Chief Justice Rehnquist, a staunch opponent, retires. On the latter, Epstein anticipated the possible upheaval stemming from a Bush victory: Bush could replace liberal Justice Stevens, who is 80 years old, with a conservative tolerant of public school prayer, thus tipping the balance in support of prayer.

A similar dynamic would be at work on the hot-button issue of school vouchers, according to Epstein. A Gore appointee would probably solidify the narrow anti-voucher minority, but a new Bush appointee replacing either Justice Stevens or O'Connor (72 years old) is likely to overturn Court precedent on vouchers.

And as anyone following the campaign closely knows, the issue most often invoked in reference to the Court is abortion. Here, according to Epstein, the divisions are more complicated. "Essentially, three Justices support choice, three Justices don't, and three are somewhere in between. The key is O'Connor. If she were to leave, I think the middle would fall apart. Souter would drift toward ROE... and Kennedy to overturn ROE." In that case, a new appointee by either candidate could lead to "drastic changes in the abortion right," said Epstein.

Epstein did note, however, that on one issue which dominated news coverage during the primary season -- the death penalty -- the Court is unlikely to change course. "There isn't one Justice on the current Court who believes the death penalty is unconstitutional, as former Justice Marshall and Brennan did," she said. "So it is highly unlikely that we'll see the death penalty abolished any time soon. Indeed, I don't think Gore would get away with appointing someone opposed to the death penalty. That would be political suicide."

In sum, Epstein urged everyone to consider potential Court appointments when casting a vote this November. "Whatever else you think about Gore, he was certainly right to suggest that, in this election, the Supreme Court is at stake," she said.

Epstein, the recipient of seven National Science Foundation grants, has written extensively on the U.S. Supreme Court. She has taught courses on the American legal system, American government, civil liberties, constitutional law, constitutional interpretation, current controversies on the Supreme Court, interest group politics, politics of litigation, American political institutions, and law and social change. Epstein has recently lectured on Election 2000's potential impact on future Supreme Court appointments.