Re-Balancing The Supreme Court?

So the foregone conclusion has come to pass, Samuel Alito, Jr. is our newest justice to SCOTUS, and the conservatives can now have their field day with abortion, gay marriage, eminent domain, pornography, criminals and all of that good stuff that they have been itching to mess with just as soon as that swing vote O'Connor was gone, right?

Not so fast.

Perhaps the scions of the right, in their glee, have forgotten the total count in the court. Let's see...

Traditionally Votes Liberal
Stephen G. Breyer
John Paul Stevens
Ruth Bader Ginsburg
David H. Souter
Anthony Kennedy

Traditionally Votes Conservative
Antonin Scalia
Clarence Thomas
John Roberts
Samuel A. Alito, Jr.

Even though those last two can hardly be called "traditional," the count to me seems to be five to four. Now, I realize that there can be more leeway in decision and that these lines are not set in stone (witness the strange alignment of justices in the Kelo v. New London case from last year). These people are, after all, independent brains in bodies that sometimes make decisions based not on their supposed political background but for other factors and occasionally with the law in mind.

On anything historic or potentially divisive, however, these seem to be the lines that would divide the court and the "liberal" justices still have the majority.

When will it be time to worry about the "balance" of the court?

Well, if you put stock in such things, sooner than you may realize.

For you see, Associate Justice John Paul Stevens is eighty-six years old, according to his biography. He was nominated by Gerald Ford in 1975 and is the oldest sitting justice currently on the court. Now, I am not sure about his health, but going by the numbers, he is over the average life expectancy for an American male by over ten years. What the upshot of this is the fact that President Bush may get to make another nomination to the high court before his term is over.

What the Democrats must hope for, therefore, is to win the 2008 Presidential Election (no mean feat, that) AND have Stevens survive long enough to be replaced by a Democratic president. This means nothing, as there are multiple cases of justices countering the political persuasion of their respective appointers. Stevens was appointed by Ford, Kennedy by Reagan, Souter by G.H.W. Bush. They can go turncoat to the respective cause at any point.

Or, if you like it a bit less cynical, they truly fulfill their role as members of an independent judiciary, judging matters great and small on their merits and not as a "thank you" to the president that appointed them to a life term.

See, folks, that is the part that should REALLY worry you. One branch of the government that is headed by an unelected board of people who serve until they retire or die. A branch that was never intended to "legislate," but to make rulings on legislation and its concurrence with the law of the land.

In the end, it is again the system and not the situation that is unbalanced.