The Supreme Court's middle ground is disappearing. If Samuel Alito is confirmed, he could almost immediately begin to erase the court's balanced rulings on contentious social issues like abortion, religion and capital punishment.Let me expand a little. I don't know what sorts of outcomes Alito would reach, and I think that it is difficult to extrapolate Supreme Court behavior from lower court decisions, but I think O'Connor has been very much the sort of judge who looks at the totality of the circumstances and weighs all the factors. Though her vote has been decisive on frequent, momentous occasions, it hasn't said that much about what would happen in the next case, in a new context. This has left a lot of doctrine in a "mushy" or "noncommittal" state. If her replacement is willing to resolve cases in a crisper, more rule-based manner, doctrine could firm up quickly. (Which would only please some lawyers, I hasten to say!)
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 sometimes votes with Scalia and other court conservatives, and other times provides the fifth vote to the court's more liberal wing....
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....
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.
But will there be a majority to nail down doctrine in a lot of the areas that have been left flexible during the O'Connor era? Even assuming he becomes a reliable conservative vote, he will need more than Justices Scalia and Thomas to make a majority. What will Chief Justice Roberts and Justice Kennedy do? Justice Kennedy has already shown a tendency to stay in the middle, and I think Roberts is something of a pragmatist.
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No matter how far the court drifts between left and right, there is ALWAYS a swing vote - the justice whose vote is the limiting factor on the drift of the court overall. There's nothing magically centrist about O'Connor. If Gore had become president, we'd eventually be describing Souter as the swing vote.
To repeat what I said in a differenr way - the law is usually going to noncommital and mushy around whatever issues define the boundary between left and right within the court's composition at any point in time.
If Alito is confirmed as I expect he will be, it will be interesting to see how he and Roberts use their very similar skills. Both are said to be amiable and collegial.
Both are demonstrably excellent writers and adopt precise legal reasoning. Both tend to associate with the traditional establishment and order of things. Both seem to have a fundamentally fair way of looking at things.
This bodes well for a more understandable and predictable jurisprudence from the SCOTUS than we have been accustomed to.
O'Connor has been very much the sort of judge who looks at the totality of the circumstances and weighs all the factors
Hmm, who would want *that* in a judge?
You say "noncommittal," I say "inconsistent" and "doctrinally incoherent." In any instance, liberal fears are misplaced, as Justice Kennedy is extremely likely, in my view, to "grow" a little bit more, lured by the power of being the court's swing vote. The greenhouse effect will be growing in intensity for Kennedy by the day.
It would be marvellous to see the Court's Constitutional doctrine resting on something other than the whims and views of Justice O'Connor. While Justice Alito will still be more "case specific" than "doctrinal" I suspect, it's a step forwards.
I think that this was what a lot of us didn't like about Justice O'Connor's opinions. She was mushy. 13 part balancing tests, etc. this time, and 15 the next. (Ok, that was an exageration).
Your posts are thought-provoking and illuminating, and reading Althouse.com is a blog version of the Socratic method.
Any law school would be fortunate to have you as a professor. Is there a chance, however remote, that you would consider teaching at my alma mater in Austin?
Quxxo: I agree that weighing all the factors is one style of judging that, done well, deserves respect. It does leave the law in an uncommitted state, which poses some problems and leaves a situation where later judges can firm everything up.
DRJ: I am a professor. I'm here at the University of Wisconsin.
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