Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits. In a similar vein, the Court upheld a death sentence in Washington by lessening the scrutiny applied to jury selection in such cases. Last week, the justices rejected an appeal by a prisoner who had filed his case before a deadline set by a federal district judge. Because the judge had misread the law and given the prisoner too much time—three extra days—the Court said that the case had to be thrown out.
Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.
All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.
At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly. ♦