The Future of Constitutional Law
| Author | Erwin Chemerinsky |
| Position | Alston & Bird Professor of Law and Political Science, Duke University |
| Pages | 647-668 |
Page 647
Now is the time for conservatives to rejoice. Since Ronald Reagan's election as President in November 1980, conservatives have sought control of the federal courts. There is now a solid conservative majority for most constitutional issues on the Supreme Court and by the end of the Bush presidency, the overwhelming majority of lower federal court judges will have been appointed by Republican presidents. For liberals, it is again a time to be angry at Ralph Nader and at the butterfly ballot which meant that errors in voting decided the November 2000 election. But for these events, it would have been Al Gore, not George Bush, who would have picked the replacements for Chief Justice William Rehnquist and Justice Sandra Day O'Connor.
After eleven years without vacancies on the Supreme Court, the second longest stretch in American history and the longest since early in the nineteenth century, two seats have changed. What will this mean for constitutional law? The change from William Rehnquist to John Roberts as Chief Justice is unlikely to change results. Having read dozens of memos, judicial opinions, and other writings by John Roberts, I see little difference between Roberts and Rehnquist. Both are solid conservatives across all issues of constitutional law. The importance of this change is long-term: John Roberts is fifty years old and if he remains on the Court until he is eighty-six years old, the current age of Justice John Paul Stevens, he will be on the Court until the year 2040.
The changes in constitutional law will be the result of replacing Sandra Day O'Connor with Samuel Alito. Justice O'Connor has been in the majority in 5-4 decisions in countless areas of constitutional law where Justice Alito is likely to vote differently. This Article will discuss these changes and identify areas where change is unlikely in doctrine as a result of the shift in the membership of the Court. There are areas where Justice Anthony Kennedy, not Sandra Day O'Connor, has been the fifth vote in 5-4 decisions.
A few disclaimers are in order at the outset. First, this Article assumes that there will be no other vacancies in the short-term. It is impossible to speculate as to the timing of the next vacancy or which President will fill it. For example, if Justices John Paul Stevens or Ruth Bader Ginsburg leave the Court and are replaced by President Bush, there will be a number of additional areas where the Court will move further to the right. On the other hand, if a Democratic President gets to pick a replacement forPage 648 Antonin Scalia or Anthony Kennedy, there would be a number of areas where the Court will move further to the left. (Obviously, a Democratic President replacing Justice Stevens or Justice Ginsburg, or a Republican President replacing Justice Scalia or Justice Kennedy, will not likely change the Court's ideological composition.) But it is safe to assume, given the ages of the Justices, that there will be at least five conservative Justices-Roberts, Scalia, Kennedy, Thomas, and Alito-for years to come. This Article will explore what this means for the future of constitutional law.
Second, this Article assumes that the voting patterns of Chief Justice Roberts and Justice Alito can be predicted. During the time of their confirmation fights, I heard many suggest that it is impossible to forecast what a person will do as a Justice and that individuals often change in unpredictable ways once on the bench. I think this is just wrong and that it was a convenient way for Republicans to divert attention from the hardcore conservativism of Roberts and Alito.
The reality is that few individuals behave differently on the bench than would have been predicted from their prior records. Rarely do the ideologies of Justices change significantly while they are on the Supreme Court. This is not surprising; few people undergo major ideological transformations in their fifties and sixties. There are a few notable examples of individuals who changed while on the Court. Felix Frankfurter was a liberal law professor, but became a conservative Justice.1 Harry Blackmun unquestionably moved from the right to the left over the course of his time on the high Court.2
But it is difficult to think of other Justices who changed significantly while on the Court. William Rehnquist was conservative when he clerked for Robert Jackson in the early 1950s and wrote memos urging the Justice to vote to affirm "separate but equal."3 Rehnquist was conservative whenPage 649 he was nominated to the Supreme Court by Richard Nixon in 1971 and when he was elevated to Chief Justice by Ronald Reagan in 1986.4 He was just as conservative when he left the Court in September 2005.5
I have heard some point to Sandra Day O'Connor and David Souter as examples of Justices who significantly changed their ideologies while on the Court. I think this is incorrect. Justice O'Connor's views on issues changed remarkably little over the time she was on the Court. For example, on abortion, the only opposition to her nomination to the Supreme Court came from anti-abortion groups.6 In her first abortion case, she opposed strict scrutiny for abortion rights and urged that laws regulating pre-viability abortions be allowed unless they imposed an undue burden on women seeking abortions.7 She continued to adhere to this view throughout her time on the Court.8 In her first case on the Establishment Clause, she articulated the view that the government acts unconstitutionally if it symbolically endorses religion.9 She never deviated from this view.10
There is no indication that Justice Souter has changed significantly while on the Supreme Court. There just was very little known about hisPage 650 ideology based on his prior service as a justice on the New Hampshire Supreme Court.11
What is striking about Chief Justice Roberts and Justice Alito is that everything in their records points in only one direction-the right. Each has a paper trail on almost every hot-button issue that indicates that they will be solid conservatives. Predictions are thus possible as to what their presence on the Court will mean. That is the focus of this Article. Part I offers these predictions. I intend for it to be entirely descriptive and I believe that both liberals and conservatives will agree with this description. Part II offers thoughts about what this will likely mean for political and academic discourse in the years ahead.
It is possible to identify a number of areas where Justice O'Connor was in the majority in 5-4 decisions and replacing Justice O'Connor with Samuel Alito is likely to make a significant difference in constitutional law.
Abortion rights now depend on two factors: a Justice who previously has voted to overrule Roe v. Wade12 and the longevity of a Justice who is eighty-six years old.
On the current Court there are only four solid votes to uphold Roe and strike down most restrictions on abortion: Justices Stevens, Souter, Ginsburg, and Breyer. At the same time, there are likely four solid votes to overrule Roe: Chief Justice Roberts, and Justices Scalia, Thomas, and Alito. Justices Scalia and Thomas, of course, have consistently voted to overrule Roe13 Chief Justice Roberts, as Deputy Solicitor General, authored briefs urging the courts to overrule Roe14 I find it hard to believe that someone would sign such a brief, on such an important issue, without believing that conclusion. Having read countless memos, briefs, andPage 651 articles written by John Roberts, I could not find a single instance in which he ever supported constitutional protection for reproductive freedom.
There is even less doubt about Justice Alito's views on abortion. In applying for a position in the Department of Justice in 1985, Alito wrote:
[I]t has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court . . . that the Constitution does not protect a right to an abortion.15
He urged the Reagan administration to devise a legal strategy to pursue "the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigatingg [sic] its effects."16 Justice Alito's record as a judge on the United States Court of Appeals for the Third Circuit reveals that his judicial approach to abortion was consistent with the positions he urged as a lawyer in the Justice Department. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 Judge Alito voted to uphold provisions of a Pennsylvania law that restricted abortion, including a requirement for spousal notification for married women's abortions,18 which the Supreme Court later invalidated.19 The case offers a clear contrast between Justices Alito and O'Connor because they came to opposite conclusions on this issue.20 Even where Judge Alito voted to strike down laws restricting abortions, he wrote separate concurring opinions to make clear that he was doing so just because it was required by Supreme Court precedent.21
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Thus, if confronted with the issue of whether to overrule Roe v. Wade, the current Court has four Justices who line up on each side. That leaves Justice Anthony Kennedy. When he first voted on an abortion case, in Webster v. Reproductive Health Services22 Kennedy joined in a plurality opinion by Chief Justice Rehnquist that urged rational basis...
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