Where the Court Stands Now

With Samuel Alito finally seated on the Supreme Court, justices who are conservatives on moral issues like abortion are now one vote short of being a majority. Unless, perhaps, the one vote is — to a limited extent — already in place.



Besides Alito, the Supreme Court's conservatives are Justices Antonin Scalia and Clarence Thomas, and — it is thought — Chief Justice John Roberts. Lined up on the other side of the ideological gulf are four clear-cut liberals: Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

That leaves Anthony Kennedy. And Justice Kennedy is a complicated case.

When Ronald Reagan named him to the Supreme Court in 1988, people believed that Kennedy, a Catholic, would be a reliable conservative vote. Instead, the former federal appeals court judge from California was apparently socialized into the mindset of his liberal colleagues.

Over the years, Kennedy, now 69, has helped uphold legalized abortion, spoken for the court in overturning anti-sodomy laws (and thus given a boost to the drive for same-sex marriage, despite assurances that that wouldn't happen), and just last month delivered a majority opinion rendering the same service to the cause of physician-assisted suicide.

In the latter case, the court ruled 6-3 that the Federal Controlled Substances Act does not empower the attorney general to act against Oregon doctors who give lethal drugs to terminally ill patients who ask for them. Oregon legalized assisted suicide in 1994 and so far remains the only state to do so.

Now that Sandra Day O'Connor finally has left the Supreme Court, Kennedy is supposedly the tie-breaking “swing vote.” As his record suggests, though, on moral issues he generally swings to the libertarian side.

But the story is more complicated than that.

Back in 1992, in a case called Planned Parenthood v. Casey, Kennedy joined O'Connor and Souter in a famous, some would say infamous, opinion upholding Roe v. Wade, the literally unprecedented 1973 decision by which the court legalized abortion. But there is reason to think Kennedy's understanding of the decision's effect differed significantly from the others'.

Specifically, he is said to believe that the outcome in Casey left the way open to banning partial-birth abortion. As a subsequent decision made clear, his colleagues disagreed. If this is correct, it is possible that Anthony Kennedy could be the fifth vote needed to impose more than cosmetic limits on abortion.

But all this is speculation, and in any event Kennedy at best will never be a robust judicial champion of traditional morality. The only sure way to accomplish a lasting halt in the Court's ongoing drift toward relativism and libertarianism is through the nomination and confirmation of a strong moral conservative.

There is no guarantee that will happen soon, but it could, even as early as next summer. John Paul Stevens is 85 years old with 30 years on the Supreme Court. Ruth Bader Ginsburg is said to be in frail health. Sometimes it is even rumored that David Souter isn't happy in his work.

George W. Bush will be president through 2008, and if Bush gets to nominate another justice, his choice is likely to be at least as conservative as Roberts and Alito apparently are. And then? Then we will witness a Senate confirmation battle that will make the recent scrapping over Roberts and even Alito look pale by comparison. The Supreme Court has moved a long way toward moral sanity in the last six months, but it still has a long way to go. The going could get very rough.

Russell Shaw is a freelance writer from Washington, DC. You can email him at RShaw10290@aol.com.

To purchase Shaw's most popular books attractively priced in the Catholic Exchange store, click here.

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Russell Shaw is a freelance writer from Washington, DC. He is the author of more than twenty books and previously served as secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference.

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