When the dust settles from the weekend whirlwind, it should be clear that the Court is not on the verge of any dramatic transformation. I do not mean by this observation to dishonor or disparage Chief Justice Rehnquist and his legacy. On the contrary, it is precisely because the nominee to the new vacancy that has developed cannot be markedly better than Rehnquist in his voting record that the transformation that many of us hope for and the Left fears is not around the corner.
Let me explain. Before last weekend, it appeared that Roberts would replace O’Connor. Now Roberts and a nominee-to-be-named-later will replace O’Connor and Rehnquist. If one ignores for vote-counting purposes the irrelevant fact that Roberts will be casting his vote as Chief Justice rather than Associate Justice, and if one makes the reasonable-best-case assumption that the nominee-to-be-named-later will vote by and large as Rehnquist would have, then it should be evident that this past weekend’s developments do not portend any change in the Court’s voting from what we expected last week.
Stated somewhat differently, even if Roberts and the next nominee vote like Scalia and Thomas, Kennedy will remain the swing vote on the Court.
Real transformation—building a Court that is faithful to the Constitution and that respects the right of the people to govern themselves through their elected representatives—will come only when Stevens, Kennedy, Souter, Breyer, or Ginsburg is replaced by a proponent of judicial restraint. Of course, the existing vacancies need to be filled properly in order to make that possible.