A Shift to the Right, But Not a Seismic Shift

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In the upcoming term, the court will decide such an issue in

, a case from New Hampshire involving a notification law that does not expressly allow a pregnant woman to bypass her parents when an abortion is needed to preserve her health. O'Connor's approach would have been to strike down such a law as an undue burden on the abortion right. Roberts, on the other hand, is likely to give greater weight to the parental role.

The essential rule of separation of church and state will continue, whoever is on the court. Change is likely to occur at the margin: To what extent may states accommodate religion by exempting religious groups from generally applicable laws, and to what extent may they give expression to religious values in public spaces? In two cases this year involving public display of the Ten Commandments-one from Kentucky and the other from Texas, the court upheld the Texas outdoor public display in part because it had been in place for 40 years and had not engendered public controversy, but struck down the indoor Kentucky display because the government officials had made their religious intentions clear when they erected earlier versions of the displays. Justice O'Connor voted with the majority in the Kentucky case, and with the dissenters in the Texas case. A Justice Roberts is likely to look more favorably on permitting limited references to religion in the public square, as consistent with the nation's history and values.

Justice O'Connor led the court's jurisprudence here, insisting that all use of race, even if benefiting racial minorities, had to be subjected to a high level of judicial scrutiny. She either supplied the fifth vote or wrote the majority opinion in cases striking down use of racial preferences in deciding layoffs of employees, allocating city contracts, or awarding broadcasting frequencies. However, when it came to the University of Michigan's use of race in its admissions decisions, Justice O'Connor opted for a more permissive approach. Her opinions in

and

, two cases challenging the University of Michigan's affirmative action policies, strike down the undergraduate school's rigid formulaic use of race in admissions decisions, while upholding the law's school's reliance on race as a flexible guidepost to recruiting a "critical mass" of minority students. Again, it is doubtful the court will overrule these decisions, but as new controversies arise-not controlled by prior precedent--Roberts may well be closer to Rehnquist, Scalia, and Thomas, who dissented in the Grutter decision. This would be in line with strongly held conservative views that the use of race to allocate economic or educational opportunities violates the Constitution's equal protection clause.

In

last year, Justice O'Connor authored the court's plurality opinion, insisting the government's detention of Yaser Esam Hamdi, a U.S. citizen, on U.S. soil as an "enemy combatant" required a due-process hearing to justify continued detention. In a related case,

, O'Connor joined Justice Stevens' opinion for the court holding that federal courts had jurisdiction to review the legality of the detention of non-citizens held at the U.S. facility at Guantanamo Bay. Both decisions were setbacks for the Bush administration. Given his background in government service, and his vote in support of similar issues while on the appeals court, Justice Roberts is likely to be more supportive of executive power.

In short, a Roberts appointment suggests that the Supreme Court may take a shift to the right, toward according government decisions greater deference in these hotly contested areas. It does not auger, however, a seismic shift in jurisprudence.