Alito to Change High Court's Configuration

Supreme Court Justice Samuel Alito's first day on the bench will be when the court reconvenes on Feb. 21. He won't be able to participate in any case in which he hasn't heard arguments, which means an eight-member court will issue some decisions.

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MELISSA BLOCK, host:

Justice Alito's first day on the bench will be when the Supreme Court reconvenes on February 21st. NPR's Nina Totenberg joins us to talk about the court's new configuration. Welcome, Nina.

NINA TOTENBERG reporting:

Hi.

BLOCK: Justice Alito will be joining in the middle of the term. What happens to the cases that have already been argued where opinions have not yet been issued?

TOTENBERG: They will be issued in the due course of time without his participation. He will have nothing to do with any case that's already been argued, because he's not eligible to participate in those cases, unless they need to be reargued because the court is tied and they want him to break the tie. But I don't think there are very many of those if any because the court seems to have gone out of its way to try to scoop up all of the most closely contested cases and dispose of them before Justice O'Conner left.

BLOCK: So they arranged the calendar in such a way that those would be taken care of first?

TOTENBERG: I'm not sure that they arranged the calendar. For example, they decided the New Hampshire parental notification case on abortion very, very quickly. They decided it unanimously and they got it out of the way, but it was a matter of weeks before that was decided. I don't think the calendar was rigged. I think they tried to get the work done, made a concerted effort to get the closely contested cases done.

BLOCK: And who decides, or how is it decided if cases are to be reargued?

TOTENBERG: Well, it's up to the court and there's no reason to reargue any of these decisions unless there's an equally divided court, four to four, and they need Alito to break the tie. In that case it would be reargued. The only alternative is to affirm the lower court judgment by an equally divided court, and that of course would mean that it has no value for other courts, it's just sort of maintaining the status quo.

BLOCK: The lower court decision stands?

TOTENBERG: Yes.

BLOCK: What about cases that are still to come that the Justice Alito will be hearing?

TOTENBERG: Well, he's already sworn in, so he's participating in the work of the court, the behind the scenes work of the court, studying, trying to get up to snuff. And there are a lot of interesting cases coming up, the Texas redistricting case on whether partisan gerrymandering can ever be unconstitutional, there's a national security case involving whether the courts have any role in setting standards for a military tribunal when there's no congressional action. There are a number of very interesting cases that he will be participating in.

BLOCK: And also cases that the courthouse to decide whether or not to hear?

TOTENBERG: Yes, and there are a number of those cases that have been sort of hanging in limbo with no court action, a case testing the constitutionality of the federal ban of so-called partial birth abortion, another national security case, the Padilla case, testing whether an American citizen captured on American soil can be held indefinitely incommunicado without charge.

BLOCK: Let's talk about the new dynamic that Justice Alito brings to the Court replacing Justice Sandra Day O'Conner who was considered the key swing vote. Now a lot of talk about the swing vote, Justice Kennedy.

TOTENBERG: That's right. Justice Kennedy is a good deal more conservative than Justice O'Conner, and just to restate the obvious, he's also not a woman and if you think that a woman's perspective has any effect at all on, for example, discrimination cases, particularly gender discrimination cases, I think it's fair to say he may not bring quite the same sensibility. We all, those of us who cover the court, expect it to get very dramatically more conservative, but at the moment anyway Justice Kennedy will be the swing vote who could hold it back from a total swing in a conservative direction on some issues.

BLOCK: And on what issues might those be?

TOTENBERG: Well, probably not state's rights, although you never can be sure. Both Justice O'Conner and Justice Kennedy were advocates of state's rights, but in the last analysis she was willing to give a little to the idea of national standards on some things in areas that Justice Kennedy was not. Justice Kennedy on the other hand was the swing vote already in striking down the juvenile death penalty. And there are other cases like that. The two of them were swing votes on abortion, he more conservative than she. He actually very rarely has found a burden on the right to abortion that he felt was undue.

BLOCK: NPR Legal Affairs Correspondent Nina Totenberg. Nina, thanks very much.

TOTENBERG: Thank you.

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