BTW, they have a few Black conservatives Bush appointees signal court's new direction
By Joan Biskupic
USA TODAY
Chief Justice Roberts and Justice Alito appear ready to steer bench to the right; affirmative action, abortion
issues could see big impact
WASHINGTON They are President Bush's appointees to the Supreme Court, the products of the administration's efforts to make the court more conservative.
And although most of the major decisions in their first full term together won't be announced for months, Chief Justice John Roberts and Justice Samuel Alito have signaled a readiness to move the court to the right.
In recent cases involving abortion, global warming and school integration, Roberts and Alito have been aggressive and sometimes feisty proponents of conservative views and particularly sympathetic to arguments by the Bush administration.
Their tactics have added flair to the court's public sessions and have contrasted sharply with the tentative approach that moderate Justices Sandra Day O'Connor and Anthony Kennedy often took in disputes over abortion, affirmative action and other key issues.
On an ideologically divided, nine-member court, the now-retired O'Connor was an especially key player because she generally was conservative but sometimes voted with the bench's four more-liberal justices: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
O'Connor voted with the liberals, for example, in favor of affirmative action in college admissions. O'Connor and Kennedy joined the liberals in backing abortion rights.
Now, Alito has replaced O'Connor, and he has joined the new chief justice who replaced another conservative, the late William Rehnquist in beginning to alter the court's course.
During last month's dispute over the Bush administration's decision against regulating carbon dioxide emissions and other so-called greenhouse gases, Roberts and Alito were skeptical about whether the USA is a significant contributor to global warming.
Roberts, echoing a sentiment expressed by an administration lawyer, suggested that federal regulation of emissions from cars and trucks might produce only a "marginal benefit" to the environment. Massachusetts and several other states argued that continued inaction by the U.S. government on car and truck emissions could lead to greater harm to the environment around the world.
Also last month, Roberts suggested by his questions that he was leaning toward voting to uphold a congressional ban on a midterm abortion procedure that critics call "partial birth."
While Kennedy expressed concern about how such a ban would affect women's health, Roberts again reflecting a position taken by the Bush administration challenged abortion rights lawyers who argued that the procedure known medically as "dilation and extraction" was safer than other methods of abortion. (Alito asked no questions during that session.)
And during a dispute this month over school integration programs that allow districts to consider a student's race in making school assignments, Roberts compared such diversity programs in Louisville and Seattle to school segregation policies struck down by the high court a half-century ago in Brown v. Board of Education.
Alito, suggesting that he would support arguments brought by parents of white students who were denied their choice of schools, also bristled at the notion of using race as a factor in efforts to diversify school systems.
He indicated that even if the intent of such programs is admirable, the programs' treatment of students is reminiscent of the "separate but equal" doctrine that the court rejected in Brown.
Legal and political conservatives have been pleased with the new justices' approach.
At the annual meeting of the conservative Federalist Society last month, outgoing Senate Majority Whip Mitch McConnell, R-Ky., praised Roberts' and Alito's confirmation to the high court as "signature achievements" of the Congress that Republicans controlled for more than a decade.
After oral arguments in the school integration cases on Dec. 4, Ward Connerly, a former University of California regent who has fought race-based policies nationwide, said he was heartened by comments from Roberts and Alito and believes the court is headed toward rejecting the Seattle and Louisville programs.
"When people go through the Senate (confirmation) process" for judicial nominees, "you think that you might be getting some insight into their intelligence and demeanor," Connerly said last week. "But you never really know because the hearing process is fraught with theater."
Connerly said he interpreted the session on school integration as a sign that the court was on the verge of a new era one in which the court would not support programs that consider race to promote diversity.
"It's something whose time has come," Connerly said.
For those who are fighting policies set forth by the Bush administration, the early courtroom performances by Roberts and Alito have been disheartening.
After the arguments in the school integration cases, Theodore Shaw of the NAACP Legal Defense Fund said he walked out of the Supreme Court feeling lower than he has in years.
"If the ruling is in keeping with the way the argument went, it would be a tragedy," Shaw said, adding that school districts across the nation could have their hands tied in trying to promote racial diversity.
Roberts, 51, and Alito, 56, shared the bench for five months during the 2005-06 term, which ended in June. The term didn't reveal much about how the court might change under Roberts' leadership.
This term is likely to provide some guidance on the issue. The school integration cases heard this month had the feel of a potentially distinctive turning point for the court in dealing with government programs that have been created as remedies to past discrimination.
After Roberts declared that the constitutional guarantee of equality is intended "to ensure that people are treated as individuals rather than based on the color of their skin," Breyer countered that past rulings by the court had allowed race to be used as a factor in programs to address the lasting effects of segregation.
The liberal justice said "thousands of school districts" could have to change their enrollment policies if the court sets a new path by rejecting such initiatives.
Upcoming cases are likely to further define the conservatism of Roberts and Alito, both of whom were lawyers in the Reagan administration who went on to become U.S. appeals court judges. One dispute revolves around whether taxpayers can challenge Bush administration initiatives that encourage faith-based charities to compete for federal grants for social programs.
Beyond the court, Roberts and Alito have been revealing more of themselves as well.
In a speech before the Federalist Society in November, Alito saluted President Reagan's efforts to curtail judicial involvement in solving societal problems and exhibited self-deprecating humor as he recalled his contentious confirmation hearings before the Senate last January.
Alito noted that the Senate Hart Office Building, where his hearings were held, is near the Supreme Court and that he often walks by it. But now, Alito quipped, "I cross to the other side of the street. I quicken my step until I'm well past the building."
Alito was confirmed to the Supreme Court in a 58-42 Senate vote that reflected Democrats' anxiety over whether replacing O'Connor with Alito would lead the court to take a harsher view of abortion rights, affirmative action and other Democratic priorities.
Roberts, who has been on the court since fall 2005, has used speeches at colleges to show the humor that has served him well as a litigator and as a judge.
In court, Roberts' humor has a distinctive bite. During arguments in a recent patent case, he derided a lower-court rule for assessing when an invention should not be patented because it would have been "obvious" at the time of development.
"Who do you get to be an expert to tell you something's not obvious?" he asked. "I mean, the least insightful person you can find?"
As usually happens when the chief justice makes a joke, the spectators laughed.
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