Alito could bring abrupt shift to top court

Friday, November 4, 2005

Departing Justice Sandra Day O'Connor has been the deciding vote in many cases.

WASHINGTON -- The Supreme Court's middle ground is disappearing. If Samuel Alito is confirmed, he could almost immediately begin shifting the court onto more conservative footing as it considers contentious social issues like abortion, religion and capital punishment.

With pragmatic Justice Sandra Day O'Connor as its pendulum, the court has staked out moderate positions, often in line with public opinion but not necessarily clear-cut.

"We've been idling many years with the court being noncommittal," said Ann Althouse, a law professor at the University of Wisconsin.

That is likely to end with Alito, who is expected to bring a more reliably conservative approach to areas that O'Connor has influenced: abortion restrictions, the death penalty, campaign finance, affirmative action and states' rights.

The shift could be abrupt.

O'Connor has been a tie-breaking vote in capital punishment cases, including a decision earlier this year that overturned Alito's ruling as a federal appeals court judge against a Pennsylvania inmate. The justices will take up a Tennessee death row inmate's appeal in January that will decide when people should get a chance to prove their innocence with DNA or other new evidence. Alito has been less sympathetic to inmate appeals than O'Connor.

Another case being argued in January brings up election law -- a subject that O'Connor has commanded.

"Justice O'Connor has been the key vote in everything from campaign finance to the meaning of the Voting Rights Act to racial gerrymandering to Bush v. Gore," said Richard Hasen, a Loyola Law School professor specializing in elections.

O'Connor was an author of the Supreme Court's most recent decision on campaign finance, a 5-4 ruling two years ago that upheld restrictions on donations. That same federal law will be reviewed by the court on Jan. 17. Justice Antonin Scalia opposes the law on grounds that it violates free speech, and in Alito he could find a fifth vote to strike down part of it.

Alito, like Scalia, has a record of friendliness to free speech claims. For example, he opposed a law that barred companies from buying alcohol ads in college newspapers.

O'Connor sometimes votes with Scalia and other court conservatives, and other times provides the fifth vote to the court's more liberal wing.

"We may not have any more swing votes on the court," said Suzanne Goldberg, a professor at Rutgers School of Law.

She said the court may still frequently split 5-4, but with conservatives on the winning side each time. It is not clear how O'Connor's departure will affect Justice Anthony Kennedy, another Reagan administration appointee who usually, but not always, votes with conservatives.

Kermit Hall, president of the State University of New York at Albany, said Alito probably will be a traditionalist judge with an emphasis on family values, more willing to back government than O'Connor, and more willing to vote on the side of employers in worker disputes.

In a 1991 appeals court ruling, he voted to uphold a state requirement that women notify their husbands before getting abortions, relying on arguments that a family discussion in advance could clear up miscommunication. O'Connor was an author of the Supreme Court ruling that found the notification unconstitutional.

O'Connor supports Roe v. Wade. Alito has not said how he would vote if asked to overturn the 1973 decision that established a woman's right to have an abortion. A major abortion case is on the calendar for November.

Alito is expected to go further than O'Connor in allowing religion in public life. O'Connor voted with liberal members this summer in a 5-4 decision that limited government Ten Commandments displays. Alito has given his support to a government holiday display containing a creche and menorah.

Another room for change is the area of states' rights. Alito, like Scalia, is expected to side with states more often in power struggles with Congress.

While O'Connor has generally been a strong states' rights advocate, her vote is not guaranteed. Last year she was the swing vote in a 5-4 ruling that said disabled people can sue if states ignore a civil rights law on access to courthouses.

Two states' rights showdowns are at the court now -- a case that asks if federal law can trump a state physician-assisted suicide law, and a case that asks if states can be sued for not accommodating disabled prisoners.

O'Connor is participating in both cases, and others that are on the schedule this fall, but her vote will not count if her successor is confirmed before the rulings are announced. It is likely that some appeals will have to be reargued after O'Connor's departure because of 4-4 deadlocks.

In her 24 years on the bench, O'Connor has been known for pragmatic votes, like her tie-breaking 2003 vote to allow limited affirmative action in college admissions.

"Because of her style of interpretation, you could never tell whether she was gauging the political preferences of society ... reaching outcomes that were good in a policy or political way," said Althouse, at the University of Wisconsin. "People would criticize her as being mushy."

With Alito, there will be less flexibility, which would please lawyers but may disturb some people, said Althouse.

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