Supreme Court is key to new Bush term

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The Independent US

The clearest pointer to the course of the second Bush administration at last week's inauguration was not the soaring presidential pledge to end global tyranny - a mismatch between rhetoric and reality if every there was one.

The clearest pointer to the course of the second Bush administration at last week's inauguration was not the soaring presidential pledge to end global tyranny - a mismatch between rhetoric and reality if every there was one.

Rather, it was the sight of the frail old man who administered the oath of office - propped up on a walking stick, with a scarf only partially concealing the device installed in his throat that is part of his treatment for thyroid cancer.

Last Thursday, William Rehnquist, Chief Justice of the Supreme Court of the United States since 1986, was swearing in a President for the fifth, and without doubt the last, time. Within months, perhaps sooner, the 80-year-old Chief Justice is likely to resign. At that point the biggest political battle of Mr Bush's final term will begin in earnest.

The longer presidents hold office, the more they worry about their place in history. But after eight years at most they are gone. Supreme Court justices, however, hold their seats until they decide to retire. The President could end up appointing not just one, but up to four, by the time he leaves the White House. If so, his imprint on American society could endure for a generation.

The present set of justices have been together since mid-1994. Only one of the nine justices - Clarence Thomas, a stripling at 56 and perhaps the most conservative member of the court - has not passed what would be retirement age in most walks of life.

Of them, Chief Justice Rehnquist, four years the junior of John Paul Stevens, is not even the oldest. Sandra Day O'Connor, 74, has hinted several times that she would like to step down. Another justice, Ruth Bader Ginsburg, appointed by President Clinton in 1993, is over 70. All three, like Chief Justice Rehnquist, have had bouts with cancer.

As the December 2000 ruling that handed Mr Bush the presidency underlined, conservatives have a five-four majority. But as often as not, Ms O'Connor has been the swing vote. She has backed the liberal minority in several key decisions, including rulings to uphold abortion rights and preserve racial preferences in college admissions. All that could change if Mr Bush manages to install new justices who reflect his deeply conservative philosophy.

As the recent election showed, America's fiercest domestic wars are less political than cultural. The divisions involve religion, abortion, sexuality and the balance of power between individual and state. Increasingly, these are resolved not by a polarised Congress, but by the Supreme Court. For Democrats, dispossessed of the White House and seemingly condemned to permanent minority in Congress, the court is a last frontier to defend.

Replacing Chief Justice Rehnquist with a conservative would not alter the court's underlying balance. But if Justice Stevens, Justice O'Connor or Justice Ginsburg steps down, the stakes would be even higher. But the price would be a declaration of legislative war by the Democrats that could snarl up the entire Bush domestic programme.

And there is one last problem for the President. As many a recent Supreme Court nomination shows, justices have a tiresome way of turning out not quite as their backers intended. Mr Bush may be hoping that the Chief Justice and his elderly colleagues can somehow keep going for a while yet.

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