‘First Monday’ and the new Supreme Court term

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(Host) Commentator Cheryl Hanna says that the Supreme Court is about to open a session that will be marked by change.

(Hanna) Next Monday is First Monday – the official start of this year’s Supreme Court Term. Normally, those of us who look forward to First Monday with same passion and enthusiasm as, say, pro-football’s first kick-off, would spend this week obsessing over the most important cases the Court will consider, and trying to predict how the votes will go down. But this First Monday is likely to be the last First Monday for these nine justices. And that makes the start of this term poignant.

No new justices have been appointed to the Court in almost decade. In fact, it’s been 180 years since nine justices have stayed together for so long. And it’s been a divided bench. More than three-fourths of their cases have been decided in a 5-4 split, especially those on issues of religious freedom, reproductive choice, and state’s rights. And lest we all forget, this Court also split 5-4 in Bush v. Gore, in which, for the first and hopefully the last time in history, the Court, rather than the voters, arguably decided the presidency.

But the Court as we have come to know, love, and hate it, is about to undergo a radical change. It’s likely that at least one justice will retire this year – although the talk in legal circles is that as many as three justices could step down. Chief Justice Rehnquist, who has been on the court more than 30 years, is the most likely to announce his departure. So too could 72-year old Sandra Day O’Connor, and John Paul Stevens, who’ll turn 83 this term.

Even someone who’s not a regular court watcher might want to pay attention to the nomination process, because who’s appointed will affect all of our lives on issues ranging from environmental protection and the pledge of allegiance to big-brother-like police surveillance.

President Bush intends to nominate conservative justices – those who, like Justice Scalia, believe in a strict interpretation of the constitution, even when laws violate the spirit of due process and equal protection. For those of us most concerned about government interference with our individual freedoms to pursue life, liberty, and happiness, that’s frightening.

Vermont’s Senator Patrick Leahy will be a pivotal person in the nomination process. Leahy chairs the Judiciary Committee – the committee that recommends the president’s nominations to the full Senate. Leahy will try to block Bush’s most extreme nominees, and insist that more moderate justices reach the Senate floor for vote, assuming of course that the Democrats remain in control of the Senate after the November elections. If the Senate splits 50/50, as some predict, then the tie-breaker will be Vice President Dick Cheney. A vote on a Supreme Court Justice should never be so close, regardless of who’s in the White House.

I don’t always agree with this court, but I’ve come to appreciate the way in which many of the current justices strive for balance even when they ultimately disagree. But if the politics of the day tip the scales of justice too far to one side, it will become increasingly difficult to achieve Constitutional balance in the future.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.

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