The Alito/O’Connor Switch

The Alito/O’Connor Switch

Joan Biskupic*

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 Alita in January 2006.1 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 Alita is not the freshman jurist who was appointed in 198 l by Ronald Reagan2 and who, in her early years, was more aligned with Chief Justice Warren Burger and William Rehnquis t.3 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.4

That distinction may not be so important in some areas of the law, but it is definitely crucial in the statutory and constitutional issues that were so important in the recently completed Term. It is also a reminder that Justice

Author and Supreme Court reporter for the USA Today.

See Joan Biskupic, Contrast Obvious Between O’Connor, Would-Be Successor, USA TODAY, Nov. I, 2005, available at http://www.usatoday.com/news/washington/2005-11-0l-alito oconnor_x.htm (highlighting the differences between Justices Alito and O’Connor on issues such as