Chief Justice John Roberts and future Justice Samuel Alito probably mean a more conservative Supreme Court. But it probably doesnÃ¢â‚¬â„¢t mean a stream of clear-cut conservative breakthroughs on abortion, affirmative action, school prayer or even flag burning.
The future of constitutional rulings on those and other hot button issues will be determined by two words: Anthony Kennedy.
ThatÃ¢â‚¬â„¢s an oversimplification of course. But it seems likely that on a number of issues, there will be four conservatives, four liberals and there will be Justice Kennedy. Unlike Roberts and Alito who went to lengths to leave the world guessing about how they will rule, we know a lot about what Anthony Kennedyism means because he has already faced these issues as a justice.
It means Roe v. Wade isn’t overturned, but partial birth abortion is banned and other abortion restrictions are accepted.
Affirmative action is more constrained but not ruled unconstitutional. State-sponsored displays of religious symbols are more likely to be tolerated, but the ban on school prayer is not overturned. Burning a U.S. flag to protest, and viewing pornography on the internet continue to be constitutionally protected activities but McCain-Feingold-type regulations on political campaigning are vulnerable to First Amendment challenges.
On the first day of the Alito hearings, Sen. Joseph Biden, D.-Del., said that the Ã¢â‚¬Å“elephant in the roomÃ¢â‚¬? was the question of whether Alito would cast the decisive votes to reject the direction in which the Supreme Court has been going for the past 70 years.
Over the next two and a half days, Alito endorsed some of those precedents
(Brown v. the school board, one-person, one-vote, and the Constitutional right of privacy, at least as far as the contraception cases.)
Alito also danced artfully around senatorsÃ¢â‚¬â„¢ efforts to commit himself on some other precedents, most especially relating to abortion. This is the current state-of-the-art strategy for confirmation, and it appears to be working well.
The intensity of the pro-choicer campaign against Alito leads one to forget that there are still five votes to affirm Roe, and that on many of the issues liberals care about, Kennedy has affirmed the basic Warren Court breakthrough rulings.
Depending on the the health of Kennedy and the four liberals, and the outcome of future elections, the stakes simply may not be as high as BidenÃ¢â‚¬â„¢s elephant’s eye. (That was an elaborate conflation of the previous reference with a corny lyric from “Oh What a Beautiful Morning.” Ask your parents.”)
If Roberts and Alito turn out to be solid allies of Scalia and Thomas, if the liberals stay together and stay well, and if Kennedy sticks with his established positions, that means:
Ã¢â‚¬Â¢Roe v. Wade is not overturned. Kennedy and the four liberals have already rejected that idea. But the congressional ban partial birth abortion is upheld. Kennedy already voted to uphold it once before. And other restrictions on abortion rights will be accepted.
Ã¢â‚¬Â¢Affirmative action is not ruled unconstitutional at its core. Scalia and Thomas have indicated a willingness to strike it down completely. But Kennedy declined to join those opinions.
On the other hand, colleges and universities will have an even rougher time figuring out how to construct a constitutional affirmative action program. In 2003, Justice OÃ¢â‚¬â„¢Connor joined the four liberals in upholding the University of Michigan Law SchoolÃ¢â‚¬â„¢s admissions program, which claimed to have found a way to act affirmatively without explicit quotas or race-based point systems.
Kennedy and the conservatives formed a four-member bloc that didn’t buy it. Quite likely, if a similar question makes it to the court, Kennedy will cast the decisive vote.
Ã¢â‚¬Â¢State-sponsored displays of religious symbols, like the 10 commandments, are more likely to be tolerated when KennedyÃ¢â‚¬â„¢s becomes the key swing vote. But the breakthrough Warren-era decision, banning school prayer, will not be overturned. Kennedy has already endorsed that precedent.
Ã¢â‚¬Â¢KennedyÃ¢â‚¬â„¢s free speech jurisprudence has a strong libertarian streak. That has helped liberals construe the burning of a U.S. flag by protesters and viewing pornography on the internet as constitutionally protected activities under the First Amendment.
But KennedyÃ¢â‚¬â„¢s libertarian streak made him leery of McCain-Feingold-type regulations that restrict political advertising in the name of campaign finance reform.
The next time those issues roll around, Kennedy may provide the fifth vote necessary to strike down those regulations on First Amendment grounds.