Finality Seems to Elude High Court's Grasp
"They are acutely aware that it is a presidential election year, and they're not going out on a limb," said Goodwin Liu, a professor of law at the University of California at Berkeley.
The court's internal left-right divisions were very much in evidence, mirroring the extent to which the country's broader split between a conservative "Red America" and liberal "Blue America" has resurfaced despite a flush of national unity after Sept. 11, 2001.
Again, Stevens's actions last week illustrate the point. A few weeks after the terrorist attacks on the World Trade Center and the Pentagon, Stevens went out of his way to put the rancor of Bush v. Gore behind him, offering a wartime toast to the chief executive, whom he called "my president," at a Chicago lawyers' gathering.
But in his dissent in the Padilla case, the World War II veteran showed just how much he has come to disagree with President Bush's conduct of the fight against terrorism. He likened Padilla's detention to the Star Chamber and called it a "form of torture."
Stevens's opinion in the Padilla case was joined by David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The court decided 19 cases by 5 to 4. In 10 of them, the majority was formed by the conservatives: Rehnquist, O'Connor, Scalia, Kennedy and Thomas, according to figures compiled by Supreme Court litigation specialist Tom Goldstein.
O'Connor and Kennedy were the swing voters again, with O'Connor joining the court's four liberals, Stevens, Souter, Ginsburg and Breyer, to create a majority in four cases, and Kennedy doing so twice.
But also striking this term were a number of important cases in which, even when there was a majority for a particular outcome, that majority could not agree on the legal reasoning.
"The court's incrementalism probably masked the deep fissures underneath the court," Goldstein said.
For example, the court ruled, 5 to 4, that police officers may not deliberately question suspects without warning them of their right to remain silent and then use the resulting confessions to set up a second, warned, interrogation.
But Kennedy, in a separate concurring opinion, said that while he agreed with that rule as it applied to the case before the court, he would not necessarily apply it to all future cases.
This mixed result, which left the full impact of the ruling still to be litigated, emerged after what appeared to be prolonged internal wrangling at the court; the case, Missouri v. Seibert, No. 02-1371, was argued on Dec. 9, 2003, and not decided until June 28.
In a companion case, U.S. v. Patane, No. 02-1183, all five conservatives voted to permit the admission of physical evidence the police found as a result of a suspect's unwarned statement. But Kennedy, joined this time by O'Connor, wrote separately to explain that he would not have gone as far as Rehnquist, Scalia and Thomas in excusing what the three called "mere failures to warn" suspects.
And the court puzzled many analysts with an opinion in Sosa v. Alvarez-Machain, No. 03-339, that permitted suits against foreign human rights abusers in U.S. courts, but warned federal judges not to endanger the executive's foreign policy prerogatives by letting too many such cases proceed.
© 2004 The Washington Post Company
The nine members of the Supreme Court pose for last year's official photograph. Seated are Justices Antonin Scalia, left, John Paul Stevens, William H. Rehnquist, Sandra Day O'Connor and Anthony M. Kennedy. Standing are Justices Ruth Bader Ginsburg, left, David H. Souter, Clarence Thomas and Stephen G. Breyer.
(John Mcdonnell -- The Washington Post)