Civil Rights Cases: A Conservative Shift

National Law Journal. Vol. 29, No. 48 (August 1, 2007), pp. 9, 11


A few things are certain about the U.S. Supreme Court's decisions this term in the area of civil rights. It is obvious, for example, that the court is split in a sharp 5-4 divide that highlights the absence of retired Justice Sandra Day O'Connor. It is also clear that a powerful new conservative majority has emerged, led by Chief Justice John G. Roberts Jr. and solidified by Justice Samuel Alito Jr. And, finally, it is apparent that this new majority succeeded in significantly shifting the law in a number of important cases involving the freedom of speech, separation of church and state, equal protection and privacy.

What is less certain from these opinions, however, is the true extent of their reach. Court watchers, and even the justices themselves, are debating whether this term's decisions were exercises in judicial modesty or a sweeping overhaul of important precedents. In other words, did the justices simply interpret the laws narrowly, thereby bringing about only incremental changes? Or are the effects of these rulings more seismic? Did the new majority manage to effectively, yet stealthily, undermine or nullify numerous historic decisions?