With Justice Sandra Day O'Connor's announced retirement, one particular natural court, an unusually long-lived one, is coming to an end. The experiment has run its course: put nine justices together, add a healthy mix of some of the most challenging and contested issues of the day, and wait 11 years. Glance inside occasionally and find various revolutions in progress, portending major changes in federalism, religion and property rights.
But what finally emerged was something quite different: not revolutionary change but, in the end, continuity. In the interim, the period was dynamic, even tumultuous, but by the time it was over, the revolutions had fizzled or run their course, and the fervor appeared to have died. To the extent that there was basic change, it was to the left rather than the right: a firmer foundation for affirmative action, a constitutional framework for gay rights.
The challenge is to understand what happened. To the degree that it can be explained, the experience of this natural court might prove useful in predicting the nature of the next one, or at least in suggesting those attributes in a new justice that might be most likely to change the closely divided court, or to keep it running on the same course.
Many factors influence the court at any given moment. One is the quality of interaction among justices on a court where little can be accomplished without five votes. Another is the flow of cases and the issues they bring to the court's door. Still another, often too little appreciated, is the reality check the court receives from the lower courts that have to interpret and apply its decisions.
But the essential building blocks remain the individual justices themselves: not their résumés or even necessarily their records, but their own sense of identity and place in the mix of law, history and politics that is always swirling around the court.
"Sandra O'Connor temperamentally came out of the mainstream of American society, and that's true of this court as a whole," Paul Gewirtz, a professor at Yale Law School, said the other day. "This court has seen itself as not basically challenging American society as it found it."
Professor Gewirtz said that candidates for the court who "self-identify as critics of the court" are least likely to be changed by the experience of serving there, while "those who feel themselves connected to the basic trajectory of American law remain open to observing changes in society."
The first category is exemplified by Justices Antonin Scalia and Clarence Thomas as well as by Robert H. Bork, whose failed Supreme Court nomination in 1987 was a watershed event from which the political system has yet to recover. Their "originalist" jurisprudence starts from the premise that in the hands of the modern Supreme Court, the world has fallen away from the ideal - the Constitution as written by its framers - and their mission is to recover that world to the extent possible.
The Supreme Court's "combination of absolute power, disdain for the historic Constitution and philosophical incompetence is lethal," Mr. Bork wrote last week in The Wall Street Journal.
On the other hand, a brief essay that Justice O'Connor wrote in 1992, on the threshold of the period just ended, offers dramatic evidence of how service on the court can change another kind of judge. It was a tribute to Justice Thurgood Marshall, who had retired the previous year. During their 10 years of service together, Justice Marshall had influenced her "profoundly," Justice O'Connor wrote in The Stanford Law Review. The stories he told from his life spoke to her of "the power of moral truth" and had the capacity to "perhaps change the way I see the world."
These were surprising words from a conservative justice whose jurisprudence, at the time, showed few traces of Justice Marshall's influence. Nor did she necessarily offer her words as prophecy. But to a degree that few would have predicted at the time, they came true. Thurgood Marshall had been dead more than 10 years by the time a noticeably different Sandra Day O'Connor wrote the court's majority opinion in 2003 upholding affirmative action in university admissions.
The discomfort on the right with the prospect that President Bush might name his attorney general, Alberto R. Gonzales, to succeed Justice O'Connor stems from the fear that he, too, fits in the second category rather than the first. "The impression many conservatives have is that Gonzales is conventional in his legal thinking and unlikely to repair to first principles were he on the court," Terry Eastland wrote last week in the conservative Weekly Standard, calling for the attorney general to "take his name off the list for the Supreme Court."
Scholars looking for explanations for the last 11 years point as well to the influence that the lower federal courts exert on the Supreme Court. It is the lower courts that have to make sense of the Supreme Court's opinions and to apply them in new factual contexts. "It's a feedback loop," said Suzanna Sherry, a professor at Vanderbilt University Law School. "You see how your opinions are actually working. You see the problems they create. This court has signaled very clearly that it wanted to move in particular directions. Some of the lower courts took those directions and went further."
The feedback process may account for the Supreme Court's tacking back to the center in death penalty cases in the last several years. For example, a majority of the court had indicated quite forcefully that in evaluating habeas corpus petitions from death row inmates, federal judges should grant more deference to the conclusions of the state courts. But "deference does not imply abandonment or abdication of judicial review," Justice Anthony M. Kennedy said for the court in a 2003 case that ordered a hearing for a Texas death row inmate whose petition a federal appeals court had dismissed. Eight justices joined that majority opinion, with Justice Thomas the only dissenter.
"People have agendas, but one of the beauties of the court is that it has to shape itself around a set of facts in each case," said James J. Brudney, a law professor at Ohio State University.
Even if Chief Justice Rehnquist, 80 years old and ill with thyroid cancer, is on the bench when the next term begins, it would be no surprise if President Bush soon had another vacancy to fill. Far from lasting 11 years, the next natural court would then be measured in months, hardly long enough to solve the mysteries of the last one. The new court, too, will have its mysteries. "Every time a new justice comes to the Supreme Court, it's a different court," Justice Byron R. White, who served 31 years, liked to say. "It's a new instrument."