Reactions to the retirement of Justice Sandra Day O'Connor and debate over the president's replacement nomination, Judge John Roberts, Jr., of the D.C. Circuit, dominated this summer's Supreme Court recess. Subsequently, after Chief Justice William H. Rehnquist's death on September 3, 2005, President Bush nominated Roberts for the chief justice slot. (At press time, the president had not named a new nominee to fill O'Connor's impending vacancy.) Roberts, 50, is a magna cum laude graduate of Harvard Law School who clerked for then-Associate Justice Rehnquist early on in his career. Roberts has argued 39 cases before the Court, 25 of which he won. He is a conservative judge, and the subtext to much of the post-nomination analysis has been whether he would be likely to nudge the Court to the right if confirmed to the lifetime appointment.
In the 2004-2005 term, O'Connor provided the deciding vote in many of the 13 capital cases the Court decided, and her opinions have been described as a kind of "bridge" over the wide gulf between the Court's left and right factions in this area. (1) Looking at this and other battleground areas for the Rehnquist Court, legal analysts now find themselves asking, "What would Roberts have done?" That is, would a Justice Roberts have provided a more dependably conservative voice than Justice O'Connor did in her famed "swing vote" role last term?
Indeed, due in part to O'Connor's centrist influence, the 2004-2005 term had a markedly "moderate" hue in general, as the Court's conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) held together in only five of the 24 5-4 cases this term. In 19 of the 5-4 cases, one or more of the five conservatives broke ranks to vote with the more liberal justices. This represents a notable change from the previous two terms, when the five conservatives were united in nearly half of the 5-4 cases, and is also a departure from the levels of conservative unity observed in previous years of the Rehnquist Court. (2)
Outside the realm of capital punishment, where death-row defendants handed the states a string of defeats, prosecutors saw the Court overturn the criminal conviction of the accounting firm Arthur Andersen for shredding documents related to its work for Enron, but uphold the use of routine drug-dog sniffs at traffic stops in the face of Fourth Amendment challenges. In the civil arena, the Court rejected arguments advanced by federalism proponents who favor limits on the authority of Congress to regulate local activities, in a case involving medical marijuana. It also refused to block a local government's eminent domain action against a small-home owner who had sought protection under the Takings Clause in the Fifth Amendment, which restricts the appropriation of private property for public use.
But perhaps no cases better exemplified the justices' cautious approach-and the importance of each vote on the closely divided Court-than the two Ten Commandment cases in which the justices seemingly split the difference between the pro- and anti-display sides. In one 5-4 ruling issued on June 27, the justices declared unconstitutional the Ten Commandments exhibits hanging on the walls at two Kentucky courthouses. In another opinion issued the same day, they allowed a large, 6-foot-high granite Ten Commandments monument to remain on exhibit at the Texas Capitol.
Voting to join Justice Souter's opinion striking down the Kentucky courthouse exhibits in McCreary County v. ACLU of Kentucky, No. 03-1693, were Justices Stevens, O'Connor, Ginsburg, and Breyer. Justice Breyer then switched teams to cast the tie-breaking fifth vote needed to make the four McCreary dissenters (Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas) a majority who OK'd the Texas monument at issue in Van Orden v. Perry. No. 03-1500.
Justice Souter's opinion, striking down the Kentucky displays, acknowledged that, after Establishment Clause objections were raised in litigation, the counties had enlarged their Commandments' display to include other historical documents and symbols that played a role in the development of American law. …