Anthony Kennedy, John Paul Stevens, John Roberts, Antonin Scalia, David Souter, Stephen Breyer, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito
J. Scott Applewhite  /  AP FILE
Members of the Supreme Court sit for a portrait last year, with Chief Justice Roberts center in front row and Justice Alito, far right in back row.
By Tom Curry National affairs writer
msnbc.com
updated 6/18/2007 11:13:52 AM ET 2007-06-18T15:13:52

Iraq remains chaotic and immigration overhaul faces an uncertain fate.

But if President Bush wants to sing the old tune, “They can’t take that away from me” he can turn to the Supreme Court where his appointees Chief Justice John Roberts and Associate Justice Samuel Alito sit.

As the high court nears the end of its 2006-2007 term, the impact of Bush’s appointees is becoming clearer.

In high profile-decisions, Roberts and Alito have bolstered the conservative wing, which includes Justices Antonin Scalia and Clarence Thomas and occasionally Justice Anthony Kennedy.

Former Reagan administration Justice Department official Doug Kmiec, who is professor of constitutional law at Pepperdine University, said, "The headline of the term so far" is that "Anthony Kennedy in the presence of John Roberts and Sam Alito has rejoined the Reagan judicial philosophy." (President Reagan nominated Kennedy to the court in 1987.)

Roberts-Kennedy alignment
"Justice Kennedy and the chief justice are thinking along similar lines," Kmiec said. "I don't think that's an accident. I believe it is a conscious result of the respect the new Chief Justice has given Justice Kennedy and the simple fact that they like each other."

He added that when Justice Sandra Day O'Connor, whom Alito replaced, was on the court, "Kennedy was largely in conversation with her. She was the one with whom he would bargain over terminology. In her absence, Justice Kennedy, of course, has been pursued by both sides of the court, but in virtually every case, Justice Kennedy has discovered that he is more in affinity with the Roberts-Alito side of legal thought." 

Marcia Greenberger, the co-president of the National Women’s Law Center, which opposed the Alito and Roberts nominations, lamented O'Connor's retirement.

“In the past, O’Connor often made the majority and Kennedy was part of the dissent, so we have clearly seen a shift to the right, in areas from criminal law to privacy rights for women," she said. "Roberts and Alito have reliably and consistently been on the conservative end with Scalia and Thomas, and that was not the case with O’Connor. This was our great concern (during their confirmation hearings).”

Another opponent of the Alito and Roberts nominations, Nan Aron of the Alliance for Justice, said, “on the hot-button issues so far, Justice Alito and Roberts almost always join each other and almost always side with Justices Scalia and Thomas to form what’s become the court’s new hard-right flank.”

Not all controversial decisions
Not all of the Supreme Court’s decisions this year have been headline-making or ideologically charged.

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Of the 64 decisions for the 2006-2007 term which the court has handed down as of Monday, nearly one-quarter have been unanimous.

Another seven were brief, unsigned summary decisions in which there was no dissent.

So far, there have been seven 5-to-4 decisions in which the conservative justices have united to prevail over the more liberal minority of Justice Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens.

And of course, Roberts and Alito haven’t always been on the winning side: They were both on the losing end of April’s Massachusetts v. Environmental Protection Agency ruling, written by Stevens, that said the EPA has the authority to decide whether greenhouse gases from new cars contribute to climate change.

But several of the 5-to-4 decisions in which Roberts and Alito were in the majority have been on politically explosive topics:

  • Abortion: In April, the court, in a ruling written by Kennedy, upheld a federal law banning a specific abortion procedure, called “intact dilation and evacuation” or “partial-birth abortion.” The justices said the statute was not invalid on its face, but could be challenged in specific cases in which a woman could show it would violate her rights under the court’s previous abortion rulings, such as Roe v. Wade.
  • Alleged sex discrimination: Last month, the court, in a decision called Ledbetter v. Goodyear, written by Alito, ruled that a woman who’d alleged sex discrimination in pay had missed the deadline for filing her claims.  
  • Death penalty: Last month in upholding the death sentence of a man convicted of murder in Washington state, the court, in a ruling written by Kennedy, said that trial judges could exclude potential jurors who voiced qualms about capital punishment.

“The biggest effect of the Roberts and Alito for O'Connor and Rehnquist swap has been to make Justice Kennedy, rather than Justice O'Connor, the swing vote that decides most of the big, contentious issues before the Court,” said Curt Levey, the executive director of the Committee for Justice, a group which supported the Roberts and Alito nominations.

The crucial cases, he said, are those in which O'Connor and Kennedy would have voted differently.

“By far, the most dramatic example of that difference is the partial-birth abortion decision, where Kennedy voted to uphold what O'Connor would have very likely struck down,” said Levey. “An equally dramatic example will likely be provided in the next couple of weeks, when the court rules on the Seattle and Louisville K-12 race-based admissions cases.”

Based on their votes in the 2003 University of Michigan racial preferences cases, Levey said, Kennedy would likely vote against using race in assigning students to schools, and “O'Connor probably would have upheld” the school assignment plan.

Also, because “O'Connor had a liberal streak when it came to women’s issues, she probably would have voted with the four liberal justices in Ledbetter v. Goodyear,” Levey said.

Greenberger said the recent pay discrimination and abortion rulings “strike at the very heart of women’s autonomy, integrity, and ability to be full citizens in this country…. Women’s long-established rights, rights to bodily integrity and privacy, are unraveling. And that is a cause of enormous alarm.”

But Ed Whelan, a former law clerk to Justice Scalia and a former official in the Justice Department’s Office of Legal Counsel under Bush, dismissed the pre-occupation with the shift from O’Connor's views to Alito's.

“I don’t think Alito has some sort of obligation to mimic O’Connor any more than Justice Ginsburg had an obligation to mimic Justice (Byron) White,” whom she replaced in 1993. On abortion, White dissented from the 1973 Roe v. Wade ruling which legalized abortion, while Ginsburg supports it.

“We sure hope that Justice Alito’s replacement of O’Connor is going to improve the court,” Whelan said. “I think it has, but there’s room for a lot more improvement.”

Bush effect on appeals courts
While Bush may not get a chance to attempt more “improvement” by appointing another justice to the high court, he has named 49 judges to the courts of appeals. And that's significant because many cases never reach the Supreme Court.

With 13 appeals court vacancies, Bush is in the midst of standoff with the Democratic-controlled Senate Judiciary Committee over the nomination of Leslie Southwick to fill a vacancy on the Fifth Circuit.

Aron’s group has accused Southwick of being too partial to business interests and voting “consistently against consumers and workers.”

So far Southwick hasn’t been able to get a vote on the Senate floor.

For both Southwick and the president who nominated him, the clock is ticking toward the end of the Bush era for the federal judiciary.

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