How Conservative is the Supreme Court?

Test of court's conservative consistency
Orange County Register, Nov. 16, 2006, at Local 8.

The Supreme Court is presented this term with two controversial cases that will say a lot about how conservative – and to a certain extent how principled – the court really is.

The court heard arguments this month in a challenge to a $73.5 million jury award against Phillip Morris. The cigarette manufacturer is arguing that the jury award is excessive and thus violates the due-process clause of the 14th Amendment. And there is the big constitutional issue. Do the words, "No state … shall deprive anyone of life, liberty, or property, without due process of law" contain a substantive right for a corporation not to be penalized excessively?

Justices Antonin Scalia and Clarence Thomas have always maintained that the "due process" clause does not contain any substantive rights. Whether the issue is abortion, sodomy, or monetary damages against a corporation, they always ask the same question: What does this have to do with the federal Constitution? You don't like these jury awards, take it up with your representatives and place a cap on such "runaway" jury awards. Justice Ruth Bader Ginsburg – a fan of substantive due process in the personal-liberties arena – usually votes with Scalia and Thomas.

The keys are going to be the latest appointees: Chief Justice John Roberts and Justice Samuel Alito. I don't see how someone can rationally argue that the due process clause provides for substantive rights when it comes to corporations, but not when it comes to personal liberties. At least Scalia and Thomas have been consistent here. In other words, if Alito and Roberts rule in favor of Philip Morris, they will lose a certain amount of legitimacy if they then turn around and vote to overturn Roe v. Wade.

The court also heard arguments this month in a challenge to the federal ban on "partial-birth" abortions. A few years ago, the justices ruled 5-4 that a Nebraska law against the procedure was unconstitutional because it did not provide an exception for the health of the mother. The federal law, similarly, provides no such exception. So it should be a slam-dunk, right? Not exactly.

For one, the swing vote in the Nebraska case, Justice Sandra Day O'Connor, has retired and has been replaced by Justice Alito. So everyone seems to think it boils down to Justice Kennedy, who dissented in the Nebraska case. They are hoping that his respect for precedent will motivate him to strike down the federal law. As we saw in Lawrence v. Texas, Justice Kennedy has no problems striking down precedents (in that case he overturned a 17-year-old precedent finding in the U.S. Constitution a right to homosexual sodomy). However, in the Nebraska case, he wrote an impassioned dissent arguing against the majority.

Abortion should not be the issue, though. One of the legacies of the Rehnquist court (and the so-called conservatives) has been federalism; the notion that the federal government has limited powers and any action taken beyond those enumerated powers is unconstitutional. For example, in 1995 the Supreme Court ruled that Congress could not pass legislation, using its legitimate power to regulate interstate commerce, to outlaw gun possession near schools. To the conservatives, gun control in and around schools had nothing to do with regulating interstate commerce.

Five years later, the same conservatives (Rehnquist, O'Connor, Scalia, Kennedy and Thomas) struck down a federal law that purported to protect women from violence, because, again, violence against women has no nexus to regulating interstate commerce.

So if the Supreme Court votes to uphold the federal partial-birth abortion ban, the court at least tacitly would be saying the procedure has something to do with regulating interstate commerce. Violence against women has nothing to do with interstate commerce but violence against a fetus does?

If the conservatives vote to uphold this law, without adequately explaining why this does not present a federalism question, it will show them to be as result-oriented as their liberal counterparts have been accused of being. Likewise, if Alito and Roberts vote to give a reprieve to Philip Morris they will undermine their legitimacy if they ever vote to strike down Roe v. Wade.