Sharp Shift to the Right in First Full Term of the Roberts Court

June 28, 2007 — -- When Justice Ruth Bader Ginsburg wrote a landmark sex discrimination decision 11 years ago striking down men-only admission policies at the Virginia Military Institute, her husband, Marty, proudly hung The New York Times' front-page story trumpeting the ruling on his office door.

Times have changed.

With a new lineup of justices, Ginsburg now finds herself writing dissents in the Supreme Court's most significant cases — and, with the Court's other three liberals, facing the reality that the Court is poised for profound and lasting change.

As the first full term for the new Roberts Court winds to a close, that notion seems to be sinking in for the liberals. Instead of landmark decisions, they're writing sharp dissents. And in almost all the big cases — and some not so big — they're increasingly eager to summarize their dissents from the bench to make their displeasure clear.

It's almost like they've picked up a bullhorn to rally the troops — and the voters in 2008 — as they grapple with the realization that they're no longer the ones who are going to be making historic law.

That's a distinct shift from just two years ago, when Chief Justice William Rehnquist was leading a Court that, more often than not, took a liberal path on the big cases people care so much about. Justice Sandra Day O'Connor often cast the key deciding vote with the liberals as the justices struck down restrictions on abortion, refused to end affirmative action, scaled back the use of the death penalty, extended greater rights to gays and lesbians and put more limits on presidential power than ever before.

But with Chief Justice John Roberts taking Rehnquist's place and Justice Sam Alito replacing O'Connor, the Court is now poised to take a different approach — and it already has this term in a number of key cases, including a major decision that upheld a federal law banning so-called partial birth abortion.

In those cases, the decisions have been 5-4, and they've hinged on getting moderate conservative Anthony Kennedy's vote. Kennedy has been in the majority in every 5-4 decision this term, but only once did he give liberals a big victory. He joined Justice John Paul Stevens' decision that the Environmental Protection Agency had authority to regulate greenhouse gas emissions from new cars and trucks.