The court's federalism revolution stalled, while the revival of property rights, which appeared to be taking off not long ago, crashed and burned on a riverbank in New London, Conn....
Justice Stephen G. Breyer displaced Justice O'Connor at the court's center of gravity, casting the fewest dissenting votes - 10, to Justice O'Connor's 11 - in the 74 cases that were decided with full opinions.
As the Rehnquist Court ended a 19th year and appeared poised, unexpectedly, to begin a 20th, it was almost as if a constitutional centripetal force had been at work in recent years, pulling the court back toward the middle in many areas of its docket, including federalism, affirmative action, religion and abortion. The result frustrated conservatives and raised the stakes for the appointment of Justice O'Connor's successor.
The court's six discrimination cases from this past term provide an example. Three were brought under the Constitution's guarantee of equal protection, and the others required an interpretation of three different federal statutes.
I think there really is "a constitutional centripetal force" that operates on the minds of the individuals that find themselves on the Court.
What does this say about whom Bush should pick to replace O'Connor? I think it will be hard for the newcomer to avoid the seductions of the center. The temptation to yield to the embrace of Stephen Breyer and Anthony Kennedy will be quite strong. But if Bush remains true to his campaign statements -- and why doesn't he owe that to his supporters? -- he will appoint a hardcore conservative who can resist the centripetal force. In so doing he will only increase the effect of the centripetal force on Justice Kennedy, transforming him -- as I said last Friday -- into a reliable liberal.