WHITHER THE POST-O'CONNOR COURT?
Presser, Stephen B.
HAT IMPACT WILL SAMUEL ALITO have o n 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...
...If Mito goes further to the right than did Sandra Day O'Connor, there is every reason to believe that Justice Kennedy will compensate and seek mainstream media approval by moving to the left...
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...Even so, the incorporation doctrine-which allows the federal courts to dictate to the states in matters of speech, religion, criminal procedure, and several other areas-is firmly entrenched in Supreme Court jurisprudence, and has myriad defenders in the legal academy...
...U NDOUBTEDLY MANY IF NOT MOST of the foes and the supporters of Mito took their positions because of what he might do in future cases involving abortion...
...Alito thought it was, the Court thought not, and Sandra Day O'Connor indicated her belief (in a plurality opinion in which she joined Justices Kennedy and Souter) that husband notification was an "undue burden...
...And though she dissented in Roper, she did not disagree with the point that world opinion could serve as a guide for the Supreme Court...
...With Sandra Day O'Connor's retirement one of the most visible judicial legislators departed the bench...
...Frank, age 85 walks two miles a day, plays golf, belongs to a dance club for seniors, has a girl friend again and doesn't need Viagra, passed his drivers test and is hardly ever home when we call-GIN delivers...
...This is far from assured, however, because the latest scholarship on the Fourteenth Amendment does suggest that its framers were eager to help out the former slaves, even if it meant giving them preferential treatment...
...It was also quoted in the 2003 Massachusetts Supreme Judicial Court opinion which found that Massachusetts could not prohibit gay marriage...
...An Alito vote might also be crucial in permitting the state or federal aid that is offered to public schools to be extended to religious schools, and, in particular, in upholding voucher plans that states could use to allow parents to send their children to public or private schools even if the latter are sectarian...
...Justice O'Connor was with Justice Kennedy in Lawrence...
...Still, Justice Kennedy voted with the dissenters in the 5-4 Stenberg v. Carhart case, which rejected a state statute barring the grisly partial birth abortion procedure, and Mito could be a swing vote to uphold a controversial federal statute doing the same...
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...There are only two provisions in the Constitution that expressly address the issue...
...Still, the mystery passage and the thought behind it are likely to be invoked in cases involving gay marriage or plural marriage, as well as the right to die, and where Alito stands on these issues may well determine the outcome of these cases...
...Again, however, what will be done in the abortion area is probably more dependent on what Kennedy will decide to do, or whether one of the four liberals retires, than it is on Justice Alito...
...Other abortion disputes likely headed to the Court are the constitutionality of measures requiring that women seeking abortions be given information 16 THE AMERICAN SPECTATOR MAY 2006 STEPHEN B _9 PRESSER that by doing so they are terminating human lives, or supplying photographs or other data of the fetus at the gestational stage of the pregnancy being terminatedas well as other matters involving the state supervision of abortion clinics, parental notification, and a host of other concerns...
...There is, of course, no constitutionally mandated separation of church and state...
...An Mito vote could be important in sending a signal that overreaching such as SarbanesOxley should be closely scrutinized...
...For her, judging was about finding two or more conflicting policies involved in a case, and opting for the one she personally favored...
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...Either way, it originally applied only to Congress and not to the state and federal governments...
...Since then, only the Recent studies, however, have overturned this lucky and the rich have had access to it at the notion completely, discovering instead that cost of $20,000 US per year...
...This "incorporation doctrine," as it came to be called, would have astonished the framers of the Bill of Rights, since their concern was an overweening federal government, and the preservation of a maximum allowance for the sovereignty of the states...
...The president of BIE Health Products, the Modern medical science now regards aging as adult for about the price of a coffee and donut American distributor, stated in a recent a disease that is treatable and preventable and a day...
...T HE MOST OBVIOUS AREA MAY BE in matters of race...
...We can probably expect more decisions upholding publicly sanctioned religious displays, such as creches or Menorahs on municipal property, or the Ten Commandments themselves...
