No Spring Chickens on Court's Left Side

In a New York Times magazine article last year, telecommuting Supreme Court Justice John Paul Stevens told of his amusement at finding telltale traces of having been working with legal briefs at the beach by his Florida condo.

"One of my favorite memories is the time I was sitting (on the bench after a return from Florida). I shook the sand out of the brief!"

The magazine portrait confirmed the 88-year-old justice's remarkable intellectual and physical fitness. Unlike justices who rely heavily on clerks, Stevens writes the first drafts of his opinions. And he's an avid tennis player, swimmer and golfer.

Appointed in 1975 by Republican President Gerald Ford, Stevens has gradually moved into the unexpected position of being dean of the liberal wing of the nine-member court.

"I suppose there are a lot of people out there praying I get out of the way," Stevens told writer Jeffrey Rosen when talking about the unclear shelf life of abortion rights.

No doubt, Stevens was right that he's in the prayers of the smallish group of Americans who grasp both the enormous clout of an individual justice and the unusual opportunity the next president could have to reshape the court.

No one else on the court's left wing is a spring chicken, either: Democratic appointees Ruth Bader Ginsburg and Stephen Breyer are 75 and 70, respectively. Plus Republican appointee David Souter is 69.

And the justice who now casts the deciding vote in most 5-4 splits is Republican appointee Anthony Kennedy, 72.

That quintet — with the help of now-retired Justice Sandra Day O'Connor — is responsible, for example, for the two groundbreaking rulings declaring that gay Americans have equal protection and privacy rights under the U.S.

To understand why court watchers agree that the Republican presidential nominee, if elected, will have far more potential opportunity to redirect the court, not just keep it on its current course, look at the relative youth of the court's Republican-appointed right wing: Antonin Scalia, 72; Clarence Thomas, 60; Samuel Alito, 58; and Chief Justice John Roberts, 53.

Now longevity is never a matter of simple arithmetic, as those of us blessed with exceptional, timeless parents know well. And I certainly hope that Justice Stevens will be shaking sand from his legal briefs through the entire tenure of the next president. But the court's next vacancy is likely to be on its left side.

So, Americans of every political stripe should know what the presidential nominees say about the Supreme Court:

Republican John McCain: A self-described adherent of the "strict constructionist" philosophy, he says his appointees would have a "proven record of strictly adhering to the Constitution ... and not legislating from the bench. Some of the worst damage has been done by legislating from the bench."

McCain has said he wouldn't have nominated Ginsburg, Breyer, Souter or Stevens, and praised Alito and Roberts as "my most recent favorites."

Democrat Barack Obama: He reflects the "living" document philosophy that the Constitution's meaning evolves with the times.

Obama voted against confirming Roberts and Alito, and has said he wouldn't have nominated Thomas or Scalia. In praising former Chief Justice Earl Warren, Obama said, "I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through."

Deb Price of The Detroit News writes the first nationally syndicated column on gay issues. To find out more about Deb Price and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com.

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