It’s no secret that the next President could alter the ideological balance on the Supreme Court. The Court is so closely divided that the next appointment or two could produce a shift either to the liberal or to the conservative side. What’s less widely appreciated is that the current makeup of the Court so closely mirrors the nation’s divisions, with those at the center often striking so delicate a balance, that a dramatic shift in either direction would be quite unsettling for the body politic. With the Justices split 5-4 on affirmative action, racial gerrymandering, church-state relations, and states’ rights, a one-vote switch could, for example, virtually wipe out governmental use of racial preferences–or ensconce them more firmly than ever before. Roe vs. Wade hangs by two votes. And the next President’s appointments (if any) could make the Court far more conservative–or more liberal–on gay rights, the "right to die," campaign finance restrictions, feminist causes, and other ideologically charged issues. But thoughtful liberals should hesitate to wish for a Court bent on sweeping away laws requiring that parents be notified when their children seek abortions, or junking the military’s restrictions on women in combat, or striking down the death penalty (again). And thoughtful conservatives should hesitate to wish for a majority bent on eradicating the racial preferences used by most elite universities (and other institutions), or reinstating prayer in public schools, or overruling Miranda vs. Arizona (as the current Court has been urged to do in a pending case). The reason is that popular government works best when Justices use their powers sparingly and seek to foster and inform rather than to pre-empt democratic debate on the great issues of the day, and when they respect their own precedents. Such restraint comes most naturally to Justices who can see merit in both liberal and conservative perspectives. That’s why I, for one, hope to see Justice Sandra Day O’Connor, the Court’s quintessential moderate, continue her reign at its vital center through the next three presidential elections. In 2008, she’ll still be a youngster by Supreme Court standards–only 78. The current Court (including O’Connor) is often called "conservative" in news reports. But this is misleading. The Court is more conservative than the mostly liberal academics and reporters who follow its work. And it is aggressively conservative by any standard on states’ rights, a favorite cause of Chief Justice William H.

Rehnquist. But the Court’s three strong conservatives (Rehnquist, Antonin Scalia, and Clarence Thomas) are outnumbered by its four moderate liberals (Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens).

O’Connor and fellow moderate Anthony M. Kennedy thus control the outcomes on ideologically polarized issues. And on almost all of them (except states’ rights), O’Connor and Kennedy are either close to the center of public opinion or a bit left of center. Constitutional interpretation should not (and does not) turn on public opinion polls. But the jurisprudence of O’Connor and Kennedy reflects the same ambivalence on many hard issues of social policy that is reflected in the polls. When such ambivalence fosters judicial modesty and restraint, it’s not a bad thing. In a 1999 book titled One Case at a Time, professor Cass R. Sunstein (a liberal) of the University of Chicago Law School approvingly calls the approach embodied by O’Connor "judicial minimalism": "A minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions.

…It allows continued space for democratic reflection from Congress and the states. …[This approach is] admirably well suited to a number of issues on which the nation is currently in moral flux." To be sure, O’Connor and Kennedy often straddle hard issues to a point that seems maddeningly indecisive–sometimes even hopelessly muddled. Take the succession of 5-4 decisions in which O’Connor has demanded that states somehow limit, but not abandon, the consideration of race in drawing election districts. Her opinions provide so little guidance to lower courts that redistricting has almost become a guessing game as to how she will react to shapes on a map. But there’s a method to O’Connor’s muddle. By the early 1990s, efforts to balkanize the electorate into safe black, Hispanic, and white districts–and thereby benefit conservative white Republicans as well as liberal black and Hispanic Democrats at the expense of more-moderate politicians–had become all too pervasive. But mandating complete colorblindness in the intensely political redistricting process would have been neither realistic nor desirable. And it’s impossible to specify with clarity how much racial gerrymandering is too much. So the best O’Connor could do was to strike down a few extreme cases of gerrymandering. In doing so, she and the Court checked a dangerous drift toward electing by race. Similarly, O’Connor’s opinions for the Court on affirmative action have sent a salutary signal that governmental use of racial preferences must be temporary, limited, and supported by compelling justifications. But she also seems right to let the democratic process and the lower courts work out the details on a case-by-case basis, rather than to break suddenly with precedent (as the Court’s conservatives would do) and impose a broad and bitterly contested ban on a nation accustomed to gradualism in this area. While far from elegant, O’Connor’s approach has a commonsensical steadiness to it that may fit our times better than would the brilliance of a Louis Brandeis or the eloquence of an Oliver Wendell Holmes Jr. Of course, the idea that this Court practices "democracy-promoting minimalism" (in Sunstein’s words) draws hoots from critics who say that Roe vs. Wade, for example, invented a constitutional abortion right for the very purpose of sweeping aside democratically adopted laws. True enough. But the current Justices did not create that 1973 precedent.

They inherited it. And O’Connor and Kennedy rested their 1992 votes not to overrule Roe in large part on the need for stability in the law. The 1992 decision also came at a time when the majority of voters had apparently become satisfied with Roe and did not want it overruled. (Most voters now seem even more content with Miranda.) Similarly, while liberals fault the Court’s curbs on affirmative action as anti-democratic judicial activism, those rulings come far closer to what most voters say they want the law to be than do the rigidly preferential bureaucratic regimes–embedded in obscure regulations and statutes–that are sometimes produced by the lobbying of civil rights groups and their allies. The point here is that while the Court’s enforcement of constitutional rights operates as a check on elected officials, the results sometimes seem more consistent with the popular will than do the workings of legislatures and bureaucracies. As for the coming election, those of us who like the Court the way it is can comfort ourselves by taking the predictions of dramatic change with a grain of salt. After all, both abortion rights and affirmative action have (with modifications) already survived five Reagan and Bush appointees. Not much is likely to change if we elect a Democratic President and the liberal Stevens, who at 79 is the oldest Justice, retires on his watch. Or if we elect a Republican President and the conservative Rehnquist, who at 75 is the second oldest, retires. Nor is dramatic change inevitable even if the next President is presented with what looks like an opportunity to tip the Court’s balance by replacing a Justice from the opposing ideological camp. In that event, much would depend on whether the President had enough clout in the Senate to ram a strong conservative or a strong liberal (as the case may be) down the throats of impassioned adversaries. The last time the Court was at such a potentially historic tipping point was 1987. When Justice Lewis F. Powell Jr., the moderate swing voter of his own era, retired, President Reagan nominated crusading conservative Robert H. Bork, whose confirmation would (among other things) have doomed Roe vs. Wade. That touched off one of the most titanic–and mendacious–confirmation battles of all time in the then-Democratic Senate. It ended in a 58-42 vote rejecting Bork. That struggle ultimately led to the appointment of Kennedy, whose moderate credentials got him through the Senate. And when he got to the Court, not much changed.