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Supreme changes

Top stories of 2005 | The High Court

Issue: "News of the year," Dec. 31, 2005

Until 2005, the cast of U.S. Supreme Court justices had remained unchanged for more than a decade. Then in July, Justice Sandra Day O'Connor announced her retirement, setting the stage for a high-court drama featuring a conservative hero, a rising star, a cameo performer, and-many liberals now argue-a villain.

To succeed Ms. O'Connor, President Bush on July 19 nominated John Roberts, 50, a Washington, D.C., legal star with a nearly unparalleled record of success as a Supreme Court advocate. But on Sept. 3, Chief Justice William H. Rehnquist, 80, died after battling thyroid cancer, and the president recast Mr. Roberts as his nominee for chief justice.

For 33 years, Mr. Rehnquist had anchored the court's conservative wing. With patience, wry humor, and an encyclopedic knowledge of constitutional history and law, he gradually reoriented the court's approach to questions of church and state. Mr. Rehnquist was often the lone dissenter early in his high-court career. In 1973, joined only by Justice Byron White, he dissented in Roe v. Wade, writing that the majority, in affirming legal abortion, "has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment," since at least 36 state and territorial laws already limited abortion by the time the amendment was ratified.

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In nominating former Rehnquist law clerk John Roberts, President Bush hoped for a jurist who would guide the court with similar allegiance to the Constitution's original meaning. With a sparse paper trail and near absence of ideologically charged writing, Mr. Roberts-a D.C. appeals court judge, former Reagan White House counsel, and Justice Department attorney-proved a tough target for liberal groups aiming to shoot down Bush nominees.

During September confirmation hearings, his most strident foes on the Senate Judiciary Committee fired mostly blanks. Testifying without notes, Mr. Roberts slayed both audience and lawmakers with self-deprecating wit and command of the facts. He breezed to confirmation on a 78-22 vote and took command of the Supreme Court Oct. 1, presiding over his first case "as though he had been chief justice for 20 years," said American Center for Law and Justice chief counsel Jay Sekulow.

By then, President Bush had already tapped a new nominee to fill Justice O'Connor's seat: White House counsel Harriet Miers. A former managing partner of a 400-lawyer firm in Dallas, and first woman president of the Texas Bar Association, Ms. Miers, 60, would make only a cameo appearance in the year's high-court drama.

It was liberals this time who had an easy ride, as conservatives slugged it out over her nomination. Academics grumbled that Mr. Bush had snubbed more qualified candidates. Evangelicals demanded a known quantity, a nominee with a hard-copy conservative paper trail. Others supported Ms. Miers as a fresh-air, nonestablishment nominee whose biblical originalism in life would likely yield constitutional originalism on the bench. But, as influential GOP senators began voicing their own doubts, Ms. Miers withdrew her nomination, citing concerns over executive privilege.

President Bush on Oct. 31 filled the gap with a decidedly establishment nominee: 3rd Circuit Appeals Court Judge Samuel Alito. A former Reagan Justice Department lawyer and U.S. attorney for the state of New Jersey, Mr. Alito, 55, had amassed a 15-year record of constitutional originalism. His opinions include many rulings conservatives consider favorable (such as those protecting religious speech) and some that, while not necessarily pro-conservative (such as a ruling that struck down a partial-birth abortion ban), indicate his allegiance to the rule of law.

With the Supreme Court's ideological tilt hanging in the balance, liberal interest groups cast Mr. Alito in the role of villain. Nan Aron of the Alliance for Justice painted the nominee as a sock-puppet of the right. Ralph Neas of People for the America Way fitted Mr. Alito with a black hat and proclaimed him an enemy of civil rights. Activists on both sides of the high-court drama parsed writings that seem to reveal the judge as a Roe foe-and worked to influence swing-vote senators before the curtain rises on his confirmation hearing, scheduled for January.

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