The New 5-to-4 Supreme Court
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.
Copyright 2007 The New York Times Company
One important case where Justice O’Connor was also the ’swing vote’, and that was not mentioned above, is the 2000 Presidential Election, Bush vs Gore.
With our complacent stupidity, we’ve allowed our country to become a sad, sick joke. Next year we’re going to elect a new Democratic president and solidify the congress, but we cannot bounce these moles off the court. We are stuck with them till they either retire or die.
If you voted Republican in the last 25 years, this is all your fault.
We must remember that everyone on the Supreme Court has been put there with Congressional approval. Not only do we need progressive leadership in the White House but be need to clean House (and Senate too). Hanging the Iraqi debacle around the necks of those who supported it must play a role in discrediting right-wing ideology along with “bread and butter” issues.
As we have seen with AG Gonzalez, who was “Congresionally Approved”; one can be disengenuous, skirt responsibility, and outright lie in front of Congress, much like Alito and Roberts did during their confirmation hearings.
If the court violated the public will (and vote) to place in, as Michael Moore termed it (Happy birthday Mike–tomorrow, that is!) a fictitious president, who then turns around and puts in persons who reflect his beliefs/position, it’s so far from democracy, such a breach against the founders ingenious governing model with checks and balances precisely to LIMIT this type of charde, that is all should be called illegitimate. Kinda’ makes you warn to storm the Bastille. Question is, since the persons in POWER, illegitimately PLACED there have been (by many) found out… what means is there to replace them? How is justice gotten from the unjust? Honor from those who have no inkling what it means? As Laurel and Hardy might say, “A fine mess you’ve got us into, Stanley…”
whoops.. charade, and want to storm the Bastille..
I’ve been feeling more and more that storming the Bastille may finally be our only option. Desperate times call for desperate measures. We’ve played by the rules and watched them cheat. We’ve been civil and respectful and watched them savage and brutalize us. We elected a Democratic Congress and watched as nothing meaningful has changed. It’s not working, we have to do something now or there’s not going to be another chance.
I may be 69, but I’m ready to storm any damn thing that will get this entire bunch thrown out. Jefferson said that we probably will need a revolution every 20 years. It’s been over 200 years, and the time is ripe. Let’s get off our duffs and act!
Before we start “storming” anything, let’s consider impeaching Justice Thomas.
In a book review of “Clarence Thomas: A Biography” by Andrew Peyton Thomas (no relation to the Justice), Ramesh Ponnuru wrote: “The book’s most newsworthy revelation is that — contrary to his 1991 testimony — Thomas had in fact discussed Roe v. Wade on several occasions, and concluded that it had been decided incorrectly. Nobody, not even his handlers, believed his claim never to have had such discussions. (The author reports that they were incredulous when he made the claim in their prep sessions.)” (See National Review, 12/3/2001 issue.)
It’s hard to imagine a clearer case of perjury. We all watched Thomas under oath, repeatedly denying that he had EVER discussed the case and refusing to comment on the merits of the decision or lack thereof.
I’ve waited 5 years for someone on the left to pick up on this shameful lie and run with it. Perhaps now that Thomas has had a chance to weigh in on Roe, a brilliant attorney who reveres the Constitution will get the ball rolling. Calling it a “high-tech lynching” won’t work for Thomas this time.
kittyladyoregon April 22nd, 2007 3:48 pm
“I may be 69, but I’m ready to storm any damn thing that will get this entire bunch thrown out. Jefferson said that we probably will need a revolution every 20 years. It’s been over 200 years, and the time is ripe. Let’s get off our duffs and act!”
Not quite 69 but ready to storm with you. Let the storming begin!
Start here: On Saturday, April 28, 2007, many “IMPEACHMENTS BY PROCLAMATION” will be taking place around the country. Check it out here and get your ass in gear:
http://www.a28.org/actions.shtml
Let this Congress know that you are serious about change in this country!
The Supreme Court has a long history of infringement against individual freedoms, just remember people like Homer Plessy, Gordon Hirabayashi, Fred Korematsu, and Dred Scot:
http://civilliberty.about.com/od/raceequalopportunity/tp/supreme_racism.htm
I wonder if it is possible to create a new amendment to the Constitution that would more clearly defines a woman’s freedom of reproductive choice? Would such a move be beyond political tampering?
Your country needs a good storm to wash that wallow of hypocrisy out of the capital.
Americans have allowed this zealot (and unelected) president to manipulate our rights by tolerating the senate’s acceptance of such unfit and dangerous justices, among countless other abuses including countless sellouts including manipulation of science to impede environmental reforms.
Americans have only themselves to blame for this.
Defect to the Green Party.