Bush’s Judicial Legacy

In this law.com article, Tony Mauro examines Bush’s impact on the Supreme Court. Mauro notes that even before his election in 2000, Bush had already given a lot of thought to the importance of good judicial nominees. However, Mauro adds, after eight years of Bush appointments the anti-activist transformation of the Court begun at Bush’s Crawford ranch may still be somewhat in its infancy. After all,

“in a conservative paradise, the Court would not have expanded habeas rights for Guantánamo detainees as it did in Boumediene v. Bush, nor would it have declared yet another category of defendants—child rapists whose victims survive—immune from the death penalty, as it did in Kennedy v. Louisiana. The Court pleased the business community by slashing the punitive damages stemming from the Exxon Valdez oil spill in Exxon Shipping Co. v. Baker, but … [e]mployment discrimination cases also went against employers, by and large”

Cornell Law School’s Michael Dorf observes that

“the mantra from liberals for the last four elections, at least, has been that the Supreme Court is ’one vote away’ from overturning cherished precedents like Roe v. Wade. Dorf notes that on issues such as race, abortion, and gay rights, “things have moved considerably. But we are still one vote away.’”

Mauro explains that the current center-right court can be attributed to a “dramatic chronology,” which includes the retirement of Justice Sandra Day O’Connor, the untimely death of Chief Justice William Rehnquist, and the unsuccessful nomination of Harriet Miers. It was “crucial to the almost accidental success of Bush’s Supreme Court nominations” that events unfolded the way that they did concerning the nominations of Alito and Roberts. But no matter the luck that led to its formation, the current court in its first term alone “brought enough conservative victories” to cement Bush’s legacy.

But how long might this legacy last? With Obama predicted to win the White House and a filibuster-proof Senate looming, what David Garrow of the University of Cambridge calls “‘the most successful legacy of Bush’s two terms” may be short lived.