Newer Justices Could Transform Supreme Court

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.

"With each passing term, Chief Justice Roberts may take an increasingly muscular role on the court," Dellinger said "Unlike any other chief justice, he comes to the position from a professional career as a Supreme Court advocate in which he excelled at persuading five justices to agree with his position."

The term might also be noteworthy for the relationship among the three branches: an administration headed by a Democratic president with an ambitious agenda dependent on a wide expansion of government programs; a Congress now firmly controlled by a staunchly liberal Democratic leadership; and a court in which six of the nine were appointed by Republican presidents.

Some discord was on display during Sotomayor's confirmation hearings, where liberal Democratic senators excoriated Roberts and Alito.

"For all the talk of modesty and restraint, the right-wing justices of the court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights," Sen. Sheldon Whitehouse (D-R.I.) said in a typical complaint.

Robin Conrad, head of the litigation arm of the U.S. Chamber of Commerce, points out that one of the first acts celebrated by the Democratic leadership and Obama was the Lily Ledbetter Act, which nullified the court's ruling about how quickly discrimination lawsuits must be filed.

"We're very interested in the emerging relationship between the justices and Congress," she said at a briefing about the chamber's legal priorities. "We've seen several instances over the last few years where Congress has introduced legislation to nullify specific Supreme Court decisions."

But the court avoided a showdown with Congress and the administration last year over a key provision of the Voting Rights Act. The justices sharply questioned whether lawmakers had made the case for extending the act, but the court found narrow grounds for deciding the case and left aside constitutional questions.

Paul Clement, solicitor general in the Bush administration, said he does not see increased friction between the court and Congress, and thinks the criticism of Roberts and Alito by Democrats is not unusual.

Republican senators might have had the same concerns about Justices Ruth Bader Ginsburg and Stephen G. Breyer, appointed by President Bill Clinton, but simply lacked the kind of forum -- confirmation hearings of a new justice -- to make their complaints heard.

"That's a tension that's always there," Clement said.

Ginsburg, 76, and her older compatriot on the liberal bloc, 89-year-old John Paul Stevens, will be most closely watched this term for signs that one will retire at the end of the term.

Stevens appears to be in excellent health and still enjoying his job. But his decision to hire only one clerk for the term that would begin in October 2010, rather than the full complement of four, is seen as a sign he is at least considering stepping down next summer.

Ginsburg said an operation early this year to remove a tiny cancerous tumor on her pancreas was completely successful, and she never missed a day of the court's public sessions as she underwent what she called precautionary chemotherapy. She spent a night in the hospital recently after a treatment for anemia left her ill, but she returned to work the next afternoon.

The court's importance -- and the tension -- is likely to grow as it considers inevitable challenges to Obama's plans to have the government play a larger role in the economy, and to whatever plan, if any, emerges from health-care reform.

Michael McConnell, a George W. Bush appointee to the federal bench who recently left to head the Stanford Law School's center on constitutional law, said there could be a pushback from the court similar to that experienced by another president who came to office with a bold plan for change -- Ronald Reagan.

"If you look in history, each time an administration arrives with a new and ambitious agenda, it encounters resistance from the court," McConnell said.