The Roberts Court: The Struggle for the Constitution Read Online Free PDF Page B

chief justice appeared to be making considerable headway on his goals. From October 3, 2005, until O’Connor left the Court at the end of January 2006, the justices issued nineteen decisions; twelve were unanimous and only two were by 5–4 votes. The 5–4 decisions involved a death penalty case, in which the majority, consisting of Roberts, O’Connor, Scalia, Kennedy, and Thomas, ruled against the prisoner; and a bankruptcy case, in which the majority, with Stevens, O’Connor, Souter, Ginsburg, and Breyer voting, rejected a state’s claim of sovereign immunity from suit. Both decisions reflected the importance of O’Connor as the longtime “swing” vote.
    The unanimous decisions included what many observers thought would be one of the term’s most controversial issues: its first abortion case in five years. The case— Ayotte v. Planned Parenthood of Northern New England —began as a challenge to a New Hampshire law barring doctors from performing abortions for teenagers under the age of eighteen until forty-eight hours after a parent has been notified. Contrary to past Supreme Court decisions, the law had no exception for medical emergencies when necessary to protect a pregnant teen’s health, only the teen’s life. The lower courts had struck down the law because of that omission.
    But O’Connor, writing for the Court, said the lower courts acted too broadly by striking down the entire law. “When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate relief?” she asked. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.”
    She said the lower court should find a solution short of invalidating the entire law. The case was sent back to the lower court with instructions to craft a narrower remedy and to determine if that remedy would be consistent with what the state legislature had intended.
    O’Connor read a summary of her decision from the bench on January18, 2006. It was her last decision as a justice. Thirteen days later, on January 31, she officially retired from the Court. That same day, Samuel Alito Jr. was confirmed by the Senate as O’Connor’s successor and took his seat as an associate justice.
    Alito’s replacement of Sandra Day O’Connor would be as critical a change on the Roberts Court as that of Clarence Thomas for Thurgood Marshall on the Rehnquist Court. Combined with the arrival that month of two cases challenging the race-based assignments of public school students, the stage was set for the true unfolding of the Roberts Court era.

CHAPTER 2

    “I said this before I even knew who Sarah Palin was, ‘I’m a momma bear just protecting her cubs.’ I said, ‘This race tiebreaker, this just isn’t right.’ ”
    —Kathleen Brose, head of Parents Involved in Community Schools, 2011
    O n a crisp morning the following December, a chill wind cut unforgivingly across the wide plaza in front of the Supreme Court and through the crowd of several thousand amassing at the plaza’s steps. The mostly high school and college-aged demonstrators waved signs urging the justices inside to “Save Brown v. Board of Education ” and “Fight for Equality” as they chanted: “Jim Crow? Hell, no! We won’t go!”
    As they prepared to march down Capitol Hill toward the Lincoln Memorial, the line of people hoping to get seats in the courtroom that day continued to grow on the Supreme Court’s plaza under the watchful eyes of the Supreme Court police.
    At 10 am sharp, the courtroom buzzer signaled those inside to stand as the justices stepped from behind the maroon velvet curtain and prepared to hear the first arguments of the day. On the calendar that morning were