Alito May Quickly Affect Laws

Judge Samuel A. Alito Jr., who is poised to join the Supreme Court by the end of this month, is likely to have an immediate impact in the areas of abortion, religion and the death penalty.

Alito’s arrival also would set the stage for far-reaching changes in two areas of law that went almost unmentioned during his Senate hearings: election campaigns and the environment. Both issues are to come before the high court next month.

The Senate Judiciary Committee wrapped up a weeklong hearing on Alito’s nomination Friday and is expected to approve him on a party-line vote as early as this week.

By succeeding centrist Justice Sandra Day O’Connor, President Bush’s nominee could tip the balance to the right on about half a dozen issues on which the justices have been closely split.

Last year, for example, O’Connor cast the fifth vote when the court ruled that government officials may not prominently display the Ten Commandments in a public building. By contrast, Alito, during his years as an appeals court judge, favored a greater accommodation for religion in public life rather than a strict separation of church and state.

Alito, like new Chief Justice John G. Roberts Jr. worked as a young lawyer in the Reagan administration. If confirmed by the full Senate, Alito would join Roberts in serving alongside an alliance of earlier Reagan-era conservatives: Justices Antonin Scalia, Clarence Thomas and the less-predictable Anthony M. Kennedy.

The three justices dissented two years ago when a 5-4 majority, joined by O’Connor, upheld the McCain-Feingold Act and its limits on big-money contributions from corporations, unions and the wealthy. A second set of provisions barred those groups from funding broadcast ads 60 days before a federal election.

Scalia, Thomas and Kennedy argue that these government-imposed limits on campaign contributions and political ads violate the 1st Amendment’s guarantee of freedom of speech. If Roberts and Alito agree with that, they could reshape U.S. election law.

The court is set to hear a campaign spending case next month that began as an effort by liberal reformers to further restrict the effect of money in politics.

In 1997, the Vermont Legislature under then-Gov. Howard Dean passed strict limits not just on contributions, but also on how much state and local candidates can spend. For example, candidates for the state Legislature could spend no more than $4,000 on their campaigns.

The Vermont law challenged part of the Supreme Court’s 1976 Buckley vs. Valeo decision that set a confusing rule: Government can restrict contributions to candidates, but it cannot restrict how much the candidates spend. Nonetheless, a U.S. appeals court in New York upheld Vermont’s limits last year, and lawyers for the Republican National Committee appealed it to the Supreme Court.

The justices are to hear the case in late February. If Vermont wins, it would clear the way for other states -- including California -- to adopt new limits on spending on state and local campaigns. But with Alito’s prospective arrival, experts say it’s more likely that the court will rule that the 1st Amendment forbids limits on campaign spending.

In a separate case, the high court is to hear a challenge Tuesday on the second set of McCain-Feingold provisions, involving corporate spending on broadcast ads. If the justices are closely split, and if Alito is confirmed, they can hold the case -- Wisconsin Right to Life vs. Federal Election Commission -- until Alito is seated and can take part in deciding it.

The reach of the environmental laws is to come before the court in late February. Property rights activists have urged the justices for years to protect landowners and developers from the effects of the Endangered Species and Clean Water acts, which include preserving wetlands.

In 1972, Congress made it illegal to discharge pollutants into “navigable waters.” Because water flows downhill, federal environmental protection officials have interpreted this provision to regulate tens of thousands of inland streams, hundreds of thousands of acres of wetlands and even creek beds that have water only on occasion.

After Roberts became chief justice in October, the court announced it would hear a property rights case from Michigan. John Rapanos, a landowner, was prosecuted and fined for having filled in wetlands on a farm field 20 miles from Lake Huron.

The government said there was a “hydrological connection” between his field and the Great Lakes via several small streams. The Pacific Legal Foundation, a property rights group in Sacramento representing Rapanos, argues that the court should rein in the environmental regulators. The group says the 1972 law covers only rivers, lakes and bays on which ships can travel.

“Hopefully, the court has taken this case to end this abuse of federal power under the Clean Water Act,” said Reed Hooper, a lawyer for Rapanos.

On the death penalty, Alito is likely to solidify a five-member majority to make it harder for judges to overturn convictions and death sentences. In recent years, O’Connor joined the court’s more liberal bloc to overturn death sentences because lawyers had failed to present evidence that might have swayed a jury in favor of leniency.

Questions about abortion dominated much of Alito’s hearing before the Senate Judiciary Committee last week. In his answers, Alito refused to pledge to uphold Roe vs. Wade, the 1973 decision that legalized abortion nationwide. He said only that he values precedent and that it would take a “special justification” to reverse the ruling.

The court is not likely to face a question of overturning Roe vs. Wade in the next few years. Five of the current justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer and Kennedy -- have voted to uphold the abortion right. Only Scalia and Thomas have called for the abortion decision to be reversed outright.

However, the justices are likely to decide soon on whether to allow more government restrictions on abortion. One pending case tests whether Congress can impose a national ban on an abortion procedure known by its critics as partial-birth abortion.

Five years ago, the court struck down a similar state ban on a 5-4 vote, with O’Connor in the majority. Undeterred, the Republican-controlled Congress passed a new measure in 2003 to outlaw this abortion method, sending the issue back to the Supreme Court. The justices have the case before them now and would be likely to take up the issue shortly after Alito’s prospective arrival on the court.

Alito might not be a sure vote for Bush when the commander in chief claims an “inherent authority” to act outside of federal law to protect national security.

Democrats repeatedly have questioned Bush’s broad claims of executive power, including the authority to imprison Americans classified as “enemy combatants” without charges or a hearing, or to order electronic surveillance on Americans without first obtaining a warrant, as Bush has acknowledged doing.

But during last week’s hearings, Alito distanced himself from Bush’s legal claim. The president does not have an “inherent authority” to go around the laws, he told the senators. “The president is bound by a statute,” he said. “The president is explicitly given the obligation under Article II [of the Constitution] to take care that the laws are faithfully executed.”

Democrats listened closely, but said they were not assured by Alito’s responses.

All eight Democrats are expected to oppose his confirmation in the committee. All 10 Republicans are likely to vote in favor of the nomination, sending it on to the Senate floor -- where, after debate, his confirmation is expected in the Republican-majority chamber.