By Charles Lane
Washington Post Staff Writer
Tuesday, January 31, 2006
Should Samuel A. Alito Jr. be confirmed to the Supreme Court today, as expected, it will mark the beginning of a new Supreme Court era -- and, perhaps more important, the end of an old, familiar one.
For much of the past 24 years, Justice Sandra Day O'Connor, whom Alito would replace, has wielded the swing vote on a split court, usually casting her lot with the court's four other conservative justices, but siding with liberals on such crucial issues as abortion, affirmative action and campaign finance reform.
Alito's arrival, however, may turn the O'Connor Court into the Kennedy Court. If, as many expect, Alito forms a four-vote conservative bloc with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, that would leave Justice Anthony M. Kennedy -- a conservative who has occasionally voted with liberals on gay rights, the death penalty and abortion -- as the court's least predictable member.
"Assuming the predictions about Alito's views are correct, he turns Justice Kennedy into a swing vote on a lot of issues," said Pamela Karlan, a professor of law at Stanford University who teaches a course on the current Supreme Court.
No case illustrates the new dynamic better than the challenge to a Republican-drafted congressional redistricting plan for Texas, which the court will hear on March 1. The stakes in the case are huge and could include eventual control of the closely divided House.
The Texas plan, drafted at the request of then-House Majority Leader Tom DeLay (R) and rammed through the state legislature in 2003 over Democratic protests, created a first-ever majority-Republican congressional delegation to match the state's overall GOP voting preference.
But opponents say it was an unconstitutional, partisan gerrymander. The court has split down the middle on such claims in the past, with the four liberal justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- saying that the court can and should decide when partisanship goes too far.
Conservatives -- the late Chief Justice William H. Rehnquist, O'Connor, Scalia and Thomas -- said the courts should stay out of this political thicket.
Kennedy, however, said that he would not rule out the possibility that a partisan gerrymander could violate the Constitution, although such a plan had not yet been found.
On this issue, at least, Alito, who acknowledged at his confirmation hearings that he was a youthful skeptic about the court's past efforts to fix legislative districts in the name of "one person, one vote," could vote as O'Connor did. If, as expected, Roberts followed suit, that would leave Kennedy to decide the case.
Another issue on which Alito faced sharp questioning at his hearings -- presidential war powers -- is also on the court's docket. The key case is a challenge to President Bush's plan to try terrorist suspects at military tribunals.
A former aide to Osama bin Laden, Salim Hamdan, claims that his pending trial before a tribunal is unlawful because it has not been authorized by a statute or the Constitution. He also argues that the federal courts should be allowed to enforce his rights as a prisoner of war under the Geneva Conventions.
The Bush administration argues that the tribunals are based both on the president's constitutional powers as commander in chief and on the Sept. 14, 2001, joint congressional resolution authorizing the use of force to battle terrorists.
The administration prevailed in the U.S. Court of Appeals for the District of Columbia Circuit, in a decision joined by Roberts while he was still a judge on that court.
Roberts will have to sit out the case at the Supreme Court, leaving just eight justices to decide the matter.
The outcome is difficult to predict; in the past, court conservatives have splintered on similar issues, with Thomas lining up fully behind the administration, Kennedy and Rehnquist lending partial support, and Scalia actually joining with the court's most liberal member, Stevens, in rejecting the administration's claim that it could indefinitely hold a U.S. citizen captured in Afghanistan without charges.
One option for the court would be to dismiss the matter, citing a new law enacted by Congress that, in the administration's view, strips the courts of jurisdiction to hear challenges to the tribunals. But Hamdan's lawyers are resisting that.
The court will soon meet in closed-door conference to decide whether it should hear a case on the constitutionality of the federal law banning the late-term abortion procedure known by opponents as "partial birth."
The law, passed in 2003 and signed by Bush, has been struck down by lower federal courts. They cited a 2000 decision striking down state bans on late-term abortion -- a case in which O'Connor cast the fifth and deciding vote.
Alito opposed the court's abortion rights rulings as a young Reagan administration aide, and voted to uphold a state limitation on abortion rights in a 1991 case. But as a federal appeals judge, he applied Supreme Court precedent in striking down a New Jersey late-term abortion ban.
Also, the court will have to decide whether to hear the case of Jose Padilla, a U.S. citizen arrested and held in military custody without charges as an "enemy combatant." The Bush administration has recently turned him over to civilian authorities, but Padilla's lawyers say the constitutional issue is still alive.
If the court accepts either or both of the cases, it would probably hear them during the term beginning in October.