Next Year’s Cases Could Signal Acceleration of Ultraconservative Trend

The U.S. Supreme Court’s first term under the leadership of Chief Justice John Roberts demonstrated a clear rightward shift on key constitutional principles and other issues, and the cases accepted by the Court for next year’s term could accelerate the trend. Justice Anthony Kennedy emerged as a conservative swing vote, often joining his ultraconservative colleagues while sometimes preventing them from putting even more extreme positions into law.

“Americans’ rights and liberties are already less secure after just one year of the Roberts Court,” said People For the American Way Foundation President Ralph G. Neas. “While Justice Kennedy has prevented the Court’s far-right four from doing their worst, we’re clearly headed in the wrong direction. One more ultraconservative justice would mean a ‘lost generation’ for the Constitution.”

Neas said that the shift on the Court was partially masked by a number of unanimous decisions that took a narrow approach to the issues raised in some cases. But he said the shift to the right expected when Samuel Alito replaced Sandra Day O’Connor on the Court was reflected in several 5-4 decisions:

• a 5-4 majority ruled that the First Amendment does not protect government employee whistleblowers
• the same 5-4 majority decided that the exclusionary rule should not apply to violations of the constitutional requirement that police “knock and announce” searches, with Justice Kennedy alone making clear that the decision would not apply more broadly
• the same 5-4 majority limited the scope of the Clean Water Act, with Roberts and Alito joining Scalia and Thomas in arguing for a dramatic cutback in this important environmental law but Kennedy providing the decisive voice for a more restrained approach
• in a Texas redistricting case, the Court upheld most of Tom DeLay’s nakedly partisan redistricting plan. The same 5-4 majority rejected a challenge by African American voters to the redrawing of a Dallas-area congressional district, but Kennedy joined the more moderate Justices to rule that carving Hispanic voters out of another district to diminish their influence had violated the Voting Rights Act.

Justice Kennedy provided a crucial vote to uphold the rule of law and the constitutional system of checks and balances in the Hamdan case, in which the Court ruled 5-3 that the Bush administration could not continue to ignore U.S. law and the Geneva Convention in setting up procedures to decide the fate of detainees in Guantanamo. Chief Justice Roberts did not participate in that ruling because he had been involved in the case while he was on the D.C. Circuit.

“It’s now clear that two justices have replaced Sandra Day O’Connor,” said Elliot Mincberg, PFAW Foundation Senior Vice President and Legal Director. “Justice Alito took her seat on the Court while Justice Kennedy has taken her role as the key swing vote.”

Mincberg said the 2006-07 term will offer the Court’s ultraconservatives several opportunities to move the nation backwards on key civil rights, civil liberties and other issues. Among the cases the Court has agreed to hear:

• two cases on the validity of the federal abortion ban that closely resembles the Nebraska ban struck down 5-4 by the Court several years ago (Kennedy was part of the four-vote minority in that case; Alito may provide the deciding vote to undermine reproductive choice.)
• two decisions concerning the affirmative use of race to promote integration in public schools, which many believe could threaten the Court’s recent 5-4 decision upholding affirmative action in higher education. (O’Connor was the deciding vote in that case upholding affirmative action; Kennedy was in the minority.)
• an important case concerning whether the Clean Air Act requires the EPA to take action on greenhouse gases.

People For the American Way Foundation will release a detailed legal analysis of the Roberts Court’s first term tomorrow. The report will examine key decisions on civil rights, civil liberties, and other non-criminal law subjects discussed in PFAW Foundation’s Courting Disaster 2005 report.