High court's recent changes may be just first act

WASHINGTON -- If there's one person grateful that Justice Samuel Alito didn't succeed Sandra Day O'Connor a year ago, it's likely Ronald Rompilla, who then sat on Pennsylvania's death row for the 1988 robbery and murder of an Allentown bar owner.

In June, Justice O'Connor provided the crucial fifth vote to vacate Mr. Rompilla's death sentence. The judge she overturned? Justice Alito, then of the Third U.S. Circuit Court of Appeals in Philadelphia. The differences turned on how hard each judge believed defense attorneys must work to ensure that their clients receive the fair trial guaranteed by the Sixth Amendment. Justice Alito found the Constitution didn't require the public defender to do as much for his client as did Justice O'Connor.

The Rompilla case symbolizes the changes ahead for the Supreme Court, whose membership held stable from the 1994 appointment of Justice Stephen Breyer through last year, which brought Justice O'Connor's announced retirement and the death of Chief Justice William Rehnquist.

President Bush, a conservative Republican, has filled the two vacancies with jurists from the conservative legal community, who likely will nudge the court to the right. But for all the ideological fireworks over Alito, a look at the court's record over the past decade and the current lineup of justices suggests the change now won't be as pronounced as the one that would follow if one of the four liberal associate justices departs on Mr. Bush's watch. They range in age from David Souter, 66 years old, to John Paul Stevens, 85.

In his first four months, the new chief justice, John Roberts, has voted with the court's conservative stalwarts, Justices Antonin Scalia and Clarence Thomas, except for the single case where the latter two split and the chief justice joined Justice Scalia. Justice Alito, with a solid conservative record as a Reagan Justice Department official and circuit judge, may follow suit.

Justice Alito succeeds a woman who emerged over her 25-year tenure as the fulcrum. According to a statistical analysis published in the North Carolina Law Review, Justice O'Connor has been the "median justice" since 1999 -- the midpoint between Justices Stevens, Souter, Ruth Bader Ginsburg and Breyer on her left and Chief Justice Rehnquist and Justices Scalia, Anthony Kennedy and Thomas to the right.

Justice O'Connor, a Reagan appointee was, more often than not, a conservative vote. She was lionized by Democratic senators for opinions that, in some instances, upheld abortion rights and affirmative action. But from 1994 to 2004, she most frequently agreed with Chief Justice Rehnquist, in 84.2% of cases, and least often with Justice Stevens, in 66.6% of cases, says Andrew Martin, a political scientist at Washington University in St. Louis and a co-author of the study.

If Chief Justice Roberts and Justice Alito remain consistent conservatives, Justice Kennedy would become the court's new fulcrum -- and move the median to the right, Prof. Martin says. But Justice Kennedy, like Justice O'Connor, has parted ways with Justices Scalia and Thomas on such issues as sexual privacy and the death penalty, suggesting a reliable conservative majority may remain elusive. Still, in several issues that the court is scheduled to consider this year, Justice Alito stands poised to make an immediate mark.

•	High court's recent changes may be just first act A more striking shift could ensue if any of the court's four liberal justices depart on Bush's watch Wall Street Journal, Wednesday, Feb. 1, 2006 Byline: Jess Bravin, WSJ Staff Reporter