Within minutes of Justice Sandra Day O'Connor's announcement that she will retire, religious activists were rallying for battle. "We've been preparing for this for over a year. We've stockpiled our weapons," said Lanier Swann, director of government relations of the conservative organization Concerned Women for America.
The court seat that Swann and others thought they would be battling over, however, was that of Chief Justice William Rehnquist. Rehnquist, a solid conservative, would be replaced by another trusted conservative, and the Court's balance would be maintained. And while that retirement would have ignited a ferocious battle, O'Connor's ratchets it to Def-con 4.
Why? Because O'Connor is considered a centrist, casting the deciding vote in cases that riled conservative activists--including this week's decision outlawing the display of the Ten Commandments. She also cast important votes in cases involving abortion rights and religion in public schools, where she sided with the majority in barring clergy-led prayer at public high school graduations.
That tendency led liberals like the Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State, to praise O'Connor. "I give her enormous credit for being a moderate conservative," he said Friday.
But her swing vote also swung the other way at times--for instance, when she was the deciding factor in the Court's decision to allow government funding for school vouchers.
Some constitutional experts, however, don't expect much to change with her retirement.
"She was a reliable, consistent states-rights conservative," said Richard Garnett, a professor at Notre Dame Law School.
For months, the catch-phrase of choice among religious conservatives concerned about the direction of the Supreme Court has been "judicial activism." In their view, the court has overstepped its boundaries, choosing to set progressive social policy rather than respect the Constitution or traditional religious values. Liberals, meanwhile, praised O'Connor and called on Bush to nominate a similarly centrist justice.
Overview: Still the granddaddy of culture-war issues, O'Connor cast the swing vote in Stenberg v. Carhart, a 2000 case striking down Nebraska's ban on partial-birth abortions. In other cases, she consistently voted to uphold Roe v. Wade while accepting limitations on its scope.
What's At Stake: Conservatives would love to continue chipping away at Roe v. Wade and eventually overturn it. In an email to supporters, former presidential candidate Gary Bauer implicitly took aim at O'Connor's stance in writing: "The public is increasingly disturbed by a Supreme Court. that finds partial-birth abortion to be a cherished right."
Liberals want to prevent that and fear they are losing the battle to preserve abortion rights. Their attitude is summed up in a Ms. Magazine headline about the coming Supreme Court battle: "Hanging by a thread." In a statement, the Religious Coalition for Reproductive Rights acknowledged the challenges they'll face: "We urge the nation's leaders to avoid a confrontation over this deeply private issue and refuse to have a litmus test on abortion or any other single issue. We simply ask that the next Supreme Court justice be a person who will uphold our fundamental Constitutional rights and is distinguished by a record of fairness and integrity, respect for both legal traditions and contemporary needs, and the ability to weigh competing considerations."
Analysis: Even conservatives like Cizik admit that O'Connor's retirement will not tip the balance on Roe v. Wade. But with a case about parental notification of abortion set to be argued before the Court in its next term, O'Connor's absence could be felt immediately.
Overview: Just this week, the Court issued two decisions regarding public displays of the Ten Commandments, allowing Ten Commandments monuments outside the Texas state Capitol while forbidding them inside Kentucky courthouses. In both cases, O'Connor voted with the liberal justices against the public displays.
In Garnett's view, this issue may be O'Connor's greatest legacy because she introduced the "reasonable observer" test: What message does a public display send to the reasonable observer? If that message is one of government endorsement of religion, the display is inappropriate; if it's seen as a personal or private display of religion that happens to be on public grounds, it is OK.
In addition to cases of public displays, the Court is likely to face cases involving religious speech in public schools and other governmental property. These raise similar legal issues as the cases about public displays.
What's At Stake: The issue of the Ten Commandments galvanizes religious conservatives. The Christian Coalition, on its website, called the Ten Commandments decisions "shameful and muddled," calling for Congress to "rein in liberal out-of-control Supreme Court after infamous 10 Commandments decisions."
Liberals generally cheered the Court's decisions, even though it didn't decisively draw up criteria for public displays. David Saperstein, director of the Religious Action Coalition of Reform Judaism called the decisions "an essential affirmation of government neutrality toward religion."
Analysis: With the seemingly contradictory nature of this week's Supreme Court decisions, the issue is virtually assured of returning to the Court's docket soon. But despite O'Connor's leadership on this issue--and her liberal votes in these cases--her retirement is unlikely to make a major dent on the Court's decisions, Garnett said. That's because her philosophy on this issue was conservative and therefore her successor is likely to agree with it. "It's a sure thing that President Bush's nominee with agree with Justice O'Connor's opinion that private speech is protected and the government has to be neutral," he said.
Overview: The same-sex marriage issue has played out mostly in state courts, legislatures, and ballot initiatives. The major Supreme Court case in recent years was Lawrence v Texas, which struck down state laws outlawing homosexual sex. In that, O'Connor sided with the 6-3 majority. Ditto for Romer v Evans, in which she joined the majority in striking down a Colorado constitutional amendment which precluded any governmental action protecting people based on sexual orientation. On the other hand, O'Connor was a swing vote in a case in which the Court allowed the Boy Scouts to bar gays.
What's At Stake: Gay marriage is another issue that has galvanized the right, even as some conservatives saw the Supreme Court as "liberal" on this issue because of the Lawrence case. Cizik criticized Lawrence for saying "the government may not outlaw sodomy based on moral or religious opinions or even protect the traditional family."
Supporters of gay rights have had an up-and-down few years. Lawrence was followed by the Massachusetts Supreme Court's decision--which cited Lawrence--instituting same-sex marriage. But voters approved gay-marriage bans in all 11 states where it was on the ballot last November, and Bush has said he supports a constitutional amendment defining marriage as between a man and a woman only.
Analysis: The Court is unlikely to see a case anytime soon directly involving the constitutionality of same-sex marriage. But there are related issues it will probably face soon. These include questions regarding the U.S. status of married gay couples from nations like Spain, where it is legal, and whether states must recognize same-sex marriage contracts from other states, Lynn said.
The Court is also likely to face cases in the coming years involving Bush's faith-based initiatives; Oregon's assisted suicide law; federal laws that may conflict with religious organizations' values or interfere with their policies; and the teaching of creationism, evolution, and intelligent design in public schools. It's no wonder, then, that religious organizations on the left and right are gearing up for battle.
"For President Bush, social conservatives, and the senators they helped elect, the moment of truth has arrived," Richard Land of the Southern Baptist Convention said in a statement. It's one sentiment liberals and conservatives would agree on.
