WASHINGTON – Two conservative-driven decisions with potentially broad consequences will likely define the just-completed Supreme Court term: freeing corporations and unions to spend as much as they like in campaigns for Congress and president, and ruling that Americans have a right to a gun for self-defense wherever they live.
A key member of the five-justice majorities in both cases, and the author of the guns opinion, was Justice Samuel Alito. Though he has been on the court less than five years, Alito has had an outsize influence in firming up the court's conservative bloc.
His appointment to replace the more moderate Sandra Day O'Connor, more than any other choice in the last decade shows the importance of Supreme Court nominations. It also points up that Elena Kagan's nomination to take the place of the like-minded John Paul Stevens almost certainly will not have the same short-term impact as Alito has had.
"Of all the changes in personnel during this time of rapid change at the court, the Alito-for-O'Connor switch has clearly been the most consequential," said Paul Clement, who was top Supreme Court lawyer for then-President George W. Bush.
Indeed, nothing is likely to alter the court's current path in either direction unless President Barack Obama has the chance to replace a right-leaning justice, or a future Republican president gets to add another solid conservative vote.
The conservative trend on the court might be even stronger as long as Democrats hold Congress and the White House, said Paul Smith of the Jenner and Block law firm in Washington. "The conservative majority is going to continue to feel a need to push back in a lot of areas," Smith said.
The credit, or criticism, for many of the court's high-profile decisions goes variously to Chief Justice John Roberts, the putative leader of the court's conservatives, or Justice Anthony Kennedy, who dislikes the label "swing justice," but is always in the majority when the other eight justices split along liberal and conservative lines.
Their influence certainly was in evidence this term. Roberts was in the majority more than any other justice — 92 percent of the time — and Kennedy wrote the campaign finance decision as well as one in which the liberal justices prevailed, ruling out life prison terms with no prospect of parole for juvenile offenders in other than murder cases.
Yet the 60-year-old Alito has been a far more reliable conservative vote than O'Connor ever was. Alito also was in the majority in 5-4 rulings that supported police officers in interrogation of criminal suspects, prevented the televising of the trial over California's ban on gay marriage and probably will allow a war memorial cross to remain in the Mojave desert.
Consumer and liberal interest groups, as well as some Democrats, have complained that the Roberts-led court tilted more than ever toward business interests. Obama made the point himself with unusually critical remarks about the court's campaign finance decision in his State of the Union speech in January.
Lisa Blatt, a former Justice Department lawyer with the Arnold and Porter law firm, agreed that the court is favorable to business interests. "As long as the business community is not making a silly argument, they're going to win," Blatt said.
But the voting pattern in business cases often is not ideological. When the court called into question the conviction of former Enron CEO Jeffrey Skilling and limited the reach of a fraud law used to pursue business and public corruption, the outcome was unanimous.
The Roberts court also has shown less openness to the power of states in relation to the federal government. Roberts and Alito both spent large portions of their professional careers working for the federal government. "They don't come to the table with the same view of states' concerns," as the late Chief Justice William Rehnquist and O'Connor, said Carter Phillips of the Sidley Austin law firm, who argues frequently before the Supreme Court.
Alito, a former federal prosecutor, was a lone dissenter in one case in which the court struck down a federal ban on videos that show graphic violence against animals. That ruling cheered free speech advocates.
Two months later, Alito was in the majority in rejecting a free speech challenge to the federal law that prohibits assistance of any sort — including advice about entirely legal activities — to designated terrorist groups. Justice John Paul Stevens, whose retirement led to Kagan's nomination, joined the conservatives in upholding the law.
Obama's first high court nominee, Justice Sonia Sotomayor, was among the dissenters in that case and generally fit in comfortably this term among the liberal justices. She voted most often with Justices Stephen Breyer and Ruth Bader Ginsburg and least often with Justices Antonin Scalia and Clarence Thomas.