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.

Specifically, the justices will limit the federal ban to "D&X," or dilation and extraction, abortions, the most grisly late-term procedure, and exempt "D&E," or dilation and evacuation, abortions, which are much more common. The Court may also carve out an exception to the ban for those exceedingly rare cases in which more than a few medical experts consider D&X safer than D&E. The justices will narrow but stop short of overruling the 2000 Nebraska decision.

During the argument on this case, Roberts seemed to be pushing for a narrow interpretation of the federal ban. Such a split-the-difference approach might appeal to the conflicted Kennedy; he is the fifth pro-Roe vote, but he wanted to uphold the Nebraska "partial-birth" ban. In future cases, the justices will narrow Roe v. Wade (as they started doing in 1992) but strike down any state laws making it difficult for most women to get abortions.

Race. The justices have already cast their votes in a major race case. During a December 4 oral argument, five member of the Court seemed poised to strike down programs that promote integration in the Louisville, Ky., and Seattle school systems by considering students' race in assigning them to schools. The Alito-O'Connor swap will prove decisive here as well.

But will the Court issue a broad declaration casting grave doubt on the constitutionality of all government affirmative-action preferences? Or will it hand down a more fact-bound ruling that these two programs are not "narrowly tailored" enough?

I predict a narrow ruling. That's the direction Kennedy, who in the past has joined conservatives on racial issues—with reservations—seemed headed during the argument. And while Roberts and Alito clearly don't like racial preferences, they do preach judicial restraint. So I'd be surprised to see either, let alone both, join Scalia and Thomas in an absolutist, color-blind-Constitution assault on affirmative-action programs and precedents.

I also predict that in years to come the Court will strike down some but not all governmental preferences based on race, while sharply limiting the 2003 O'Connor opinion that has been the high-water mark for affirmative action. This 5-4 decision upheld the very large preferences used by the University of Michigan's law school.

The new justices will circumvent this precedent without overruling it. That won't be hard to do. They need only take seriously the logic of a related 5-4 decision issued on the same day. It struck down the similar but less-well-camouflaged preferences used by Michigan's undergraduate school. All eight justices besides O'Connor saw her distinction between the two programs as cosmetic and logically incoherent. So a conservative (or liberal) majority could use either precedent to trump the other.

Religion. Alito and Roberts will probably strike down fewer holiday nativity scenes, Ten Commandments displays, and student-initiated prayers than the O'Connor Court did. The Pledge of Allegiance ("under God") is safer now. So are publicly funded vouchers for students to attend religious and other private schools.

But this would hardly be a lurch toward theocracy. The Court's religion-clause precedents are a logically inconsistent mishmash of mushy moderate compromises. O'Connor upheld vouchers and tipped this way or that in other cases based on minute distinctions. Kennedy, too. He would block any dramatic move to the right. And neither Alito nor Roberts seems bent on making one.

Gay rights. For all of the sound and fury, the Court is not the most important actor here. It has no power to review states' same-sex marriage laws and—barring a liberal takeover—will not invent a federal right. It has issued a grand total of three rulings on the constitutional rights of gay people. All were of mostly symbolic importance. The third, in 2003, overruled the first by striking down the very few remaining state bans on homosexual sodomy. Five members of that majority remain. The new justices would not have joined them but won't go out of their way to overrule them.

Presidential power. Here, Alito and Roberts could make a big difference. They have manifested fairly broad views of presidential power. But they would need a fifth vote to prevail.

Since 2004, Kennedy has joined O'Connor and the four liberals in three rulings rebuffing Bush's sweeping claims of unilateral power over anyone he labels an "enemy combatant." Without yet confining Bush very much in practice, they have drawn lines that he may not cross. Those lines may not hold if one of the justices retires this year and if Bush can get his kind of nominee through the Senate. But the odds against both of those things happening are very long.

If you want to bet against these predictions, please send me yours. They will be sealed in a marble vault until July 2017 and then opened to pick winners and losers. Stakes and judges to be identified before unsealing. But although I lean to the Wittes view, I would not want to place a big bet against Greenburg. A hot-fudge sundae, perhaps?

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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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