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While the past several weeks haven't yielded many Supreme Court decisions on hot-button social issues, two developments within one week's time may signal the gelling of new personalities-and judicial philosophies-on the nation's highest court.
On June 5, the justices agreed to take up two cases that could end the use of racial preferences in public schools. And on May 30, the court issued its first ideologically aligned 5-4 decision since Chief Justice John Roberts and Justice Samuel Alito joined the court.
Both actions may turn as much on the retirement of Justice Sandra Day O'Connor as on the addition of new players to the bench. At issue in Garcetti v. Ceballos, decided on May 30, was whether a public employee's job-related speech is protected by the First Amendment-in particular if that employee is "whistle-blowing."
In February 2000, Richard Ceballos was working in the Los Angeles district attorney's office. After a tip from opposing counsel in a case, Mr. Ceballos found that a sheriff had misrepresented facts to obtain a search warrant. He notified his employers, the prosecuting attorneys, of the discrepancy, but deputy district attorneys decided to go forward with the case, anyway.
Mr. Ceballos then notified defense attorneys of the flawed warrant and was subpoenaed by the defense in a motion to dismiss the case. The judge denied the dismissal motion and Mr. Ceballos was removed from the prosecution team. He claims that shortly after his whistle-blowing, he was denied a promotion, demoted, and transferred.
In the lawsuit that found its way to the high court, Mr. Ceballos claimed his supervisors violated his First Amendment right as a citizen to raise concerns about official misconduct. Opposing attorneys argued that Mr. Ceballos was not acting as a citizen but as an employee and that his employers acted within their rights in disciplining him.
Attorneys for both sides argued the case in October 2005 with Justice O'Connor still on the court, but reargued it in March 2006 after she retired, and with Justice Alito newly confirmed. The newest jurist tipped the Garcetti vote along conservative lines, with Justices Alito, Thomas, Scalia, Kennedy, and Chief Justice Roberts ruling that the Constitution does not insulate public employees from employer discipline when those employees make statements pursuant to their official duties.
Had she remained on the court, Ms. O'Connor might well have swung the decision the other way. Her presence, said Liberty Counsel president Mathew Staver, might also have affected whether the court granted certiorari on June 5 in racial integration cases involving school systems in Seattle, Wash., and Louisville, Ky. In 2003, in a case involving affirmative-action practices at the University of Michigan, Ms. O'Connor sided with the majority when the court ruled that higher education had a "compelling" interest in regulating campus diversity.
Justice O'Connor "was the driving force in the Michigan affirmative-action case," said Mr. Staver. "O'Connor said she believed that affirmative action would end within 10 years, but that the Constitution, for now, supports it. That doesn't make sense-either the Constitution requires affirmative action or it doesn't. There is no 'timing out' of constitutional provisions. That's what you find with judicial activists. I don't think you'll find that with Alito and Roberts."
Evidence does suggest that Justice Alito, Ms. O'Connor's replacement, may be less likely to support government meddling in schools' racial make-up, the issue at stake in both the Seattle and Louisville cases. As an attorney in the Reagan justice department in 1985, he wrote that he was "particularly proud" of the administration's efforts to battle against racial and ethnic quotas.
The Seattle and Louisville cases, both to be heard next term, will test the durability of the so-called "Roberts Effect," the moniker some observers use to refer to the marked increase in collegiality on the high court since John Roberts took over as chief justice.
An unusual spate of unanimous and per curiam decisions beginning last fall prompted court-watchers to speculate about whether the solicitous trend-which included a statelier atmosphere in the courtroom itself as well as an increase in closed-door discussions among the justices-was meaningful or merely a honeymoon. But during a commencement address at Georgetown University on May 21, Mr. Roberts said he has been actively working toward greater consensus on the court by deciding hot-button cases on narrow grounds.
The chief justice told Georgetown graduates that America benefits when the high court avoids making 5-4 decisions that have a sweeping national impact. "If it is not necessary to decide more to a case, then in my view it is not necessary to decide more to a case," Mr. Roberts said. "Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."
Over the past three months, the trend toward fewer 5-4 splits-or 5-3 splits before Justice Alito was seated-has continued on the Roberts court, with only four of 22 cases so closely decided. (A fifth case, Hartman v. Moore, was decided 5-2 , but was argued before Justices Roberts and Alito joined the court.) The remaining cases yielded seven unanimous decisions, four per curiam rulings, and six in which a half-dozen or more justices formed the majority.
Still, Heritage Foundation legal studies director Todd Gaziano is reluctant to put too much stock in the court's new collegiality. "I don't think collegiality will suddenly make Ginsberg more reasonable on abortion," he said.
Though he conceded that the Roberts court has issued fewer closely divided opinions, Mr. Gaziano notes that some potentially contentious decisions have yet to materialize this term. Among them: Hamdan v. Rumsfeld, in which the court will address the president's wartime powers; League of United Latin American Citizens v. Perry, which will decide the constitutionality of redistricting in Texas; and Neil v. Vermont Republican State Committee, a case that pits campaign-finance laws against freedom of speech and association.
In what may be the beginning of the end of a high-profile eminent domain dispute, the New London, Conn., city council on June 5 voted 5-2 to evict holdout homeowners who are refusing to make way for private, for-profit development.
The standoff initially pitted homeowners in Fort Trumbull, a neighborhood set along the Thames River, against New London officials. The city wanted developers to give Fort Trumbull a makeover, installing a hotel, convention center, and upscale condominiums, but seven homeowners refused to sell their property. When the city invoked eminent domain in an effort to seize their property, the residents sued.
The case, Kelo v. City of New London, went all the way to the Supreme Court, yielding a controversial 5-4 ruling in which the justices upheld the city's right to seize the homes. The decision marked a sharp departure from previous eminent domain law, in which municipalities had seized private property only in order to make room for public improvements such as highway expansion.
After the Kelo ruling, five of the New London plaintiffs settled with the city, one just prior to the June 5 eviction vote. Institute for Justice attorney Scott Bullock, who represents the holdout residents, said plaintiffs Michael Cristofaro and lead plaintiff Susette Kelo are considering appeals to state government to ask that state funding for the Fort Trumbull development be pulled. He said they also may engage in civil disobedience: "This is a civil-rights struggle to save poor and working-class people from eminent domain abuse."