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Key Decisions Mark Shift in Supreme Court

June 29, 2007 at 12:00 AM EDT

MARGARET WARNER: The Supreme Court term that just ended under Chief Justice John Roberts was marked by key 5-4 rulings that cheered conservatives, including overturning two race-based school desegregation programs, upholding the federal ban on a late-term abortion procedure, and striking down a key provision of the McCain-Feingold campaign finance law. Just one high-profile case, directing the EPA to consider regulating greenhouse gas emissions, went 5-4 for the liberal, in that case pro-environment side.

The one wild card among the justices was Justice Anthony Kennedy, and he leaned more often right than left. Joining us to assess the term are two professors who teach constitutional law, among other areas: Jonathan Adler, who’s at Case Western Reserve University School of Law; and Goodwin Liu, from the University of California, Berkeley, Boalt Hall Law School.

And welcome to you both, professors.

And, Professor Liu, beginning with you, is it fair to now say this is a conservative court?

GOODWIN LIU, University of California, Berkeley: Margaret, I think it is fair to say that. I think that, in a broad range of cases, especially the cases that split 5-4, the court leaned in a more conservative direction this term. And this is largely the result of the replacement of Justice Sandra Day O’Connor with Justice Samuel Alito.

If you look at the campaign finance case, the abortion case, the schools ruling yesterday, all of those cases Justice Alito joined the five-justice conservative majority, whereas we would know from some things that Justice O’Connor has written in the past that she might have been inclined to join the dissenters. And so the switch there, the replacement of Justice O’Connor with Justice Alito, has yielded big dividends, I think, for the conservative position.

MARGARET WARNER: Professor Adler, do you share that view? And if it is a “conservative,” quote, unquote, court, conservative in what sense?

JONATHAN ADLER, Case Western Reserve University: Well, I think it is a slightly more conservative court now that Justice Alito has replaced Justice O’Connor, but I think it’s only slightly more so. This is a conservative court that is moving in very small steps. This is not a court that has shown any willingness to revolutionize the law or to take broad, sweeping steps to unmake years of doctrine.

Identifying the conservative cause

Goodwin Liu
University of California, Berkeley
But make no mistake: I think it's right to say that all five justices are committed to a set of fairly conservative results.

MARGARET WARNER: And going back to you, Professor Liu, as we continue using these terms conservative and liberal, what would you say is -- what does that conservatism consist of, with the conservative bloc on the court?

GOODWIN LIU: Well, I think that, in some of the real hot-button areas related to, for example, the abortion case and the race-conscious school integration case, conservatives have been fighting for a number of years now to try to consolidate the doctrine in these areas, in the race area, to eliminate the use of race-conscious governmental decision-making in all areas, and, in the abortion case, of course, the sort of holy grail of the conservative position is to overturn Roe v. Wade.

Now, neither of the decisions this term reached that far, but one could say that, in reading the tea leaves a little bit, the conservatives in those cases did lay some important foundations that could be built upon in future cases to achieve those results.

I should add that Justice Scalia and Justice Thomas would have had the court move even faster in these areas. They urged overruling of some past cases in order to advance, I think, a conservative ideology, whereas Chief Justice Roberts, Justice Alito and Justice Kennedy approached those issues from, I think, a less aggressive stance.

But make no mistake: I think it's right to say that all five justices are committed to a set of fairly conservative results.

Dealing with an 'incremental' court

Jonathan Adler
Case Western Reserve University
Chief Justice Roberts and Justice Alito have shown a much greater desire to work within existing precedents and to change the direction of the law in small steps.

MARGARET WARNER: Professor Adler, is that what you meant when you said it was more incremental?

JONATHAN ADLER: Well, certainly more incremental in the sense that Justice Alito and Chief Justice Roberts are both interested in dealing with the specifics of the case before them and much less interested in making broad pronouncements about the shape of the law.

Justice Scalia and Justice Thomas, in quite a few opinions in concurrences, in particular, have noted a willingness to go much further, to overturn past precedents. Chief Justice Roberts and Justice Alito have shown a much greater desire to work within existing precedents and to change the direction of the law in small steps.

And I think in some of the cases that were just mentioned, we actually see this. In the partial-birth abortion case, the court made an effort to not disturb prior precedent, particularly the governing precedent of Casey, which set forth the current test for abortion cases, that was that rule which Justice Kennedy helped draft, is still really the governing doctrine for abortion cases.

And even in the race context, both Chief Justice Roberts' opinion and Justice Kennedy's opinion stopped short of saying that race could never be used. Chief Justice Roberts' opinion had language reaffirming the use of race for diversity purposes in higher education, or at the very least making clear that affirmative action in higher education is a different question that would have to be looked at independently.

And Justice Scalia and Justice Thomas, on the other hand, would much rather direct the law in terms of broad statements about principle and assert that those principles should be applied across the board.

MARGARET WARNER: Professor Liu, that is something that's been debated in this analysis of the court, to what degree they are overturning precedent. Justice Breyer said yesterday from the bench -- and let me read this if I can find it -- this was when he spoke from the bench about the school desegregation cases. "It's not often in law that so few have changed so much so quickly." To what degree do you think this majority is unsettling established law?

GOODWIN LIU: Well, Margaret, there are a variety of ways that judges can deal with precedent that they don't like. One way is to overrule it in an explicit way, and that's the way that Justices Scalia and Thomas would tend to deal with precedents that they don't like.

