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First Monday, First Tuesday

The first Monday in October is opening day for the Supreme Court's year. When it comes to the future of the Court, though, the day that matters far more is Election Day.
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The first Monday in October -- today -- is opening day for the Supreme Court's year and the date most associated with Court. When it comes to the future of the Court, though, the day that matters far more is the first Tuesday in November, Election Day.

In the Senate debates over President Bush's nominees to the Court, John G. Roberts, Jr., and Samuel A. Alito, Jr., Republicans were fond of reminding Democrats, "Elections have consequences." They sure do -- as the last year on the Court proved. Roberts and Alito joined a conservative bloc that included Clarence Thomas, Antonin Scalia and (usually) Anthony Kennedy to rewrite the law in some of the Court's most crucial areas -- like abortion, school integration, and church-state relations. This year, there may be more of the same, as the Court is poised to take on such combustible topics as the constitutionality of gun control, the trials of the detainees at Guantanamo Bay, the new photo ID requirements for voters, and the permissibility of lethal injections for executions.

All of these changes, however, may look modest and preliminary if a Republican wins the next election. The next three likely departures on the Court all come from its embattled liberal wing. John Paul Stevens, David Souter, and Ruth Bader Ginsburg are all expected to leave the Court in the next few years. Conservative replacements will unite the Court in a way the nation has not seen since the mid-1960s, when Chief Justice Earl Warren led a phalanx of liberals. Of course, the Roberts Court would present an ideological mirror image of that increasingly distant epoch.

This is as it should be. The Constitution allows presidents to shape the Court in their images. All presidents try, and most succeed. Informed voters will recognize that they'll not only be choosing a president in 2008, but shaping the Supreme Court for decades to come.

Jeffrey Toobin is the author of The Nine: Inside the Secret World of the Supreme Court, which has just been published.