Last week, by a 5-4 vote, the Supreme Court upheld a federal law banning a type of late-term abortion doctors call “intact dilation and evacuation.” The decision, Gonzales v. Carhart, in effect overrules an earlier decision, Stenberg v. Carhart (2000), finding unconstitutional a state law regulating this particular abortion procedure.
Gonzales is a clear indication that President Bush, in choosing Chief Justice John Roberts to replace William Rehnquist, and Justice Samuel Alito to replace Justice Sandra Day O’Connor, got the solid conservatives he desired. It is also a clear indication that Justice Anthony Kennedy has moved into the swing-vote position occupied for so many years on the Rehnquist Court by Justice O’Connor.
But the Court’s term is far from over, and the abortion decision may be only the first shoe to drop. Another notable issue to be addressed this term is when it is permissible for the government to use racial classifications, and the decision may have significant repercussions down the road for affirmative action programs. In Grutter v. Bollinger (2003), Justice O’Connor provided the fifth vote to uphold an affirmative action program at the University of Michigan Law School, relying on the opinion of her mentor on the Court, Justice Lewis Powell, in the 1978 case, Regents of the University of California v. Bakke. Kennedy dissented in 2003. He is now in a position to cast the vote that might overturn both precedents.
On Wednesday, the Court heard arguments in a campaign finance case arising from efforts by an anti-abortion group, Wisconsin Right to Life Inc., to run television commercials that the Federal Election Commission believes were improper campaign commercials but that the pro-life group argues were pure First Amendment-protected speech. In 2003, in McConnell v. Federal Election Commission, Justice O’Connor’s vote was crucial to upholding major provisions of the McCain-Feingold campaign finance law, including a prohibition on broadcast advertisements by corporations and unions that mention a federal candidate and are aimed at voters within 30 days of a primary election or 60 days of a general election. Kennedy was among the dissenters, and if Justice Alito joins them, Congress might soon be facing serious restrictions on its ability to regulate campaign finance practices.
In subsequent terms, the replacement of O’Connor with Alito and the potential decisiveness of Justice Kennedy’s vote may also cause several recent important Establishment Clause precedents to be overturned. For example, two years ago in McCreary County v. ACLU, Justice O’Connor provided the fifth vote finding the display of the Ten Commandments in a Kentucky courthouse unconstitutional. Again, Justice Kennedy was among the dissenters.
When the issue returns, it will not be difficult to guess which group Justice Alito will side with. In fact, a 2005 study by Martin S. Lederman, a law professor at Georgetown University, identified some 31 cases, involving a wide range of legal and constitutional issues, decided in the previous ten years that hinged on O’Connor’s vote and that might be overruled – among the 31: Stenberg, Grutter and McCreary.
The Court is reluctant to overturn precedents, paying lip service to the notion of stare decisis (a legal term meaning “to stand by that which was decided”). Future decisions may attempt to distinguish the earlier cases. We need only examine Justice Kennedy’s efforts in his Gonzales opinion to demonstrate how the federal law was different from the law at issue in Stenberg. His arguments have struck some constitutional scholars as rather feeble (as are those portions of his opinion reflecting a paternalistic attitude toward women reminiscent of the nineteenth century).
In future opinions, it will be amusing to watch him-coauthor of that great paean to precedent, the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)-attempt to find meaningful differences from the earlier cases. But those whose fundamental rights may be dismissed or diminished, as they were last week, may be forgiven for not joining in the fun.
Justice Kennedy once told an interviewer, “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.”
One can only hope he figures it out before it’s too late.
Philip Dynia is chairman and associate professor of the political science department.
