Legal Affairs March 2007

The Supreme Court: Place Your Bets

A look at how the Supreme Court might change constitutional law on abortion, gay rights, and other big issues.
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A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O'Connor, a disagreement between two of the nation's best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country's judicial landscape in a generation ... with repercussions as yet unimagined," she predicts.

"I'm not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation's smartest legal editorials for The Washington Post, highly recommends Greenburg's book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

First, the gist of the Greenburg-Wittes debate: She foresees that the 56-year-old Alito will tip to the conservative side those big 5-4 decisions that O'Connor had tipped to the liberal side. In addition, she says, the 52-year-old Roberts is more persuasive, more energetic, and no less conservative than his predecessor as chief justice. Third, both new justices have such strong conservative principles and legal minds that they are unlikely to drift leftward as have other Republican appointees, including John Paul Stevens, O'Connor, Anthony Kennedy, and David Souter. But Roberts and Alito are also more collegial and less confrontational than conservative Justices Antonin Scalia and Clarence Thomas, and thus less likely to alienate their more moderate (and liberal) colleagues.

Wittes responds that an improbable number of stars must align to bring about a dramatic transformation. The Court still has only four conservatives, he points out. Kennedy, now the key swing justice, has voted with the liberals on four of the five hottest issues, as detailed below, and is only shakily allied with the conservatives on the fifth. Roberts and Alito, unlike Scalia and Thomas, have not so far acted like conservative warriors itching to mow down forests of liberal precedents. To the contrary, the chief justice says his goal is to promote greater consensus by deciding cases on narrow, relatively uncontroversial grounds.

Then there are the wild cards. While liberal Justices Stevens and Ruth Bader Ginsburg are 86 and 73 years old, respectively, Scalia and Kennedy are both 70. Who will outlast whom? And who will fill any vacancies?

A nice debate. But it's time for hard predictions. Here are mine, on the five (currently) hottest issues.

Abortion. The Roberts Court has already voted in a big abortion case, on the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. But we probably won't know who won until June.

Pro-choicers noisily fear, and pro-lifers hope, that the Court will uphold this congressional ban on a late-term abortion procedure likened by critics to infanticide because the fetus is destroyed when mostly outside the womb. In the process, many predict, the justices will overrule a major 2000 decision striking down a very similar Nebraska ban. O'Connor was the fifth vote then. Alito is now, and this will be the first salvo in a conservative assault on Roe v. Wade.

My predictions are different: The Court will indeed uphold the federal "partial-birth" ban—thanks to the Alito-O'Connor swap—but only by construing it so narrowly that it will have very little effect. And the Court will never overrule Roe v. Wade.

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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