Newer Justices Could Transform Supreme Court

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By Robert Barnes
Washington Post Staff Writer
Friday, October 2, 2009; 4:15 PM

With three new members in the past four years and the prospect of more change ahead, the Supreme Court led by Chief Justice John G. Roberts Jr. next week commences what could be a transformative term.

New Justice Sonia Sotomayor will receive the most attention, as President Obama's historic choice begins to reveal the judicial philosophy that remained largely cloaked during her confirmation hearings. And speculation will build about whether a retirement by one of the aging liberal justices will give Obama another opportunity to make his mark.

But experts who watch the court will focus more on President George W. Bush's appointments: Roberts, who became chief justice almost exactly four years ago, and Justice Samuel A. Alito Jr., whose consistently conservative viewpoint contrasts with that of the more moderate justice he replaced in early 2006, Sandra Day O'Connor. Both men are emerging from the cautious first years that every new justice experiences; Roberts as a results-oriented strategist and Alito likely to strengthen his voice in a term whose docket already features cases that will highlight the difference he makes on the court.

"The replacement of [Justice William H.] Rehnquist and O'Connor by Roberts and Alito is likely to have a significantly greater impact on the court than the replacement of [Justice David H.] Souter by Sotomayor," said Walter Dellinger, a frequent Supreme Court practitioner who represented the government during the Clinton administration.

"I think we may look back in about 2020 and see that the replacement of Justice O'Connor by Judge Alito had the greatest impact on the court of any appointment in a more than a quarter of a century," Dellinger said, dating back to conservative Justice Clarence Thomas's replacement of stalwart liberal Thurgood Marshall.

Evidence of the impact could come early in this term in a couple of First Amendment cases.

One is Citizens United v. Federal Election Commission, which the court reconsidered in a special hearing last month to decide whether to overrule precedent that restricted the role of corporations in election campaigns. O'Connor supported the kind of campaign finance reform found in the challenged McCain-Feingold Act; Alito has been much more skeptical that it can be squared with free speech rights.

Alito is also likely to be more open than O'Connor to arguments that religious displays on government property do not necessarily constitute government endorsement of religion. That will be at issue when the court next week considers the case of a war memorial cross that stands on government land in the Mojave desert.

Roberts will also be key in both cases, especially campaign finance. The chief justice, 55, has emerged as a canny tactician, patiently moving the court's decisions to the right, but without bold steps.

"When the court has gotten to the brink of overruling a major precedent, the court has stepped back from the cliff," said Steven R. Shapiro of the American Civil Liberties Union.

Whether that is because of Roberts's preference for narrow and incremental change or because Justice Anthony M. Kennedy remains the decider between the court's equally divided conservative and liberal blocs is the great debate about the court.

But Dellinger and others expect Roberts to play a pivotal role that often eluded his mentor and predecessor, Rehnquist.


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