But in many ways, judges can achieve exactly the same result by hollowing out precedents from within. So in the schools case, that's a very nice example, because what Justice Breyer was complaining about in his dissent in the schools cases is that, for 30 years, there had been a pretty well-settled legal understanding arising from Brown v. Board of Education that school districts could voluntarily use race to achieve integrated schools.

And Chief Justice Roberts basically minimized a whole line of cases, describing them either technically as not holdings or that they were not addressed to the specific, precise question in the case, and thereby minimizing them and, in some ways, burying them, and thereby achieving likely the same result as if he had simply overruled a bunch of cases.

And I think that was also apparent in the taxpayer standing case in which Justice Alito said of an earlier precedent, "We simply let that precedent stand where it was." Well, that's another way of saying, "We confine that precedent to the specific facts dealt with in that earlier setting, and we refuse to apply it logically to the next case."

Analyzing the swing vote

Goodwin Liu
University of California, Berkeley
The five conservatives on the court now have more distance between them doctrinally from the four more liberal justices, and there's less of a kind of middle position.

MARGARET WARNER: Professor Adler, let me shift gears slightly here and ask about Justice Kennedy. Now, he was in the majority in, I believe, all 22 of the 5-4 decisions, according to the Georgetown Law Center analysis. Is he properly referred to as the swing vote?

JONATHAN ADLER: Well, he is, in a lot of cases. Justice Kennedy was in the majority, as you mentioned, in all of the court's 5-4 decisions. He only dissented twice, I believe, in all of the court's decisions, decided after oral argument. There were 68 cases decided after argument, and to only dissent in two of those is quite remarkable.

MARGARET WARNER: I guess what I'm asking here really is, what can you discern about what moves him? In other words, if he does sometimes go left and more often go right, what is it that determines for him?

JONATHAN ADLER: It really depends on the issue. I mean, whereas we can easily characterize Roberts and Alito as minimalists, willing to move in small steps, and Scalia and Thomas as being wanting to operate more broadly, for Justice Kennedy, it really depends on the subject matter.

There are certain areas of the law where he's very interested in precedent and very interested in small steps. There are other areas of the law, speech being one, areas related to privacy, where he is very willing to endorse broad judgments and broad principles that could have far-reaching effects and where precedent is not much of an issue. So it really depends on the subject matter for how Justice Kennedy is going to approach a case.

MARGARET WARNER: How different, Professor Liu, do you think Justice Kennedy is from Justice O'Connor in terms of being a, quote, "swing vote"?

GOODWIN LIU: Well, it's very interesting, the term "swing vote." When you win every single 5-4 case that the Supreme Court decides in a certain term, than you are, by definition, the swing vote, but there's another definition of being a swing vote, which is carving out a more moderate position than either your colleagues on the right or the left.

And I think, in that respect, Justice O'Connor fits that definition of a moderate swing voter much more tightly than Justice Kennedy. I think Justice Kennedy's instincts are fundamentally conservative in a broad range of areas, with a few exceptions. But setting those exceptions aside, what Justice Kennedy has essentially done in the mine run of cases this term is joined in a pretty full-hearted way the conservative position.

And so the absence of Justice O'Connor on the court, I think, has meant that the five conservatives on the court now have more distance between them doctrinally from the four more liberal justices, and there's less of a kind of middle position, a pragmatic balance wheel, if you will, in the court now.

Bringing the court together

Jonathan Adler
Case Western Reserve University
As the court's docket has shrunk, the percentage of cases that are going to be hotly contested is likely to increase, and that's what we've seen.

MARGARET WARNER: And despite, Professor Adler, the fact that John Roberts, when he was being confirmed, talked about wanting to build unanimity on the court.

JONATHAN ADLER: Well, I think there has been a fair amount of unanimity. I mean, one thing that we should note is that, as the court's docket has shrunk, the percentage of cases that are going to be hotly contested is likely to increase, and that's what we've seen.

It was only several years ago where the court would routinely hear 80, 90, or even 100 cases. This year, they heard around 70. So the fact that one in three was a very tightly divided case doesn't, I think, capture the whole picture.

And there certainly have been lots of cases during Chief Justice Roberts' short tenure involving highly contentious issues, an abortion case from a year ago, the case dealing with university opposition to "don't ask, don't tell," also from a year ago, as well as some other cases where we could have easily expected a splintered court, and instead we saw unanimity.

So I think it's too early to suggest that Chief Justice Roberts has failed to bring the court together. Certainly, in cases where the conservatives have been split, he has nonetheless been able to hold them together in many cases.

MARGARET WARNER: All right, let me go quickly to Professor Liu, very briefly, Professor Liu. And what do we make of these passionate dissents we're hearing read from the bench, from Breyer, Ginsburg, and Souter? Are the liberals on the court feeling besieged?

GOODWIN LIU: Well, I think there is a bit more of an embittered tone from the dissenters this term. I think the oral dissents from the bench have given a very strong flavor of that, and I think that that reflects the distance that they feel from the conservative majority.

What the conservatives have been able to do, I think, is pull the law farther to the right. I'm reminded of what Chief Justice Roberts said during his confirmation hearing, that he viewed his role as being an umpire simply calling balls and strikes. I think that may be the case, but I think it's equally true that he's been moving the strike zone farther to the right.

And I think that leaves less of a moderate position in the middle, and thus the dissenters are sort of left somewhat out in the cold. And I think that the embittered tone of their dissents reflects that and may only grow in the years ahead.

MARGARET WARNER: All right. We'll have to leave it there. Professor Liu and Professor Adler, thank you so much.

GOODWIN LIU: Thank you, Margaret.