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...This is even more maddeningly obscure than the "undue burden" standard, but it seems to suggest that anything involving morals, at least, is offlimits for legislation, and it seems to evince a radical individualism that dominated the American academy and much of American society in the 1960s, 1970s, and 1980s...
...penalty for juveniles, Roper v. Simmons (2005...
...Oddly, the answer may lie as much with Justice Anthony Kennedy as with Justice Alito himself...
...Justice Mito (and Chief Justice Roberts) indicated in their hearings some skepticism about this trend, and even though Justice Kennedy may still seek to spearhead it, it is possible that Justice Mito may resist efforts to impose the increasingly secular and possibly amoral views of Europe on America...
...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...
...Not more than a handful ofpersons teaching in law schools would label the incorporation doctrine as one of the great judicial usurpations of our time, though it almost certainly is...
...Nevertheless, through an exercise ofjudicial gymnastics, in the first An Aiito vote might also be crucial in permitting the state or federal aid that is offered to public schools to be extended to religious schools, and, in particular, in upholding voucher plans...
...Alito could conceivably be another, although his announced respect for Supreme Court precedents might prevent this...
...Sarbanes-Oxley is an exceptionally ill-conceived statute that not only imposes costs on American industry probably far beyond any disclosure benefits that will be received, but also arguably attempts to federalize and control corporate accounting and corporate organization, matters that have traditionally been left to state law...
...Beliefs about these matters could not define the attributes of personhood were they found under the compulsion of the state...
...She could generally be counted on to enforce a fairly strict separation of church and state, and most notably was among the four-person bloc that opposed any display of the Ten Commandments on public property...
...This, of course, will not be enough to overturn the decision...
...While there are still five Justices who have upheld Roe (Stevens, Kennedy, Souter, Breyer, and Ginsburg), there may now once again be four solid votes against it (Scalia, Thomas, Roberts, and Alito...
...This would mean, of course, that Alito's appointment would be more-orless nullified...
...The position of the Court's two consistent conservatives, Scalia and Thomas, has been that our Constitution ought to be interpreted only in accordance with American precedents, and that it is not the job of the Court to attune American practice with that of emerging jurisprudences abroad...
...The Court indicated that the state of Pennsylvania could impose certain restrictions on abortion, could discourage the practice, could require that particular information be supplied, and could impose a waiting period, and differed with Alito only over the question of whether Pennsylvania's husband notification provision (the husband had to be notified if a wife sought abortion unless she feared physical harm from him) was constitutional...
...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...
...Like a picked flower cut from the source, we gradually wilt physically and mentally and become vulnerable to a host of degenerative diseases, that we simply weren't susceptible to in our early adult years...
...Thus affirmative action that involves counting by race may actually be consistent with the original understanding of the Fourteenth Amendment...
...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...
...IfAlito takes a conservative position where O'Connor took a liberal one, what might change...
...But Alito replaced the notoriously indecipherable Sandra Day O'Connor, and so his impact is seen to be potentially greater...
...At least one Supreme Court Justice, Clarence Thomas, appears to have come close to questioning it, though...
...Justice Kennedy was on the pro-Ten Commandments side in the recent cases that rejected recently mounted Ten Commandments displays but permitted longstanding ones...
...That clause could mean simply that Congress was not supposed to establish a particular sect as a national religion, as was done in England-this is most likely-or it could mean that the federal government was never supposed to do anything to encourage religion generally-which is the prevailing, although erroneous, view of the provision...
...with Mito's ascension we are likely to recover a bit more deference to the people's representatives in the state legislatures, and thus a bit more of republican government itself...
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...Analysts of these two opinions could see little if any difference between the two situations, as everyone knew that once race was taken into account it invariably became the deciding factor, and what the Michigan Law School was permitted to do was, for all practical purposes, the setting of racial quotas...
...Either way, the excesses of the incorporation doctrine-for instance, where it has been used to remove Ten Commandments displays from courtrooms, or to bar non-sectarian prayer at public school events such as graduations and football games-might prove to be too much for Alito...
