The Supreme Court's 2006 term wrapped up last week. What has it told us about the new kids in class, Chief Justice John Roberts and Justice Samuel Alito?
1. They're very much alike.
When Chief Justice John Roberts was nominated, he was approved by a 78-22 margin that included half of Senate Democrats. Among his supporters was Senator Patrick Leahy (D-VT), one of the Senate's leading civil liberties watchdogs.Compare this to the nomination of Justice Samuel Alito, who squeaked by 58-42 after a threatened filibuster.
The perception at the time was that Alito, nicknamed "Scalito" by critics, would be a virtual clone of Justice Antonin Scalia. Meanwhile, Chief Justice John Roberts, a noted consensus-builder, was perceived as more of a moderate conservative, a la Justice Anthony Kennedy.
In reality, they agreed on 92% of this year's rulings. Where they did disagree, Roberts generally took the more conservative position.
2. They do not fit the Scalia-Thomas mold.
No case sums this up more clearly than Gonzales v. Carhart, the "partial birth abortion" case. Yes, they agreed with Justice Anthony Kennedy in his narrow application of Casey v. Planned Parenthood's undue burden standard. This should surprise no one. What is somewhat more surprising is the fact that they did not join justices Antonin Scalia and Clarence Thomas in their concurrence challenging the Roe v. Wade standard. Chief Justice Roberts and Justice Alito performed exactly as advertised: They recognized Roe v. Wade as binding precedent, and applied it as such.Does this mean that they could apply the right to privacy in other cases, ranging from recognition of same-sex marriage to anti-cohabitation statutes? In a word, yes.
3. They could still prove problematic on civil rights issues.
So does this mean that they're moderates? Hardly. Look at the Parents v. Seattle ruling, for example.In Parents v. Seattle, a 5-4 majority held that two district's racial desegregation programs, those of Louisville and Seattle, overemphasized race to the exclusion of other factors.
But four of the five justices also issued a plurality ruling that made a much broader argument with respect to the boundaries of government racial desegregation programs. Joining this plurality were justices Alito, Roberts, Scalia, and Thomas. Departing from it was Justice Kennedy. Chief Justice Rehnquist would have joined the plurality, but Justice O'Connor probably would not have. The Court has become more conservative on civil rights issues.
4. They like corporations.
In a series of corporate-friendly rulings, the two new justices have helped big business in some pretty substantial ways. Could it be that this was the real reason they were chosen for the bench, despite ostensibly supporting the right to privacy precedent? It's worth considering. After all, look at the president who appointed them.5. We still have a lot to learn about them.
As we speak, newspaper op-eds are either praising or bemoaning the Supreme Court's perceived rightward shift. In reality, most of the Court's rulings this term represented incremental changes at most. No significant precedents were overturned outright, though several were reinterpreted in a slightly different way.Does this mean that the new justices are moderates? No; it just means that the current term has not given them opportunity to rock the boat. And to those who are already sure they know how these justices will establish their legacies, I have a three-word argument: Kennedy, O'Connor, Souter. Electoral politics may speak the language of first impressions, but the Supreme Court does not.
