With the swearing-in of Chief Justice John Roberts last week and the nomination of Harriett Miers, the While House Deputy Chief of Staff, as a Supreme Court nominee, many have begun to analyze what these changes might mean for the outcome of future corrections-related cases.

And, with several prisoner issue cases already on the high court's docket, some say there could be some changes in how the court rules depending on who ultimately takes the seat of retiring Justice Sandra Day O'Connor. Chief among those issues is the death penalty.

“[If it is] someone with a strict, always deferring to the states [philosophy] and allowing death penalty cases to go forward like [Justice Antonin] Scalia and [Justice Clarence] Thomas, then that's a change. If it's someone who is more likely to look at the facts, the cases, the precedent and making decisions each time and respecting what the court has already said, [then it's not.]. It's momentous for the death penalty,” said Richard Dieter, Executive Director for the Death Penalty Information Center.

The nomination of Miers, who has never served as a judge, could mean a nominee who is open to different opinions, said Dieter. He added that he prefers her nomination over others who might have affirmed every death penalty case that has ever come before them.

“One would think without experience she will take time to learn and judge cases by the facts,” Dieter said.

In other cases, such as those dealing with disability rights or religious freedom, analysts believe that the court will likely remain consistent no matter who is confirmed to O'Connor's seat.

“The [court's] decisions on prison cases have not been particularly close decisions and certainly have not been close in favor of the prisoners. So, the likelihood of an enormous shift in terms of how they are decided does not seem likely, although, depending on how Judge Roberts turns out on prison matters and the attitude of Bush's other appointee, we could get some more extreme opinions,” said John Boston, Staff Attorney with the New York Legal Aid Society's Prisoner Rights Project.

David Fathi of the American Civil Liberty Union's Prison Project agreed that the Roberts and another nominee --  now Miers -- will not likely do much to further prisoner rights.

“This is a court that, as a whole, that is not terribly sympathetic to the rights of prisoners. There used to be two justices that believed that the death penalty was unconstitutional. There are no members of the current court that believe that. That's just one indication of how much this court has shifted. Whatever happens with the vacancies, we start with a court that isn't as sympathetic,” he said.

Fathi said that many of the prisoner rights cases in the last decade or so have not been close cases.

“Unlike a lot of other areas where there is a consistent 5 to 4 breakdown, O'Connor's replacement will be less decisive in this area than many other areas,” he said.

For example, this year's case involving inmates assigned to Ohio's supermax prison, the Ohio State Penitentiary, was decided unanimously in favor of a new policy that provided prisoners with sufficient due process rights before their transfer to the prison.

Also, last session's RLUIPA case, Cutter v Wilkinson, ended in a unanimous decision finding that the Religious Land Use and Institutionalized Persons Act [RLUIPA] did apply to prisoners and was not, on its face, a compromise of prison security.

“RLUIPA is odd because opinion on it doesn't break down on conventional liberal/conservative lines. Support for it was bipartisan. In a sense it's about accommodating religion and protecting prisoners, so you get unique coalitions, but it doesn't have a lot of predictive value [in terms of how the court will rule in other prisoner rights cases],” Fathi said.

What is more of a concern for some is the replacement of Justice O'Connor, who in many ways shifted her thinking over the years on some prisoner-related issues during her tenure on the court.

Current Court and O'Connor

According to Dieter, with respect to the death penalty in particular, O'Connor recently has come to a different opinion than she had when she was confirmed to the court.

“She has been a swing vote, but has swung both ways. She has written some damaging opinions for the defendant, but evolved in later years to be concerned about the question of innocence. It influenced her opinion on several issues, including mental retardation,” he said.

For example, in 2004's case Atkins v. Virginia, O'Connor voted with the majority in a 6-3 ruling that determined the mentally ill should not be subject to the death penalty.

“She voted differently depending on the case. Sometimes these were 5-4 decisions. It is going to depend on who replaces her more so that Justice Roberts replacing Rehnquist,” Dieter said.

He said the death penalty cases brought by inmates have received more consideration from the Supreme Court than they did years ago.

“It might be something to watch. They already have five cases [on the docket] that have death row inmates as well as other cases that might affect criminal law,” he said.

And, because of O'Connor's status as a swing voter and her shifts in thinking, some would like to see her hear argument for at least one more case on the 2005-2006 Supreme Court docket.

“Right off the bat there is a prison case presently before the court, Goodman v Georgia. It's a question of whether or not the ADA [Americans with Disabilities Act] applies to state prisons under the court's prior decision in [last year's] Tennessee v. Lane. There had been some sense in the disability community that having Justice O'Connor sit on the case would be important to the case,” Boston said.

In Tennessee v. Lane, the Supreme Court, in a 5-4 decision, ruled for those with disabilities and said that a state could be sued for damages. The plaintiff in the case, George Lane, sued when his access to a courthouse was hampered by the building's design.

Boston added that some disability advocates believe that the chance of success for the prisoner bringing the Georgia case would be greater with O'Connor still on the court -- which is a possibility. Arguments in the case [U.S. v Georgia, Goodman v. Georgia] are scheduled for November 9.

O'Connor has also ruled in other cases in favor of inmate petitioners.

Fathi said that O'Connor voted with the majority in a case, Hope v. Pelzer, in which the justices ruled that it was unconstitutional for corrections officers' to handcuff an inmate to a hitching post. And, she wrote the opinion in last year's 5-4 decision in Johnson v. California that stated that California's policy of racially segregating inmates during the first 60 days of their incarceration was unconstitutional.

“I think her replacement could potentially make more of a difference,” Fathi said.

Replacements

With President Bush's nomination of Miers to take O'Connor's seat, much more will be learned about her in confirmation hearings.

Most recently, Miers has served as Assistant to the President and Staff Secretary. Prior to that, she was Co-Managing Partner at Locke Liddell & Sapp, LLP and before that was President of Locke, Purnell, Rain & Harrell, where she worked from 1972 until 1999.

In addition, Miers has been the chair of the Texas Lottery Commission, the first woman president of the Texas State Bar, and in 1985 she became the first woman president of the Dallas Bar Association. She has also served as a Member-At-Large on the Dallas City Council.

In a statement Monday, Miers indicated she would strictly interpret the Constitution in her decisions, if confirmed.

"It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society. If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and help ensure that the courts meet their obligation to strictly apply the law and the Constitution." said Miers in a statement.

Some prisoner advocates, such as Dieter, said that having someone on the court who is not a judge could make for a good mix.

“She doesn't seem to be a political ideologue. [She could be] someone like Thurgood Marshall, who was a lawyer and did death penalty cases in the south. Sometimes experience other than being in the ivory tower as a judge can be a good thing. Dealing with other people's problems – even if they are the President's -- is a different perspective than that of most people on the court,” Dieter said.

Resources:

Death Penalty Information Center http://www.deathpenaltyinfo.org

ACLU – National Prison Project  http://www.aclu.org/Prisons/PrisonsMain.cfm