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Supreme Court freshmen

July 02, 2006

THURSDAY WAS THE END OF the first term of the Supreme Court presided over by Chief Justice John G. Roberts Jr., but it was just the beginning of the debate about how the law of the land has been changed by the Roberts court. Our answer: So far, not very much.

As it does in every term, the court staked out new ground in some areas, including patent and business law, but continuity was more evident than change. The justices reaffirmed, or at least did not disturb, controversial precedents on abortion rights and the regulation of election spending.

Continuity was evident even in last week's dramatic decision invalidating the military commissions set up by the Bush administration to try suspected terrorists at Guantanamo Bay, Cuba. The 5-3 ruling echoed decisions two years ago holding that the president had overreached in the war on terror.

Less than a year ago, some liberal activists were warning that the confirmation of Roberts to succeed the late Chief Justice William H. Rehnquist would jerk the court unacceptably to the right. That critique was recycled a little more respectably when President Bush named Judge Samuel A. Alito Jr. to replace perennial swing vote Sandra Day O'Connor.

Both Bush appointees have lived up to their advance billing as conservatives. Moreover, in two cases that had to be reargued because the justices split 4 to 4, the substitution of Alito for O'Connor may have altered the outcome in a conservative direction.

Yet the seismic shift dreaded by liberals and dreamed about by conservatives hasn't occurred. Partly, that is because this was a transition year. Alito didn't join the court until halfway through the term, and O'Connor's colleagues sent her off into retirement as the author of that judicial rarity, a unanimous abortion opinion. (The nine justices agreed that the absence of a health exception in a New Hampshire parental-consent law didn't render the entire statute unconstitutional.)

But even when Roberts and Alito would have shifted the law dramatically, as they did in supporting a much narrower definition of wetlands subject to federal regulation, their colleagues balked. In that case, as in last week's decision on the commissions, Justice Anthony M. Kennedy, a moderate Ronald Reagan appointee, distanced himself from the conservative bloc. In other cases he voted with the conservatives, vindicating the observation that, just as the Rehnquist court was really the O'Connor court, the Roberts court is actually the Kennedy court.

Kennedy's influence is one explanation of why a Roberts-Alito counterrevolution failed to materialize. Another is the fact that neither of the new justices lived up (or down) to the popular characterization of them as clones of liberal boogeymen Antonin Scalia and Clarence Thomas.

For example, the new justices joined Kennedy last week in a Texas reapportionment case in leaving the door open to future constitutional challenges to "partisan gerrymandering" -- although, like Kennedy, they concluded that the Republican-friendly congressional map midwifed by former Rep. Tom DeLay didn't violate the Constitution. Scalia, joined by Thomas, said such challenges could never be the judiciary's business.

Alito went some way toward refuting his nickname of "Scalito" by rejecting Scalia's pet theory: that in interpreting acts of Congress, the courts should not take account of legislative history.

Even allowing for these differences, it would be foolish to deny that, especially with the Alito appointment, Bush has succeeded in moving the court somewhat to the right. But Supreme Court nominations -- consequences of presidential elections -- often lead to realignment. President Clinton's appointment of Ruth Bader Ginsburg to replace Byron White moved the court somewhat to the left. Such adjustments are no reason for senators to balk at highly qualified nominees such as Roberts, Alito or Ginsburg.

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