 |
"He is a walking constitutional amendment who would undo precedents that protect fundamental rights and liberties that Americans think are theirs forever," Neas says.
This kind of rhetoric is typical of battles over Supreme Court nominees. It implies that a single new Justice has the power to make radical changes not just in American law, but in the American way of life itself.
As Alito's Senate confirmation hearings get under way this month, it's worth asking whether that's realistic: Could one Justice—Alito or anyone else—make such a huge difference?
With the ultimate say in interpreting the Constitution, the nine Justices of the Supreme Court together hold great power to influence the course of American law and society. Any new Justice by definition changes the makeup of the Court, and Alito would be filling the second vacancy in the last year, joining the new Chief Justice, John G. Roberts Jr. So there's no question that now the Court will be less predictable, at least for a time, as well as younger on average (Roberts is 50, Alito is 55), than the one it replaces.
'Mainstream Thinking'
But some legal scholars, both conservative and liberal, doubt Alito's confirmation would cause a legal revolution. For one thing, it's hard to predict a future Justice's behavior. Justices Kennedy and Souter, for example, both appointed by Republican Presidents, turned out to be more liberal than expected.
"What you find is that the U.S. Supreme Court very seldom if ever marches very far from the conventional thinking of contemporary society," says Bruce Fein, a former Justice Department official under President Ronald Reagan. "They pay attention and are infected by mainstream thinking of what's moral and what's right and what's just."
Some liberal legal scholars also have doubts about the impact that a Justice Alito could have. Although they acknowledge that the addition of a Justice more conservative than O'Connor (which Alito is thought to be) is likely to move the Court to the right on some matters, there is still the question of what that would mean practically.
For instance, even if Roe v. Wade (the 1973 case that effectively legalized abortion nationwide) were overturned, says Richard D. Friedman, a law professor at the University of Michigan, states would be free to allow abortions, and most would, with varying conditions.
Slow Change
Eugene Volokh, a law professor at the University of California, Los Angeles, says the Supreme Court's effect on society is like that of a river on a delta, a slow accretion of sediment whose new contours are visible only over time.
"The changes are likely to be incremental, not vast," he says. "We are not going to see a radical reordering of society."
The slow pace of change on the Court is by design. Lifetime appointments mean that shifts on the Court occur over the span of several presidencies and reflect the gradual changes in society at large. Those shifts can accelerate, however, when a President is given several seats to fill, as President Bush might if another Justice retires or dies while he is in office.
Supreme Court analyst Jeffrey Segal says Alito's impact on the Court would be felt most immediately in the areas of federalism (the balance between federal and state governments) and presidential powers—important areas of the law that nonetheless do not have an immediate impact on most people's lives. In his 15 years as a federal judge, Alito has shown a willingness to question congressional laws that reduce the power of the states, and has generally been supportive of presidential authority.
But even then, the balance of powers still comes into play: If the states have more power over issues like the environment, abortion, affirmative action, etc., there is less chance that one sweeping vision will rule the country.
"Would Alito's confirmation change American life?" asks Friedman. "Hardly. Sam Alito doesn't get to write the laws. He only gets one vote that might ultimately mean that [state] legislators get to write the laws."
