Souter's retirement will turn Supreme Court to the left
The Supreme Court keeps nine jurists busy (at least for part of the year) deciding the most important legal issues in the land. But of all these issues, there seems to be only one that really matters -- abortion -- which comes in the form of a little court case known as Roe v. Wade. With the June 2009 retirement Justice David H. Souter, the ongoing tug of war over whether to uphold or overturn Roe likely will see a net +1 gain for the uphold team. Depending on how many other justices leave in the next four years, the upholders could finally gain an insurmountable advantage.
The liberal justices -- Breyer (age 71), Ginsburg (76) and whomever Obama appoints to fill Suter's vacancy -- all, of course, want to preserve Roe's case's influence, and the conservative ones -- Alito (58), Roberts (54), Scalia (73), and Thomas (61) -- would probably like to gut it. It's unclear where centrist justice Stevens (89) stands.
It's worth pointing out that Justice Souter ended up being far more liberal than some Republicans had hoped. But Obama is likely to appoint the more liberal still Elena Kagan -- a former Harvard Law School dean who I had the privilege of meeting several years ago -- to Souter's seat. Kagan has a good shot at getting approved as well, particularly if former SNL funnyman Al Franken takes the Minnesota Senate seat in the next month or so.
Meanwhile, the big question is how many more Supreme Court justices will leave in the next four years. Just looking at the ages of the current justices suggests that Stevens and Ginsburg have the best odds of giving up their seats during President Obama's current term. Insiders predict he, in turn, would fill those vacancies with progressives Harvard Law School professor Cass Sunstein and Massachusetts Governor Deval Patrick.
If those appointments were approved before a challenge to Roe v. Wade landed on the Supreme Court's docket, the court would be evenly divided -- 4-4 -- between upholders and overturners. Since a tie goes to those wanting to maintain the status quo, any suspense over the fate of Roe would then be eliminated, potentially for years to come.
Peter Cohan is president of Peter S. Cohan & Associates. He also teaches management at Babson College. His eighth book isYou Can't Order Change: Lessons from Jim McNerney's Turnaround at Boeing.