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Tuesday, June 13, 2006 

The Changing Court

Writing in the Denver Post, John Aloysius Farrell has a column about the changes in the Supreme Court over the past two years. He states...
And last week the Supreme Court sent a jolt through American educational and legal circles by announcing that it will consider the issue [use race as a criterion when assigning students to particular schools] in its upcoming term.

The arrival of President Bush's two appointees - Chief Justice John Roberts and Justice Samuel Alito - appears to have altered the dynamic in the marble temple at One First St.

Since Roberts and Alito arrived, the court has also announced that it will weigh the constitutionality of bans on partial-birth abortion.

Does anyone want to argue that elections don't make a difference?
One cannot deny that the retirement of Justice Sandra Day O'Connor has changed the Court. I think that the Court as a whole has been nudged to the Right, but not by much. However, the nudge Right may be enough on certain issues to make a dramatic difference. I'm not convinced that the school case is going to be the rematch from Grutter that many are predicting. The particulars of the school race programs are not the same as the Michigan affirmative action cases. I'm going to wait to see the briefs until I make a call on that case. There just isn't a lot to go on right now.

The partial birth abortion case is another matter. I think that it is very likely that the PBA bans will be upheld by the Court this time. When the Court examined this in Stenberg v Carhart, it ended in a tight 5-4 decision. Notably, Justice O'Connor joined the 4 liberals to make the majority. Justice Kennedy, the current swing vote on the abortion issue, wrote a blistering (and what I would call angry and incredulous) dissent. He could not believe that the majority would strike down the PBA bans. If Chief Justice Roberts and Justice Alito side with Kennedy, Scalia, and Thomas, then the PBA bans will be upheld. Then things will get really interesting...

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