In Second Term, Roberts Court Defines Itself
Monday, June 25, 2007
In the final days of the Supreme Court's term, the stage is set for the divisions that narrowly but decisively split the justices on social issues to be on full display.
The court has already decided more cases on 5 to 4 votes this term than in all of last term -- some of them favoring the court's liberal wing, more won by the conservatives. This week, the opportunity is there for the court reconstituted under Chief Justice John G. Roberts Jr. to make a bold statement.
The cases remaining concern some of the most divisive of social and policy questions: the use of race in public school admission programs; the constitutionality of advertising restrictions in the McCain-Feingold campaign finance act; whether ordinary taxpayers have the right to sue over what they perceive to be violations of the separation of church and state.
Justice Anthony M. Kennedy, the only member of the court to be in the majority in all 16 of this term's 5 to 4 decisions, has sided more consistently with conservatives in recently announced cases.
The result has been important rulings providing more protection for employers fighting claims of past discrimination, limits on prisoner rights and death penalty appeals, and the term's signature decision -- reversing the court's jurisprudence on abortion restrictions to uphold the federal Partial Birth Abortion Ban Act.
The conservative opinions, with the exception of the abortion ruling, have been for the most part low-key in tone and shaped by what the authors said was a strict reading of congressional statutes. The liberal justices have responded in unified dissents to amplify their unhappiness.
"It is intolerable for the judicial system to treat people this way," Justice David H. Souter wrote for colleagues John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer about a lawsuit dismissed because a prisoner filed legal papers late, the result of a judge's error.
Stevens charged that a recent majority opinion "thoroughly misrepresents," "mistakenly assumes" and "inaccurately states" the facts in an appeal of a death sentence.
And the term may well be remembered for the normally modest Ginsburg's decision to buck tradition and read dissents twice from the bench -- once in the abortion decision and again in the ruling that Title VII of the Civil Rights Act does not allow for lawsuits alleging past discrimination.
"In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination," she said in her bench statement in Ledbetter v. Goodyear.
When Justice Samuel A. Alito Jr. was asked after a recent speech which members of the court were no longer speaking to each other, he answered with the justices' common refrain: Relations are always cordial, and there is never a harsh word passed in private conferences.
"Nobody's not speaking to each other," he said. He added that it is "very different than what people might think reading some of our opinions."