Analysis

Roberts Court Moves Right, But With a Measured Step

By Robert Barnes
Washington Post Staff Writer
Friday, April 20, 2007

The Supreme Court's decision signaling a significant reversal in the way it views government restrictions on abortion may also offer a glimpse of how the court under Chief Justice John G. Roberts Jr. will proceed on other controversial issues this term and in the future.

The five justices in the majority came up with an opinion that delighted abortion opponents and outraged abortion rights activists -- and yet, in the view of the court, did not overturn a single precedent or seemingly contradictory ruling.

"It's an interesting opinion, of course, because of what it says about abortion," said A. E. Dick Howard, a constitutional law professor at the University of Virginia. "But it also provides an interesting way of thinking about what the Roberts Court is going to look like."

What Howard sees in the decision is "an emerging conservative majority clearly willing to reconsider precedent and doctrine." But it also provided "an example of how the court is going to move to the right step by step," rather than by declaring bold breaks with the past.

That approach could figure into the court's coming decisions on school desegregation, campaign-finance laws and the ability of taxpayers to sue the Bush administration over giving funds to faith-based social service organizations.

Howard and others sorting through Wednesday's ruling upholding a federal ban on what opponents called "partial-birth" abortion found several common themes.

The impact of the retirement of the court's longtime swing vote, Justice Sandra Day O'Connor, and her replacement by the more conservative Samuel A. Alito Jr. was one. The often commented-upon but rarely overstated importance of the new justice in the middle, Anthony M. Kennedy, was another.

And many thought they saw the hand of Roberts in the decision, although it lacked his voice.

"I do think the opinion is the result of some very conscious decisions on the part of the chief justice" said Douglas Kmiec, a law professor at Pepperdine University. He said he was referring to what the court indicated was the narrowness of its holding and the assignment of the decision to Kennedy, who has both voted to uphold the right to an abortion and expressed opposition to the procedure.

Eve C. Gartner , who argued the abortion case before the court, said the decision's impact is not narrow at all. She said the court for the first time agreed that a specific abortion procedure could be banned. She also said it "gutted" previous holdings that abortion restrictions must contain exceptions for preserving the health of the woman, and changed the balancing act between the government's interest in protecting fetal life and a woman's right to choose an abortion.

A finding by Kennedy that a ban on the abortion procedure would protect a woman who regretted having an abortion from "grief more anguished and sorrow more profound" came "literally out of the blue," said Gartner, deputy director of litigation and law at the Planned Parenthood Federation of America.

Yet the majority said the decision complied with 1992's Planned Parenthood of Southeast Pa. v. Casey decision, which reaffirmed the right to abortion, with restrictions. And the majority upheld the federal Partial Birth Abortion Ban Act of 2003 without overturning their 5 to 4 decision seven years ago -- with O'Connor a member of the majority -- that declared a similar Nebraska statue unconstitutional because of the lack of exception for protecting the woman's health.

"I assume they are trying to deflect charges that the only change is that the court is 'differently composed,' as Justice [Ruth Bader] Ginsburg said in the dissent," Gartner said.

Others found the decision restrained. Justices Clarence Thomas and Antonin Scalia said in a short concurring opinion that they believed Roe v. Wade had "no basis in the constitution," but neither Roberts nor Alito joined, either because they do not agree or because the issue was not at hand.

The court's majority opinion Wednesday expressed a desire that challenges to laws be about specific applications rather than a claim that it is unconstitutional on its face.

Richard L. Hasen, a professor at Loyala Law School in Los Angeles, points out that it is what the court will hear next week in a case about the McCain-Feingold campaign finance act. Justices previously upheld the law -- again by 5 to 4, again with O'Connor in the majority -- but the Roberts Court indicated last year it was open to considering a challenge to how the law is applied.

"This court can weaken or even undermine precedent without overruling it, or at least overruling it explicitly," said Hasen, who has filed a brief supporting the government's defense of the campaign finance act.

A view of incremental change is more in tune with Roberts's stated goals of narrow decisions and more consensus. "It's less drastic and less alarming," Howard said, "especially given a court that's pretty sharply divided."


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