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

Liberal justices play new role, dissenting from bench.

January 8, 2009, 12:15 AM

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.

"The direction of the Court is going to be where Kennedy takes it," said Supreme Court lawyer Mike Carvin. "And the issues he's tipped the majority have been ones he's traditionally conservative on."

Indeed, conservatives have been so successful this term partly because of the constellation of cases. The Court hasn't had that many cases in which Kennedy tends to be more liberal, such as those encompassing presidential power or gay rights or major First Amendment challenges.

And even with those conservative rulings, the Court hasn't issued sweeping decisions knocking down major legal benchmarks. It's trimmed the obvious cases, but it didn't overrule vast swaths of precedent — even though Justices Antonin Scalia and Clarence Thomas urged their colleagues to do so in several cases.

It said advocacy groups could air their television advertisements leading up to an election, narrowing the scope of the landmark McCain-Feingold campaign finance law but not striking it down. It upheld a ban on certain types of late-term abortions, but it didn't overturn earlier abortion cases. It narrowed the scope of some older decisions simply by saying they don't apply in other cases.

"It's a Court that sees itself getting the Constitution back on track, but not too quickly," said Dennis Hutchinson, a professor at the University of Chicago Law School. "It's feeling its way. But it's feeling its way to the right."

In the other major case this term involving race and schools, it's widely believed that the Court will again take the conservative path. The justices are expected to announce their decision Thursday on whether school districts can assign students to schools based partly on their race, just to keep classrooms diverse. Most legal observers believe the answer will be no, with Roberts writing the decision.

The shift in the Court this term reflects a different approach to the law and a different view of the role of a judge. For one thing, Roberts and other judicial conservatives on the Court like clear rules and are less willing to make exceptions where the law says something else.

That explains the 5-4 decision against a convicted murderer who failed to file his federal appeal on time after a judge told him the wrong deadline. Liberal Justice David Souter wrote a sharp dissent that it was "intolerable for the judicial system to treat people this way," but the conservatives thought the law was clear.

"A rule's a rule," said Carvin.

That approach also illuminates a 5-4 decision against an Alabama woman who sued her employer for sex discrimination under federal law. The company said she hadn't filed her challenge in time. The Court agreed — and left it to Congress to ease the law.

Roberts and the conservatives strongly believe that in the past, the Court has been too willing to jump in and settle disputes better left to elected legislators. They want the Court to ease out of those issues and take a back seat to the legislatures, which they see as closer to the people and therefore more accountable.

Liberals like Ginsburg and Justice Stephen Breyer, on the other hand, believe courts can be agents for change. They are more willing to look to the spirit of the law, or the purpose behind it, instead of focusing on the words of the statute or the Constitution.

That is not the approach of the new Roberts Court.

"The consistency and sense of purpose Chief Justice Roberts shows is really coming through in the results of the Court," said Andrew Siegel, a professor at the University of South Carolina School of Law.

In the abortion case, for example, the conservative justices found nothing in the Constitution to stop Congress from banning the "partial birth" abortion procedure. So they let the law, supported by Democrats and Republicans, stand. That decision was 5-4, with Alito's vote making the difference. O'Connor had provided the key fifth vote for liberals in 2000, when the Court struck down similar state laws.

In the student speech case this week, the Court signaled that school administrators — not judges — were the ones who should make the decisions. In a 5-4 vote, the Court said a school principal didn't violate a student's free speech rights when she suspended him for displaying a "Bong Hits 4 Jesus" sign. The principal was reasonable to conclude it was a message advocating illegal drug use, the Court said, and could punish the student for it.

That approach also could lead the Court to strike down voluntary efforts to integrate schools.

The Court outlawed "separate but equal" schools in the historic decision Brown v. Board of Education, but school segregation persisted intentionally in many districts. After Justice William Brennan wrote for the Court in 1968 that there should be no black schools and no white schools, "just schools," federal judges took an active role in making that happen. Judges developed plans to desegregate schools, such as busing tens of thousands of schoolchildren from their neighborhoods to schools across town, and they closely oversaw how the schools implemented those measures.

There was massive resistance — anti-busing parents took to the streets, and some protests turned violent. Roberts, who was at Harvard Law School when federal Judge Arthur Garrity ordered busing in the Boston school system in 1974, believed courts shouldn't be in the business of running institutions — whether it's schools or prisons — and that judges are ill-equipped to engineer social change.

At issue in the race cases this term are voluntary efforts to integrate schools — as opposed to court-ordered solutions. But in Louisville, Ky., school officials adopted the plan in the wake of court-ordered busing.

"To Roberts and Alito, courts didn't do a very good job. It's not possible for them to do a good job, and they don't have authority to do it, so we should go back to the basics," Hutchinson said.

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