The New 5-to-4 Supreme Court

The New York Times
Entrances and Exits
The New 5-to-4 Supreme Court
By ADAM LIPTAK

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.