c. 2006 Religion News Service

(UNDATED) With the confirmation of Samuel Alito Jr., the Supreme Court gets a justice labeled a “judicial conservative,” a “strict constructionist,” a “traditionalist” and maybe a few other “-ists” that make him a conservative’s dream for the highest court in the land.

The Senate voted 58-42 Tuesday (Jan. 31) to confirm Alito after hearings that may be most remembered for intense questioning that often failed to extract controversial answers.

Still, Alito’s decisions and memos as a federal appellate judge, a U.S. attorney and a lawyer for the Reagan administration indicate he could move the divided high court to the right _ especially on high-profile religious and cultural issues for which Associate Justice Sandra Day O’Connor _ whom he replaces _ often issued decisive “swing votes” that angered conservatives.

President Bush, who nominated Alito, has said he favors placing “strict constructionists” on the court. The term generally refers to judges who favor text-based interpretations of the Constitution and who would not be inclined, for example, to view abortion as a constitutional right since the Constitution does not mention abortion.

On Tuesday, after the Senate vote, Bush again praised Alito for the way he looks at the Constitution.

“Sam Alito is a brilliant and fair-minded judge who strictly interprets the Constitution and laws and does not legislate from the bench,” Bush said.

While it’s impossible to forecast Alito’s exact judicial temperament on the high court, it is not too early to examine what may happen now that he has been confirmed _ that is, how the legal landscape will change if five of nine justices vote more closely in line with the hopes of political conservatives.

Throughout the 20th century, strict constructionists were appalled by new, “loose” interpretations of the Constitution that struck down anti-abortion laws and religious displays on public property, and readings that upheld affirmative action as a way to increase diversity.

Since the 1970s, justices nominated by Republican presidents have turned back some of these readings. Alito’s ascension could tilt the court almost completely against them. Justices usually respect court precedents, but the divided nature of recent decisions leaves room for overturned rulings, legal observers say.

Here’s a look at how high court rulings on abortion, affirmative action and religion could be different on a more conservative court.

ABORTION

Roe v. Wade, which in 1973 forbade states from banning first-trimester abortions, based much of its reasoning on a 1965 decision, Griswold v. Connecticut, which granted Americans a constitutional right to privacy.

The word “privacy” does not exist in the Constitution, a fact pointed out by opponents of abortion rights. Rather, the landmark Griswold decision, in which the court said the state couldn’t ban married couples from using contraception, said the right to marital privacy stemmed from other constitutional protections.

However, more recent decisions like Planned Parenthood v. Casey in 1992 have allowed states to restrict access to abortion as long as no “undue burden” is posed to a woman.

A court of five dependably conservative judges could decide to define “undue burden” in ways that make it harder to have an abortion.

“The question of whether Roe (will be) ultimately overturned? It’s possible that will happen,” said Rogers Smith, a political science professor at the University of Pennsylvania who specializes in constitutional law. “But it’s more likely that … what counts as an `undue burden’ is going to be interpreted in a number of ways that permit regulations that might previously have been seen as burdensome.”

AFFIRMATIVE ACTION

The first Supreme Court decision on affirmative action, a splintered ruling in 1978, let state universities consider race in admissions for diversity’s sake, as long as they did not use quotas to fill racial gaps in the student body.

A 5-4 decision in 2003, involving the University of Michigan Law School, reinforced the essence of that 25-year-old ruling.

O’Connor was the swing vote in 2003. The majority held that the law school’s desire to accept a “critical mass” of under-represented minorities, at the expense of other applicants, was allowable because the school was striving for a diverse student body.

She said the law school’s “narrowly tailored” use of race in admissions decisions was a constitutionally permissible way “to further a compelling interest: obtaining educational benefits that flow from a diverse student body.”

Dissenters, including Anthony Kennedy, Antonin Scalia, Clarence Thomas and the late William Rehnquist, said the law school’s reasoning violated a white woman’s claims under the “equal protection” clause of the Constitution.

Ronald Chen, associate dean at Rutgers School of Law in Newark, who was recently nominated to be New Jersey’s public advocate, said a more conservative future majority is less likely to decide that diversity is a compelling interest requiring affirmative action.

“As a practical matter, the court would definitely shift to the right on this,” he said.

RELIGION

Though mentioned by Thomas Jefferson, the idea of a “separation of church and state” entered Supreme Court majority decisions only in 1947. The words are not found in the Constitution; the First Amendment says only that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

More liberal court majorities after 1947 raised the wall between church and state, striking down specific government and school policies linked to religion on the grounds they violated the First Amendment’s “establishment” prohibition. A religious display or law aiding religious institutions had to have a secular purpose, and its primary effect could not “advance” religion.

For the last three decades Republican appointees have lowered that wall, but it can still be a significant barrier, as was seen last year in a decision against Kentucky courthouse displays of the Ten Commandments.

O’Connor voted with the majority in that 5-4 decision, which said the display violated the First Amendment’s neutrality between religion and non-religion.

In a dissent, Scalia ridiculed this idea of neutrality. He noted that presidential addresses end in “God bless America,” that chaplains open legislative sessions and that coins bear the motto “In God we trust.”

“With all of this reality (and much more) staring it in the face,” he wrote, “how can the court possibly assert that `the First Amendment mandates governmental neutrality between religion and non-religion’?”

If views like Scalia’s command the majority in future religion cases, it would be easier for governments to post religious displays in schools and other public places and to aid religious institutions, Smith said.

“There would probably be much more extensive tolerance of state and local aid to religion in one form or another, so long as it was not open endorsement (of religion), or coercion,” said Smith, author of “Liberalism and American Constitutional Law.”

“It seems clear the push would be toward the position Rehnquist long advocated _ that as long as the country isn’t establishing a `Church of the United States,’ a variety of types of aid and help to religious groups are OK.”

MO/PH END DIAMANT

(Jeff Diamant covers religion for The Star-Ledger in Newark, N.J.)

Editors: Rogers Smith in 15th graf is CQ