Roberts, Alito help define new Supreme Court

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - Iraq remains chaotic and immigration overhaul faces an uncertain fate.

But if President Bush wants to sing the old tune, “They can’t take that away from me” he can turn to the Supreme Court where his appointees Chief Justice John Roberts and Associate Justice Samuel Alito sit.

As the high court nears the end of its 2006-2007 term, the impact of Bush’s appointees is becoming clearer.

In high profile-decisions, Roberts and Alito have bolstered the conservative wing, which includes Justices Antonin Scalia and Clarence Thomas and occasionally Justice Anthony Kennedy.

Former Reagan administration Justice Department official Doug Kmiec, who is professor of constitutional law at Pepperdine University, said, "The headline of the term so far" is that "Anthony Kennedy in the presence of John Roberts and Sam Alito has rejoined the Reagan judicial philosophy." (President Reagan nominated Kennedy to the court in 1987.)

Roberts-Kennedy alignment
"Justice Kennedy and the chief justice are thinking along similar lines," Kmiec said. "I don't think that's an accident. I believe it is a conscious result of the respect the new Chief Justice has given Justice Kennedy and the simple fact that they like each other."

He added that when Justice Sandra Day O'Connor, whom Alito replaced, was on the court, "Kennedy was largely in conversation with her. She was the one with whom he would bargain over terminology. In her absence, Justice Kennedy, of course, has been pursued by both sides of the court, but in virtually every case, Justice Kennedy has discovered that he is more in affinity with the Roberts-Alito side of legal thought." 

Marcia Greenberger, the co-president of the National Women’s Law Center, which opposed the Alito and Roberts nominations, lamented O'Connor's retirement.

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“In the past, O’Connor often made the majority and Kennedy was part of the dissent, so we have clearly seen a shift to the right, in areas from criminal law to privacy rights for women," she said. "Roberts and Alito have reliably and consistently been on the conservative end with Scalia and Thomas, and that was not the case with O’Connor. This was our great concern (during their confirmation hearings).”

Another opponent of the Alito and Roberts nominations, Nan Aron of the Alliance for Justice, said, “on the hot-button issues so far, Justice Alito and Roberts almost always join each other and almost always side with Justices Scalia and Thomas to form what’s become the court’s new hard-right flank.”

Not all controversial decisions
Not all of the Supreme Court’s decisions this year have been headline-making or ideologically charged.

Of the 64 decisions for the 2006-2007 term which the court has handed down as of Monday, nearly one-quarter have been unanimous.

Another seven were brief, unsigned summary decisions in which there was no dissent.

So far, there have been seven 5-to-4 decisions in which the conservative justices have united to prevail over the more liberal minority of Justice Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens.

Make predictions on news events Bush will fill another Supreme Court vacancy

And of course, Roberts and Alito haven’t always been on the winning side: They were both on the losing end of April’s Massachusetts v. Environmental Protection Agency ruling, written by Stevens, that said the EPA has the authority to decide whether greenhouse gases from new cars contribute to climate change.

But several of the 5-to-4 decisions in which Roberts and Alito were in the majority have been on politically explosive topics:

• Abortion: In April, the court, in a ruling written by Kennedy, upheld a federal law banning a specific abortion procedure, called “intact dilation and evacuation” or “partial-birth abortion.” The justices said the statute was not invalid on its face, but could be challenged in specific cases in which a woman could show it would violate her rights under the court’s previous abortion rulings, such as Roe v. Wade.
• Alleged sex discrimination: Last month, the court, in a decision called Ledbetter v. Goodyear, written by Alito, ruled that a woman who’d alleged sex discrimination in pay had missed the deadline for filing her claims.  
• Death penalty: Last month in upholding the death sentence of a man convicted of murder in Washington state, the court, in a ruling written by Kennedy, said that trial judges could exclude potential jurors who voiced qualms about capital punishment.

“The biggest effect of the Roberts and Alito for O'Connor and Rehnquist swap has been to make Justice Kennedy, rather than Justice O'Connor, the swing vote that decides most of the big, contentious issues before the Court,” said Curt Levey, the executive director of the Committee for Justice, a group which supported the Roberts and Alito nominations.

The crucial cases, he said, are those in which O'Connor and Kennedy would have voted differently.

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