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WASHINGTON, May 23 (UPI) -- Like the lights on an onrushing train, the U.S. Supreme Court is hurtling toward the end of its term and perhaps a new era. Real, bone-deep change in the high court occurred in January 2006 with the retirement of Justice Sandra Day O'Connor. For years, a four-member liberal bloc had been balanced by a three-member conservative bloc and two moderately conservative swing votes: O'Connor and Justice Anthony Kennedy.
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For much of her tenure, O'Connor had been unpredictable. It was hard to pin down her vote in advance of a case based on her perceived judicial or political philosophy, though she was recognized in general as a protector of a woman's right to an abortion -- a right that could be eroded along the edges by the court's makeup next year.
As for unpredictability, O'Connor joined the conservatives and Kennedy in producing the majority opinion in 2000's Bush vs. Gore -- in fact, even though the opinion was unsigned O'Connor had a large hand in writing it and ending the Florida presidential recount -- but was equally at home with the liberals when rescuing affirmative action in 2003's Grutter vs. Bollinger.
However, in 2006 the fluidly mobile O'Connor was replaced by the more static Justice Samuel Alito, a far more predictable jurist who has usually voted in concert with his fellow solid conservatives.
O'Connor's departure arguably caused more upheaval than Chief Justice John Roberts' appointment to succeed the peppery Chief Justice William Rehnquist after the latter died of cancer in 2005.
The change caused by O'Connor's resignation enhanced Kennedy's position as the sole swing vote in the new arithmetic of four liberals and four conservatives. Nowhere was that dynamic more evident than in Citizens United vs. FCC earlier this term. The ruling in the case -- essentially 5-4, though there were a number of opinions -- opened the floodgates for unrestricted corporate and union political contributions, though it preserved federal disclosure requirements. The author of the majority opinion, of course, was Kennedy,
Now, the Supreme Court is on the verge of another great change. For the first time in 35 years it will be without Justice John Paul Stevens.
Stevens, who turned 90 in April, announced he is retiring with the "rising" of the court for the summer recess, which usually occurs when business is finished in late June.
For decades he has been the leader of the liberal block, his questions from the bench commanding respect from opponents and allies alike. But the aging liberal lion has largely operated in isolation, spent every moment he could away from his colleagues and the court and was rarely the driving force behind any occasional liberal-conservative coalition.
The court's newest member, Justice Sonia Sotomayor, and Stevens' probable successor, nominee U.S. Solicitor General Elena Kagan, are still unknown factors, particularly in the broader arena of abortion. Both seem to be more amenable to compromise than Stevens.
It may take Sotomayor several years to find her legs. She joined the court last summer, succeeding retiring Justice David Souter, who along with Justice Ruth Bader Ginsburg may have been the most consistently liberal members of the Supreme Court.
Sotomayor was vocal, for a rookie, when the court heard argument in Citizens United in an unusual special session last September. But she was in the minority for that decision, and still hasn't had the chance to write the majority opinion in a major case, and may not have that chance for some time.
On the issue of abortion, as a U.S. appellate judge in New York, Sotomayor wrote the 2002 opinion upholding the Bush administration's re-imposition of the Reagan-era "Mexico City Policy."
The policy said no U.S. funds could go to non-governmental organizations that promoted abortion as a method of family planning in other nations.
In the opinion in Center for Reproductive Law and Policy vs. Bush, Sotomayor rejected a First Amendment challenge to the policy, and a challenge based on the Constitution's equal protection guarantees.
"Because this classification (banning federal funds) 'neither proceeds along suspect lines nor infringes fundamental constitutional rights,' it must 'be upheld against equal protection challenge if there is any reasonable state of facts that could provide a rational basis for the classification,'" she said, citing a 1993 high court ruling.
"Here there can be no question that the classification survives rational basis review. The Supreme Court (in 1991) has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
Kagan has never been a judge -- President Bill Clinton tried to appoint her to the Washington U.S. appeals court in 1999, but was blocked by Senate Republicans -- and has no judicial record to parse.
But as a Clinton aide in the 1990s Kagan wrote a number of memos suggesting the president compromise on a 1997 congressional ban of "partial-birth abortion" -- usually defined as any time a fetus is even partially removed from the uterus before being destroyed. Contrary to popular belief, the procedure is not exclusively a late-term procedure, and Congress banned "partial-birth" abortions at any stage in a pregnancy.
Newsweek reports she proposed the president accept a deal that left the ban intact, but provided an exception for the "health of the mother."
Clinton vetoed the ban the first time Congress enacted it in 1996, and again, despite Kagan's advice to compromise, in 1997.
Congress again enacted the ban in 2003 and President George W. Bush signed it into law.
Though the Supreme Court in 2000 had struck down a state partial-birth abortion ban in a 5-4 ruling that included O'Connor in the majority, in 2007 the Supreme Court, minus O'Connor, upheld the congressional ban 5-4.
In 2007, of course, Kennedy wrote the majority opinion.
Now, when the court reconvenes on the first Monday in October for its 2010 term, Sotomayor and, probably, Kagan will be sitting on the extreme ends of the Supreme Court bench. It will take them years and several retirements before they can make their way closer to the center of the bench, where the chief justice sits. But if they bring a conciliatory approach to the court their influence and votes will have far more impact than their seniority might imply.
With Justice Stephen Breyer already the most moderate member of the liberal bloc, the additions of a philosophically soft Sotomayor and Kagan might isolate hard liberal Ginsburg -- or might spur her to greater efforts to form coalitions, especially to defend women's rights.