...If Alito were to stake out a strictly originalist position on this issue, it is likely that there would be many more opportunities for state-sanctioned recognition of the important role religion has played in American public life...
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...continued on poge 20 MAY 2006 THE AMERICAN SPECTATOR 17 WHITHER THE POST-O'CONNOR COURT...
...Should the Court's oldest member, Justice Stevens, one of the most reliable members of the liberal bloc, choose to retire, however, and give President Bush one more chance to put a conservative on the Court, perhaps we might anticipate real change...
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...Alito's partisans pushed for his confirmation because he was regarded bythem as the anti- O'Connor, as a Justice who would impartially decide cases based only on the law rather than personal preference...
...Such surprises have continued to the present, by Stephen B. Presser 14 THE AMERICAN SPECTATOR MAY 2006 That's a question Justice Anthony Kennedy can best answer...
...In each of these areas the Court seems to have been moving in a pro-business, perhaps even anti-regulatory direction in recent years, usually by substantial margins, and an Mito appointment is not likely to alter the course of these developments...
...There has been much speculation that with O'Connor gone Kennedy will more frequentlyvote with the fourperson liberal bloc (Justices Stevens, Souter, Ginsburg, and Breyer), and that he will simply step into the role formerly played by O'Connor...
...Probably aware of how close to hypocrisy she was treading, Justice O'Connor blithely announced that after 25 years there should be no need to take race into account in any event, though there seems to be no reason to believe that within 25 years the gap between blacks and Hispanics on the one hand and whites and Asians on the other with regard to grades and board scores is likely to lessen significantly...
...tional...
...They include those having to do with private and public law questions involving matters such as the interpretation of federal environmental laws, the degree to which the states can permit punitive damages, the extent to which the federal government can impose controls over the state litigation process, and the extent to which the federal government can dictate the internal affairs of corporations...
...B ELOW MOST OF THE MEDIA'S RADAR a r e decisions of the Supreme Court which are no less important to America than the ones involving race, religion, or abortion...
...half of the 20th century, the United States Supreme Court began to declare that because the Fourteenth Amendment forbade the states from denying any person the equal protection of the laws or taking any person's life, liberty, or property without due process, or denying any person the privileges and immunities of United States citizenship, this somehow meant that the prohibitions on the federal government included in the Bill of Rights (the first Ten Amendments to the Constitution) should now be extended or incorporated as prohibitions on the governments of the states and localities...
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...If Alito's jurisprudential philosophy is that of an originalist, as seems to be assumed, he could be persuaded to uphold affirmative action instead of condemning it...
...The Court has already rejected the apparent implications of the mystery passage to support a general "right to die," but this issue will likely come before the Court again, as it continues to examine legislation in particular states that permit assisted suicide, as it recently did in Gonzales v. Oregon (2005), a 6-3 decision, written by Justice Kennedy, which upheld Oregon's assisted suicide statute on the narrow ground that the United States Attorney General had no authority to interfere with it...
...Unfortunately, however, once Justices ascend the bench inside their Marble Palace on Capitol Hill, their jurisprudence seems pretty much up for grabs...
...One is the requirement that there be no religious test for national office, and the other is the provision of MAY 2006 THE AMERICAN SPECTATOR 15 WHITHER THE POST-O'CONNOR COURT...
...Justice Alito, who has had several opportunities as a lower court judge to try to come to grips with these uncertainties, would be in an excellent position to clear up some of these difficulties, if not to overrule Roe altogether...
...Justices have been unpredictable almost from the republic's beginning...
...Also with the failure of Congress to honor our seniors with pharmaceutical coverage policy, it's more important than ever to take pro-active steps to safeguard your health...
...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 socalled "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...
...While Alito dissented from his court's opinion in that case, the United States Supreme Court actually reversed the Third Circuit, and, in effect, upheld most of Alito's dissent...
