WASHINGTON – Twenty-five years ago, President Reagan came to Washington with bold plans to move the Supreme Court to the right.
He and his lawyers wanted a court that would uphold state laws that impose the death penalty, restrict abortion and allow a greater role for religion in public life. They favored property rights over environmental regulation, states’ rights over broad federal authority and executive power over Congress and the federal courts.
Now, with the Senate about to confirm Judge Samuel Alito, a second generation of Reagan disciples stands ready to fulfill his vision for the court.
Alito, like Chief Justice John Roberts, was drawn to conservative ethos of the Reagan administration in the 1980s. Both men worked in Reagan’s Justice Department and as advocates for the administration before the Supreme Court.
This year, both men were promoted for the court by a network of former Reagan lawyers, including Reagan’s attorney general, Edwin Meese, which holds influence with the Bush White House. And some of Reagan’s former advisers see the elevation of Roberts and Alito as the culmination of a long drive to put Reagan’s conservative stamp on the court.
“It is a matter of enormous pride to see two of our colleagues become Supreme Court justices,” said Charles Cooper, a Washington lawyer who hired Alito for a key Justice Department post in 1986. “The Reagan administration was very deliberate in trying to promote bright, ambitious young conservatives. And this is in many respects the fulfillment of that effort.”
Much stays the same
Despite the passage of time, the conservatives’ agenda for the court remains remarkably the same. They want a court that will uphold restrictions on abortion, permit religious displays such as the Ten Commandments on public property and give police and prosecutors a freer hand to enforce laws.
Equally important is what the court does not do. Social conservatives are hopeful that the Roberts court will not interpret the Constitution in a way that would create a right to same-sex marriage or forbid the use of the words “under God” in the Pledge of Allegiance.
“We should look for a court with a lowered profile, a court that tries to resolve cases, but one that does not discover new constitutional rights,” said Pepperdine Law Professor Douglas Kmiec, another Reagan administration veteran who worked with Alito and Roberts.
If the new Bush appointees plan to lead a sharp move to the right, it should be evident soon. This year, the court is facing cases that could lead to sharp cutbacks in federal environmental regulation, more restrictions on abortion and greater presidential control over “enemy combatants” without interference by the courts. One pending case tests whether the court will make it easier for state death row inmates to win new trials if DNA evidence casts doubt on their convictions.
But it is not clear that Roberts, 51, and Alito, 55, could form a solid conservative majority to make major changes in the law, even if they wish to do so.
They join a court with two Reagan-era conservatives, Justices Antonin Scalia, 69, and Clarence Thomas, 57.
Much depends on Justice Anthony Kennedy, 69. Reagan’s final appointee, Kennedy has proven to be more of centrist than a reliable conservative.
Four justices – John Paul Stevens, 85, David Souter, 66, Ruth Bader Ginsburg, 72, and Stephen Breyer, 67 – form the court’s liberal bloc. They vote regularly for the separation of church and state, against the regulation of abortion, in favor of affirmative action and usually for federal power over states’ rights. They also have voted to limit the use of the death penalty. If Alito or Roberts finds common cause with them, it would be a major surprise.
What to watch
The areas of law to watch are those where Kennedy shares the views of Scalia and Thomas. For example, all three say the states have a “sovereign” status that shields them from being sued for violating some federal laws.
The court has said state employees who suffer discrimination because of age or disability cannot sue their employers, unlike other workers. This doctrine, if extended by future rulings, could sharply limit the rights of the more five million employees of state agencies, state-run hospitals and state colleges and universities.
Roberts has already signaled he, too, believes in the notion of states’ “sovereign immunity.” Alito could form a new five-member majority to greatly extend states’ rights.
On another key issue, Kennedy, like Scalia and Thomas, believes the free speech guarantee in the First Amendment makes most campaign finance laws unconstitutional. All three dissented two years ago when the court narrowly upheld the McCain-Feingold Act, the measure that put limits on how much corporations, unions and the wealthy could give to political parties.
In late February, the court will take a Vermont case that tests whether states can set legal limits on spending as well as contributions in state and local races. If Roberts and Alito join with Scalia, Thomas and Kennedy, the new majority could make clear that states and localities – as well as Congress – have no real power to restrict the influence of money in elections.
Reagan’s lawyers had hoped the Supreme Court would overturn Roe vs. Wade entirely and let the states again set the law on abortion. But Kennedy joined a 5-4 majority in 1992 that upheld the basic right of pregnant women to choose abortion prior to the time the fetus can live on its own.
However, Kennedy has also said abortion can be regulated and restricted. He dissented along with Scalia and Thomas when the court struck down a state law banning so-called “partial birth abortions.” Since then, however, the Republican-controlled Congress has chosen to confront the court this year by passing a federal ban on this method of abortion.
The Bush administration has urged the justices to uphold this law, and its appeal is pending – awaiting the arrival of Alito.
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