January 31, 2014
No, there was no sweeping new law enacted, nor was there a monumental new Supreme Court ruling.
Instead, this course change was initiated by the Senate’s confirmation of Samuel Alito to fill the departing Justice Sandra Day O’Connor’s vacancy on the Supreme Court.
As I mentioned in our profile post about Alito, Samuel Alito is the current Court’s most reliably conservative justice; true, Justices Antonin Scalia and Clarence Thomas may be more radically conservative on certain (or most) issues, but their views on other issues find them aligning with the Court’s liberal bloc relatively often – leaving Alito as the justice with the most consistently conservative voting record. And his confirmation on January 31, 2006 tipped the balance of the Court noticeably rightward.
But Justice O’Connor, whom Justice Alito replaced, was also a Republican nominee. So how were the ideological scales of the Supreme Court so tipped by Alito’s confirmation?
Because Justice O’Connor was a true swing voter. Unlike Justice Anthony Kennedy, who many regard as the current Court’s swing vote, O’Connor wasn’t merely a moderate conservative. Instead, she was not guided in her judicial decisions by ideology, but by considering the issues before the Court on a case-by-case basis (see this post for more on O’Connor).
The selection of Justice Alito as a replacement for Justice O’Connor was no coincidence, either.
President George W. Bush had originally nominated White House Counsel Harriet Miers to succeed O’Connor. However, because conservatives could not readily divine her views on divisive social issues such as abortion and same-sex marriage (largely because she had never served as a judge), they opposed her nomination.
In addition, what little was revealed of Miers’s views on such issues, including an alleged statement to then- Senate Judiciary Committee Chairman Arlen Specter that the landmark 1965 Griswold v. Connecticut decision, which struck down a state anti-contraception law on the basis of a constitutional right to privacy, was “rightly decided.”
This worked many conservatives into an even greater frenzy about Miers’s nomination, who saw O’Connor’s departure as an opportunity to shift the Court’s ideology towards the right, and O’Connor’s replacement with Miers would have most likely maintained the ideological status quo. Eventually, the level of criticism from conservatives was sufficient that President Bush was forced to withdraw her nomination.
In Miers’s place, Samuel Alito was nominated. Unlike Miers, Alito’s nomination was met with near-universal acclaim from conservatives. His unwavering conservative credentials also led to staunch opposition from Senate Democrats, which resulted in a failed filibuster attempt by Senator John Kerry and the lowest nomination vote (58 to 42) since Clarence Thomas’s in 1991 (52 to 48).
Alito was confirmed nonetheless, however, and his conservative credentials have continued to manifest almost without exception since he has taken his seat on the high court.
But has his replacement of O’Connor truly made any noticeable impact on Supreme Court decisions – and thus, on the legal direction of the nation on the whole?
Albeit, there is no definite way to know for sure. But on at least one ruling, we can be reasonably certain that the decision would have gone the other way if O’Connor still occupied her seat. And that decision isn’t an insignificant one: Citizens United v. Federal Election Commission.
Justice O’Connor has repeated criticized the decision, which was decided five to four along ideological lines. It’s safe to assume that with O’Connor taking the place of Alito (who voted with the majority), the result of Citizens United would have been the opposite.
O’Connor hasn’t revealed much more about her personal views in other specific cases, but based on her past voting record, the results of several less notable cases would have likely turned out differently with O’Connor on the bench.
It is thus easy to see how the confirmation of Justice Alito to a sharply divided Court eight years ago has recast the country’s legal direction.
And given his (relatively) young age of 63, he will likely continue to have such a major impact for the foreseeable future.