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The Supreme Court: Sharp turn to the right

By Erwin Chemerinsky


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Conservatives finally got their Court. That is the central message of the Supreme Court's October Term 2006 that concluded on June 29. Since Richard Nixon ran for president in 1968, every Republican president has sought to create a solid conservative voting majority on the Supreme Court. Now, apparently, it exists, thanks to the two newest members, Chief Justice John Roberts and Associate Justice Samuel Alito.  

Roberts and Alito voted in a conservative direction in every single ideologically divided case this year. They have been everything that conservatives could have dreamed of and liberals could have feared. Roberts and Alito joined with Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas to create the majority in almost every major case where the Court split along ideological lines.

Justice Kennedy is rightly perceived as the swing justice on the Court. There were 24 decisions resolved by a 5-4 margin, out of 68 cases decided after briefing and oral argument, and Justice Kennedy was in the majority in all 24. No other justice was in the majority in all of the 5-4 decisions, and it is hard to think of any other year where one justice was in the majority in every 5-4 case. But Justice Kennedy did not swing much from side to side this year. With a few notable exceptions, he always was with the conservative block.

What does it mean that the Court was more conservative? Three themes are evident: The Court moved significantly to the right on key issues that divide liberals and conservatives: abortion and race. The Court tended to favor the government over individuals across a wide range of issues. The Court also tended to favor business over employees and consumers.

Abortion and race

The two cases that received the most media attention involved a federal law that prohibited so-called "partial birth abortion" and attempts by two school districts to use race as a factor in assigning students to schools to achieve desegregation. In each case, the Court decided 5-4 in favor of the conservative position, and in each the Court signaled a major shift in the law that is likely to have significant long-term consequences.

In Gonzales v. Carhart, 127 S.Ct. 1610 (2007), the Supreme Court upheld the constitutionality of the federal Partial Birth Abortion Ban Act of 2003. In 2000, in Stenberg v. Carhart, 550 U.S. 914 (2000), the Court struck down a Nebraska law prohibiting partial birth abortion. The Nebraska statute prohibited the removal of a living fetus or a substantial part of a living fetus with the intent of ending the fetus' life. Justice Stephen Breyer wrote the opinion for the Court in Stenberg and was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and then-Justice Sandra Day O'Connor. The Court stressed that the Nebraska law was unconstitutional because it did not have an exception allowing the procedure when the health of the woman warranted it and it was broadly written and likely prohibited many types of abortion procedures.

The federal Partial Birth Abortion Act has no health exception and though narrower than the Nebraska law, it is more broadly written than the Court said it would allow in Stenberg. Nonetheless, the Court upheld the federal act. Justice Kennedy wrote the opinion for the Court and was joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito. Justice Kennedy said that the law is facially constitutional because it is not an undue burden for a large fraction of women.

This is a change in the standard with regard to evaluating the constitutionality of laws regulating abortion. In Stenberg and in Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court said that laws regulating abortion are unconstitutional if they are an undue burden for some women.  After Gonzales v. Carhart, though, laws regulating abortion will be struck down only if they are an undue burden for a significant fraction of women. This test is obviously much more deferential to legislatures and will allow more government regulation of abortion.

Moreover, the Court clearly changed the rhetoric of abortion rights. Justice Kennedy's majority opinion repeatedly referred to the fetus as the "unborn child" and "innocent life." He spoke of how some women regret their choice to have abortions and thus abortions can be harmful to the self-esteem of some women. This is the rhetoric of the anti-abortion movement. The result is that many state legislatures will see this decision as a signal that they can adopt much greater restrictions of abortion, so long as they do not ban all abortions.

In Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. ___ (June 28, 2007), the Supreme Court struck down efforts by the Seattle and Louisville school districts to further desegregation efforts by using race as a factor in assigning students to schools. Chief Justice Roberts' opinion was joined in its entirety only by Justices Scalia, Thomas, and Alito. Justice Kennedy concurred in part, but also concurred only in the judgment in part, and his separate opinion is thus crucial to determining the scope and impact of the decision.

All five justices in the majority agreed that the government must meet strict scrutiny — its actions must be necessary to achieve a compelling purpose — even if it is using race to achieve school desegregation.  Chief Justice Roberts, writing for a plurality of four, found that Seattle and Louisville lacked a compelling interest for their desegregation efforts. Chief Justice Roberts stressed that the school systems were not seeking to remedy constitutional violations and he rejected the argument that diversity in classrooms was an interest sufficient to meet strict scrutiny. By contrast, Justice Kennedy and the four dissenters said that desegregating schools is a compelling government interest.

But all five justices in the majority agreed that the school districts failed to show that race neutral means cannot achieve desegregation. Justice Kennedy, like the four justices in the plurality, said that race can be used in assigning students only if there is no other way of achieving desegregation.

