Whither the Post-O'Connor Court?

By Presser, Stephen B. | The American Spectator, May 2006 | Go to article overview

Whither the Post-O'Connor Court?


Presser, Stephen B., The American Spectator


WHAT IMPACT WILL SAMUEL ALITO have on the Supreme Court?

That's the big question among court watchers these days. Oddly, the answer may lie as much with Justice Anthony Kennedy as with Justice Alito himself.

The conventional wisdom is that new Chief Justice John Roberts will differ very little, at least philosophically, from his onetime mentor, the late Chief Justice William Rehnquist. But Alito replaced the notoriously indecipherable Sandra Day O'Connor, and so his impact is seen to be potentially greater. Both her critics and her fans were in agreement that O'Connor as a high court Justice pretty much functioned as the state legislator she once was. For her, judging was about finding two or more conflicting policies involved in a case, and opting for the one she personally favored. On more than one occasion, of course, she "found" a conflict to exist where, under the law and Constitution, none actually did, but where a competing principle that O'Connor liked could be manufactured and effectively written into law.

Alito's partisans pushed for his confirmation because he was regarded by them as the anti-O'Connor, as a Justice who would impartially decide cases based only on the law rather than personal preference. O'Connor was often the swing vote in cases involving race, religion, abortion, federalism, and the powers of the executive, and Alito has the potential to move the Court in a conservative direction on those issues (particularly those involving race, religion, and abortion) in which O'Connor sided with the liberals.

Unfortunately, however, once Justices ascend the bench inside their Marble Palace on Capitol Hill, their jurisprudence seems pretty much up for grabs. Justices have been unpredictable almost from the republic's beginning. In 1812, for instance, President James Madison put the purportedly Jeffersonian Joseph Story on the Court, but Story turned out to be its firmest Federalist.

Such surprises have continued to the present, when Republican presidents from Nixon onwards have sworn they would appoint only Justices who would overturn Roe v. Wade. Instead they have stacked the Court with pretty reliable liberals committed to upholding that decision.

No one knows why Republican Justices tend often to move to the left once they get on the Court, but the most popular explanation these days is the so-called "Greenhouse effect," which is the tendency of Justices to seek the approval of the reliably liberal mainstream media and, in particular, the most visible commentator on the Court, New York Times reporter Linda Greenhouse.

Lately the most prominent victim of the Greenhouse effect appears to be Justice Anthony Kennedy. There has been much speculation that with O'Connor gone Kennedy will more frequently vote with the four-person liberal bloc (Justices Stevens, Souter, Ginsburg, and Breyer), and that he will simply step into the role formerly played by O'Connor. This would mean, of course, that Alito's appointment would be more-or-less nullified.

But let's suppose that Justice Kennedy develops some immunity to the Greenhouse effect, and that he votes in future cases more or less the way that he has voted in prior ones. If Alito takes a conservative position where O'Connor took a liberal one, what might change?

THE MOST OBVIOUS AREA MAY BE in matters of race. Justice O'Connor had been with the Court's majority in several important cases finding racial lines drawn by the government to be unconstitutional. She was among the Justices who declared that racial set-asides in state and local contracting were impermissible; and she wrote some memorable lines in Shaw v. Reno, the case holding that racial gerrymandering was impermissible, on the grounds that drawing legislative districts by race, and seeking to ensure that blacks could elect black representatives, would result in the unfortunate racial balkanization of American politics.

And yet, it was O'Connor's swing vote in the two Michigan affirmative action cases that decided that "racial quotas" in college admissions were unconstitutional, but race could be taken into account (among other factors) in seeking to secure a "diverse" student body at law schools. …

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