Five to Four
by Jeffrey Toobin June 25, 2007
As George W. Bush staggers toward the conclusion of his second term, he can point to at least one major and enduring project that has gone according to plan: the transformation of the Supreme Court. In the next week or so, the justices will begin their summer recess. The first full term in which Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., have served together will thus be completed, and the changes on the Court, and their implications for the nation, have been profound.
The careers of Roberts and Alito have been emblematic of the conservative ascendancy in American law. Both men, shortly after graduating from law school, joined the Reagan Administration, where Edwin Meese III, who was for a time the Attorney General, and others were building a comprehensive critique of the Supreme Court under Chief Justices Earl Warren and Warren E. Burger. The conservative agenda has remained largely unchanged in the decades since: Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade, and allow states to ban abortion. As Alito wrote in an application for a Justice Department promotion in 1985, his work on abortion and race cases, among other Reagan Administration priorities, had given him the chance “to advance legal positions in which I personally believe very strongly.”
Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits. In a similar vein, the Court upheld a death sentence in Washington by lessening the scrutiny applied to jury selection in such cases. Last week, the justices rejected an appeal by a prisoner who had filed his case before a deadline set by a federal district judge. Because the judge had misread the law and given the prisoner too much time—three extra days—the Court said that the case had to be thrown out.
Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.
All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.
The Rehnquist Court had its share of divided rulings, of course—most notably, Bush v. Gore—but the new conservative ascendancy has prompted a striking reaction from the dissenting liberals, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. It has been the custom at the Court for dissenters to explain their views individually or in small groups; but this group, led by Stevens, the senior member of the Court, has taken to uniting around a single opinion, as if to emphasize a collective view that the majority is taking the law in dangerous directions. In the case about the missed appeal deadline, the dissenting opinion, by the usually mild-mannered Souter (who was joined by Stevens, Ginsburg, and Breyer), reflected true anguish: “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”
Ginsburg, who prides herself on her collegiality, has taken to reading her dissenting opinions aloud from the bench—a vigorous protest in the genteel world of the justices. In her dissent (also joined by the others) in the abortion case, she observed that in 2000 five justices rejected a Nebraska ban on partial-birth abortions that was nearly identical to the one the Court upheld this year. O’Connor was still on the Court and in the majority in the Nebraska case, so the only meaningful difference between then and now, as Ginsburg noted, is that the Court is “differently composed than it was when we last considered a restrictive abortion regulation.”
And that, ultimately, is the point. When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. Presidents pick justices to extend their legacies; by this standard, Bush chose wisely. The days when justices surprised the Presidents who appointed them are over—the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the Presidents who appointed them.
At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly. ♦