There are many factors that define the current Roberts Court, not the least of which is the dominant personality and determined approach of the Chief Justice himself. But a close second, or even arguably the leading determinant of the Court’s current direction, is the replacement of Sandra Day O’Connor with Samuel Alito in January 2006. And my task today is to look at some of the cases that are freshest from the recent Term that show the consequences of this succession.
The Justice O’Connor who I will be using for a point of comparison with Justice Alito is not the freshman jurist who was appointed in 1981 by Ronald Reagan and who, in her early years, was more aligned with Chief Justice Warren Burger and William Rehnquist. Rather, I will be focusing, for purposes of these key recent cases, on the Justice O’Connor who moved to the left over time and who, in the end, controlled the Court.