Barring a remarkable shift in the political landscape, Samuel Alito will succeed Sandra Day O’Connor as a justice of the United States Supreme Court. If, between this and the recent release of Chief Justice John Roberts’s first opinions, you’re examining Canadian real estate, I have a surprise for you.
There is no persuasive evidence either that Alito and Roberts sleep with visions of “Robert Bork’s America” dancing in their heads or that their appointments will result in a sharp rightward shift in Supreme Court decisions.
The press’ urgent need to keep the public interested in a slow-moving process, aided and abetted by a purely political attitude towards Supreme Court decision-making by many elected officials, has led the debate to be shaped in some fiercely irresponsible ways. Overextrapolation and oversimplification have ruled the day, painting an intricate picture of the future based on fundamentally flawed evidence.
Consider, for instance, the examination and quantification of the pair’s opinions as appeals court justices. From this, some would lead us to believe that we can determine the two judges’ philosophies and can safely contest that, for example, they would vote to overturn Roe v. Wade. Neither man’s judicial record conclusively suggests opposition to that right. Frankly, Roberts’s judicial record conclusively suggests hardly anything at all. Statistical analyses of their opinions, like that of Alito’s decisions published recently by The Washington Post, draw conclusions from inconsequential sample sizes, or worse, from the rhetoric of just one opinion. Neither judge has had the opportunity to make enough rulings on key issues for us to safely prophseize.
The analysis of the effect of the switch from O’Connor to Alito on the Court’s direction has featured some similarly superficial statements. The post-retirement deification of O’Connor seems to have led to an astoundingly simplistic error in right-to-privacy discussions. Even if one assumes that both Roberts and Alito are the Antonin Scalia clones that many have presumed them to be, the Federalist Society conservatives still only have four votes on the Court. On abortion rights, Anthony Kennedy would be the presumptive swing vote. While Kennedy is a Reagan appointee, he has endorsed the right to privacy in such notable cases as the limited abortion rights holding in Casey v. Planned Parenthood and in his majority opinion in the Lawrence v. Texas anti-sodomy law case. The holdings in these cases would likely remain the law of the land.
This oversimplified scenario would be disappointing enough to the Federalist Society. However, if this theoretical Borkian quartet engages in strategic opinion writing as described by legal scholars like Lee Epstein and Jack Knight, the conservative legal movement could still make progress on other fronts of constitutional law. But what if Kennedy begins to consistently find his interpretation of the law more in line with the loose constructionists? It is not hard to envision Stevens, Ginsberg, Breyer, and Souter regularly adopting compromises amenable to Kennedy and thus creating a controlling “liberal” voting bloc.
Constitutional interpretation in sound bites does not work. For instance, in this article I have followed the crowd and made reference to just one legal debate, that of substantive due process. At the very least, it seems that one more justice will have to retire before Roe is overturned. Where, then, is the serious discussion on how the new justices will affect the turn the Court has taken towards expanding the definition of cruel and unusual punishment? Will the Michigan cases still be the standard for affirmative action law? What about the tempestuous and varied debate on the First Amendment? Indeed, the most likely area for the Roberts Court to make truly significant turn could well be in the federal government–state government relationship, as opposed to the federal-individual realm that has been the focus of so much public attention. Unfortunately, this information has been lost in the need for politicians and the press to sell their points to America.
In our political climate and after a nearly unprecedented run of stability in Supreme Court personnel, it was likely that the replacement of two justices in less than a year would arouse more passion than prudence. But the legal world is a more complicated place than is being portrayed. The thinking of a Supreme Court justice is inevitably far more nuanced than one can draw out in the popular press. Over the coming months, it will be important to remember that and leave the writing of history to those with some sense of perspective.
