The New 5-to-4
Supreme Court
By ADAM LIPTAK, Week
in Review, NYTimes on the Web, April 22, 2007
AFTER the 5-to-4 decision last week
in which the Supreme Court reversed course on abortion, upholding the federal
Partial-Birth Abortion Ban Act, many court watchers were wondering what to
expect next.
For guidance, law professors and Supreme Court specialists looked to lists of
5-to-4 cases in which Justice Sandra Day O’Connor, who retired last year, had
been the swing vote. One list, compiled by Martin S. Lederman at
Georgetown University, had 31 entries, with cases on religion and race,
elections and crime, medicine and free speech.
Last week’s abortion decision, Gonzales v. Carhart, demonstrated the
court’s new math. With the justice who took the O’Connor seat, Samuel A.
Alito, in the majority, and the new swing justice, Anthony M. Kennedy, writing
the decision, the court upheld, by a single vote, the abortion act.
Just seven years ago, Justice O’Connor voted with the court’s liberals to strike
down a similar Nebraska law banning the procedure, known medically as intact
dilation and extraction. It involves removing an intact fetus rather than
dismembering the fetus in the uterus. The decision recast the court’s approach
to abortion, shifting its emphasis toward fetal life and away from deference to
medical judgments about women’s health.
The decision last week brought into focus the greatest hopes of conservatives
and the worst fears of liberals. Is the court about to make sweeping
changes in important areas of constitutional law, including in decisions
expected shortly on the role of money in political campaigns and of race in the
schools?
“O’Connor was the swing vote in so many cases, especially in high-profile areas
like affirmative action, campaign finance and separation of church and state,”
said Erwin Chemerinsky, a law professor at Duke. “Sam Alito is likely to
bring about a change in all of those areas.”
In the coming months alone, the court is set to decide two important cases in
areas where Justice O’Connor played a crucial role.
One case considers whether the school systems in Seattle and Louisville, Ky.,
may take into account students’ race to make sure schools remain integrated.
Students in both systems are offered a choice of schools, but they can be denied
admission based on their race if enrolling in a given school would upset what
local school boards had determined was a desirable racial balance.
That is not precisely the same question as the one considered in Grutter v.
Bollinger, the 2003 decision in which Justice O’Connor, writing for a 5-to-4
majority, upheld a racially conscious admissions plan at the University of
Michigan’s law school. That case involved not integration, but affirmative
action, with the court allowing the government to give some groups a boost.
But the two cases are in the same doctrinal neighborhood, and the integration
cases will almost certainly give a powerful hint about where the court is
headed, not only on affirmative action but also on the use of race by the
government more generally.
In Grutter, Justice O’Connor said that society may need affirmative
action for another 25 years. Some legal scholars are betting that
Grutter will be modified or overruled before that expiration date.
On Wednesday, the court will hear arguments in another case that could start to
undo a part of Justice O’Connor’s legacy. In 2003, she was in the majority
in McConnell v. Federal Election Commission, which upheld the major
provisions of the McCain-Feingold campaign finance law, including restrictions
on some campaign-season television advertising paid for by corporations and
labor unions.
The new case considers that same ban in a particular context, in what lawyers
call an “as applied” challenge. An anti-abortion group, Wisconsin Right to
Life Inc., had sought to run television commercials criticizing a Senate
filibuster against President Bush’s judicial nominees and urging viewers to ask
the state’s two senators, one of whom was up for re-election, to permit the
nominations to come to a vote.
The Federal Election Commission says that the advertisements were thinly veiled
campaign commercials, while the group says they are just the sort of speech at
the core of what the First Amendment protects.
“If Alito takes the position of the dissenters” in the 2003 case, said Richard
H. Pildes, a law professor at New York University, “that would represent a
profound transformation in the power of Congress to reach campaign finance
practices. The betting line is that he’s likely to go that way.”
After the McConnell decision, Congressional power to drive money from politics,
even at the expense of free speech, had seemed settled. Only four years
later, the issue is back on the table.
Justice O’Connor also played a central role in religion cases, and in recent
years she had shown increasing skepticism in capital cases. It will not be
long, legal scholars said, before Justice Alito’s impact is felt in those cases
as well.
In 2005, Justice O’Connor was in the five-justice majority in a decision
invalidating the display of the Ten Commandments in a Kentucky courthouse.
When the issue next comes up, Professor Chemerinsky said, “there is every reason
to believe that Alito will join Scalia and Thomas” in allowing displays of
religious symbols on government property.
There is more to judicial decision-making than math, of course, and Justice
Alito and his colleagues on the court will rule based on the facts and arguments
presented to them. The court is, moreover, reluctant to overturn decisions
in any event under the doctrine of stare decisis, a Latin phrase meaning
“to stand by the thing decided.”
Indeed, in last week’s abortion decision, the majority did not overrule the 2000
decision and maintained that the Nebraska law was distinguishable from the
federal one. It is similarly unlikely that the court will overrule many of
the cases of the professors’ lists outright.
Nonetheless, there is probably no better guide to where the court is headed than
in a careful inventory of where Justice O’Connor has been.
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