Yesterday was the first Monday in October. So we are into a new term. As with every first Monday and every new term, but especially with a new justice on the U.S. Supreme Court, the great temptation is to look ahead.
It might be just as instructive, however, to look back. For despite all the excitement about Justice Kagan, who becomes the third woman on the current court (only the fourth in history) to wear the robes, she is not expected to change the composition of the court in terms of its jurisprudential leanings.
In the last five years, under the leadership of Chief Justice John Roberts, the man President George W. Bush selected to replace the late William Rehnquist, the court has not only moved to the right, it has become the most ideologically conservative court in modern history. The Roberts court has already significantly curtailed affirmative action and the rights of those accused of crimes, while expanding the right to bear arms and the role of religion in public life. And this is only the tip of the ideological iceberg.
What happened? The most significant change was the departure of the first woman to serve: Justice Sandra Day O’Connor. She was the swing voter, and by the time she retired, after a quarter century on the bench, it’s fair to say she had moved to the center-right.
That was 2006.
O’Connor’s replacement, Samuel Alito, was much more likely to pull the court to the far right, and he has. Meanwhile, Kagan replaces a liberal, Justice John Paul Stevens, and Justice Sonia Sotomayor steps in for moderate Justice David Souter.
The Alito appointment, therefore, redefined the court as conservative. With his confirmation, the Bush administration repositioned Justice Kennedy at the center of a divided Supreme Court, one rapidly drifting right. (And to think, it might have been Harriet Miers in that seat; or John Roberts himself, but for the twists of fate.)
As Justice Stevens observed before he retired, every one of the 11 justices who have joined the court since 1975 have been more conservative than the justice he or she replaced. Stevens includes himself in that number (with the possible exceptions of Ruth Bader Ginsberg and the two most recent appointees — Sotomayor and Kagan, for lack of records on which to judge).
The departure of O’Connor and the arrival of Alito have already deeply affected the outcomes in some extraordinarily contentious areas of law: campaign spending by business and unions, evidence suppression, abortion and race in college admissions.
I have dared to have the conversation with several justices, some retired, some still on the bench and, of course, Supreme Court justices are loath to admit that they are ever influenced by ideology. Instead, they insist that they consider only the cold, hard facts and apply objective legal analysis. The idealist in me would like nothing more than to believe that. But then we would see no direct correlation between the political party of the president who appoints the justice and the way that justice votes. Yet, there almost always is a correlation — at least in the early years.
Of course there are exceptions. And justices — some of them famously — change their views over time.
With Kagan starting her first term, however, all of the justices on the current court do line up ideologically with the president who appointed them; and, with that in mind, the Roberts court is poised to be a lasting legacy of the administration of George W. Bush.
Jami Floyd is a lawyer, an award-winning journalist and a nationally renowned news anchor.