The United States Supreme Court began its 2004-05 term with the same nine justices who have served together since 1994. Going 10 years without any change in court membership has not previously occurred since the early 1820s. But now the increasing age of the justices alone — Chief Justice William H. Rehnquist has just turned 80 and is in failing health, and senior Associate Justice John Paul Stevens is 84 — virtually ensures that the president will be able to nominate at least two new justices during the four-year term that commences on January 20, 2005.

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Indeed, President Bush may very well get to choose more than two. Justice David H. Souter, the court’s second-youngest member, just celebrated his 65th birthday, leaving only 56-year-old Justice Clarence Thomas as the court’s one non senior citizen. Justices Sandra Day O’Connor, now 74, and Ruth Bader Ginsburg, 71, are the other most likely retirees during this new presidential term. Justices Antonin Scalia and Anthony M. Kennedy are now both 68 years old, and Stephen G. Breyer, who has now served 10 full years as the court’s ‘junior’ justice, is 66.

News media speculation over which justices will be the first to retire, however, diverts attention from the far more notable and consequential change that the court’s composition quietly has undergone over the past four decades. From President Franklin D. Roosevelt in the late 1930s through his successor, Harry S. Truman, Republican Dwight D. Eisenhower in the 1950s and Democrats John F. Kennedy and Lyndon B. Johnson in the 1960s, the predominant pattern in Supreme Court nominations was for presidents to select highly experienced national-level political figures. Since 1969, however, that practice has changed dramati-cally as another series of presidents — Republicans Richard M. Nixon, Gerald R. Ford, Ronald Reagan and George H.W. Bush, plus Democrat Bill Clinton — have almost without exception named little-known appellate judges to the court.

The resulting transformation of the Supreme Court has been dramatic indeed, even if the change is one that daily news accounts almost never highlight. Much critical commentary about the court, for well over a decade now, from liberals and conservatives alike, has consistently highlighted the self-aggrandizing expansion of the court’s own power, both in federalism cases that have significantly curtailed Congress’ legislative authority and in abortion, gender discrimination and gay rights rulings. Such conservative justices as Scalia, Thomas and Chief Justice Rehnquist have been eager to assertively exercise the court’s power in federalism decisions that have insulated the states from the effects of congressional regulatory legislation, and liberal jurists such as Stevens, Souter, Ginsburg and Breyer have done likewise in abortion and gay rights cases where the conservatives are in dissent.

But the Supreme Court’s two dominant’swing’ justices, O’Connor and Kennedy, have been quite comfortable in joining both liberal and conservative rulings that are undeniably assertive. This consistent pattern has given the lie to the outdated but commonplace notion that only liberals are ‘judicial activists’ whereas self-described conservatives are’strict constructionists’ who minimize the exercise of judicial power. On today’s U.S. Supreme Court, judicial activists hold all nine seats, and only the substance of a particular case, rather than the justices’ over-arching principles, determines whether the court’s assertiveness is pigeonholed as ‘liberal’ or ‘conservative’ by media commentators.

Perhaps it should not be surprising that a Supreme Court composed almost exclusively of career jurists is so consistent in advancing the reach of judicial power. Of today’s nine justices, all except Chief Justice Rehnquist were already serving on other appellate tribunals when they were nominated to the high court. (At the time of his 1971 nomination, Rehnquist headed the U.S. Justice Department’s legal policy office.) Seven of the justices were promoted from the federal courts of appeal; O’Connor was serving on Arizona’s appellate court when President Reagan named her as the first female justice in 1981.

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