As Justice Breyer pointed out in his dissenting opinion, American public schools are increasingly racially segregated and the Court's decision will have the effect of placing many effective desegregation plans in jeopardy. Justice Kennedy said that school systems can use race in practices such as drawing attendance zones and choosing where to build new schools. The key question for the future is how successful these efforts can be in achieving meaningful desegregation.

Favoring the government over the individual

Ever since the end of the Warren Court, conservative constitutional jurisprudence has tended to defer to the government in the face of most claims of individual rights. That was certainly true in many of the 5-4 decisions this year. For example, in Morse v. Frederick, 127 S.Ct. ___ (June 25, 2007), the Court held that the First Amendment was not violated when a student was punished for displaying a banner with the inscription, "Bong Hits 4 Jesus." When the Olympic torch came through Juneau, Alaska, a high school released its students from class to watch and a student unfurled his banner. The principal, believing that the banner encouraged drug use, confiscated it and suspended the student who displayed it.

In an opinion by Chief Justice Roberts, the Court said that the principal could reasonably interpret the banner as encouraging illegal drug use and that schools have an important interest in stopping such speech. Although the Court's holding was narrow, the implications are broad in indicating greater judicial deference to schools when they want to suppress student speech that is seen as encouraging harmful behavior.

A case that received far fewer headlines, but that also reflects the conservative approach of the Roberts Court, was Bowles v. Russell, 127 S.Ct. 2360 (2007). A criminal defendant asked a federal district judge for an extension in the time to file a notice of appeal. The judge gave the defendant a 17-day extension and a notice of appeal was filed within this period.  

But the Supreme Court, in an opinion by Justice Thomas, agreed with the State of Ohio that the statute allowed for extensions of only up to 14 days and the Court overruled earlier decisions which held that exceptional circumstances may excuse an un-timely filing of a notice of appeal. Therefore, even though the defendant followed the judge's order and even though it would have been allowed under prior Supreme Court decisions, he was barred from being able to appeal his criminal conviction.

Favoring business over consumers and employees

Many have predicted that the Roberts Court will be more protective of business interests than its recent predecessors. That certainly was evident this year. For example, in Phillip Morris USA v. Williams, 127 S.Ct. 1057 (2007), the Court imposed a new limit on punitive damage awards and held that a jury cannot impose punitive damages to punish a defendant for harms suffered by third parties other than the plaintiff.  

The case, though, is likely to engender tremendous confusion as the Supreme Court also said that a jury could consider harm to third parties in assessing the reprehensibility of the defendant's conduct. Since the Court often has said that reprehensibility is the most important factor to be considered in awarding punitive damages, the case is quite confusing as to whether and when harms to third parties can be considered.

Another important victory for business was in Ledbetter v. Goodyear Tire and Rubber Co. Inc., 127 S.Ct. 2162 (2007). The Court made it much more difficult for employees to sue for pay discrimination under Title VII of the Civil Rights Act of 1964. The Court said that the statute of limitations for such pay discrimination claims under Title VII begins to run when the salary is set. The Court rejected the plaintiffs' claim that each additional paycheck is a separate violation. Justice Alito, writing for the Court, did not decide whether the statute of limitations is tolled until a plaintiff reasonably could know of the discriminatory salaries in that workplace or how that is to be determined.

In several cases, the Court made it much more difficult to sue business for antitrust violations. In Leegin Creative Leather Products Inc. v. PSKS Inc., 127 S.Ct. ___ (June 28, 2007), the Court overruled a 96-year-old decision and held that it is not a per se violation of antitrust laws for a manufacturer to set minimum resale prices. In Credit Suisse Securities (USA) LLC v. Billing, 127 S.Ct. 2383 (2007), the Court ruled that there cannot be antitrust claims for securities law violations. The Court explained that securities laws were "clearly incompatible" with antitrust laws, such that securities law implicitly precluded antitrust claims. And in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the Court held that stating a claim under the Sherman Act's restraint of trade provision requires that the complaint allege sufficient facts to suggest that an agreement was made. The Court rejected notice pleading for such claims, thus making it harder for plaintiff to get into court.


These, of course, were only some of the more important and more high profile cases of the term. But they reflect an overall docket where the conservative position consistently prevailed. Obviously, to say that the decisions were conservative is neither to praise nor criticize the result. How one feels about this term and the Roberts Court undoubtedly depends on one's own ideology and constitutional philosophy.

October Term 2007 promises to be just as important. For example, on June 29, the Court reversed itself and decided to grant review of the cases of Guantanamo detainees challenging the constitutionality of the restriction of habeas corpus in the Military Commission Act of 2006. The one safe prediction is that it probably will produce a 5-4 decision and Justice Kennedy will be in the majority.

• Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University.

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