...With the confirmation of Mito and Roberts, we can only hope, we have taken some important steps back toward recognizing that when Justices restrain themselves to interpreting the Constitution as the framers and the ratifiers intended we preserve selfgovernment, and when Justices legislate we lose it...
...Justice Kennedy is thought to be the author ofthe passage, and invoked it, for example, in Lawrence v. Texas, the 2003 opinion which found statutes barring consensual homosexual sodomy to be unconstituThe Court has already rejected the apparent implications of the mystery passage to support a general "right to die," but this issue will likely come before the Court again, as it continues to examine legislation in particular states that permit assisted suicide...
...when Republican presidents from Nixon onwards have sworn they would appoint only Justices who would overturnRoe v. Wade...
...Unless Kennedy switches sides on the issue, a Justice Alito could move the Court toward permitting all Ten Commandments displays, at least where they are accompanied by other historical religiously neutral documents...
...It is probably widely understood that a Justice Alito could adhere to the currently orthodox conservative position that our Constitution is color-blind, thus rejecting allowing race to play any role in college admissions, or any other governmental distinctions...
...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...
...Just as Justice Kennedy may have been inventive, if not excessively bold, in promulgating the mystery passage, he seems to have been in the forefront of the Court in borrowing from the jurisprudence of other Western nations...
...Soon the United States Supreme Court may have an opportunity to judge the constitutionality of Sarbanes-Oxley, a federal statute passed in the wake of the Enron, WorldCom, and Andersen imbroglios...
...the First Amendment that "Congress shall make no law respecting an establishment of religion...
...Lately the most prominent victim of the Greenhouse effect appears to be Justice Anthony Kennedy...
...In 1812, for instance, President James Madison put the purportedly Jeffersonian Joseph Stow on the Court, but Stow turned out to be its firmest Federalist...
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...There would then be potentially five votes for overturning Roe v. Wade, and a reliable majority for changing rulings in establishment clause, affirmative action, and federalism cases in a manner more in accordance with the original understanding...
...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...
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...Precisely why that was the case was, of course, murky, but it seemed to have something to do with the now famous "mystery passage" enunciated in the Casey plurality opinion: "At the heart of liberty is the right to define one's own concept of existence, of the universe, and of the mystery of human life...
...In the end, however, the Mito nomination is probably not going to result in a dramatic change of course for the Court, whatever the partisans on both sides of his confirmation battle believed...
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...Justice Alito seems to be a man grounded in faith and tradition, and it is difficult to believe that he would subscribe to the "mystery passage...
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...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...
...Planned Parenthood v. Casey (1992), the key decision that preserved Roe, was in fact, an appeal of a decision rendered by the United States Court of Appeals for the Third Circuit, the bench on which Judge Alito sat...
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...She was among the Justices who declared that racial set-asides in state and local contracting were impermissible...
...Instead they have stacked the Court with pretty reliable liberals committed to upholding that decision...
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...He did this inLawrence v. Texas, and in the recent case barring the application of the death If A lito goes fu rther to the right than did Sandra Day O'Con nor, there is every reason to believe that J ustice Ken nedy will compensate and seek mainstream media approval by moving to the left...
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...Stephen B. Presser is the Raoul Berger Professor of ii Legal History at Northwestern University School of i Law and the Legal Affairs editor at Chronicles: A Magazine of American Culture...
...Justice O'Connor had been with the Court's majority in several important cases finding racial lines drawn by the government to be unconstitutional...
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...S ANDRA DAY O'CONNOR was also a swing vote in several of the cases involving religion in the public square...
...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...
...It also probably would have surprised most, if not all, of the authors of the Fourteenth Amendment, who apparently did not believe that they were engaged in a wholesale effort to remake the powers of the state and federal governments...
...What the Supreme Court has said on abortion is virtually incoherent, and the lower federal courts find it maddening to administer the now dominant standard promulgated by Justice O'Connor that no state may impose an "undue burden" on a woman's purported right to seek an abortion, as no one knows what burdens are "undue...
...remarkable degree...
Vol. 39 • May 2006 • No. 4
