In Second Term, Roberts Court Defines Itself

Those who watch the court closely say divisions have been more vividly on display this year, especially compared with what Richard Lazarus, co-director of Georgetown Law Center's Supreme Court Institute, calls last term's "honeymoon" after Roberts's appointment to the chief justice position and Alito's subsequent arrival.

"There's no question this term is different from last term, but I wouldn't say it's very different from the term before that," Lazarus said. "I don't have any sense this is more contentious than" past terms.

The justices "take their work very seriously," and dissents are often pointed and personal, Lazarus said. Then, they put it behind them and "Ginsburg and Scalia go to the opera together," he added.

What is unusual about the year is the attention that Stevens and Ginsburg have drawn for their comments from the bench. Stevens has made it clear that he believes the new conservative majority is rewriting the court's precedents. Ginsburg, in the pay discrimination case, issued a thinly veiled call on Congress to reverse the majority opinion.

"I wouldn't call it 'angry,' " said Michael C. Dorf, a Columbia University law professor and former clerk for Kennedy. "I think 'frustrated' is the better word."

When Alito's predecessor, Justice Sandra Day O'Connor, was on the court, Dorf said, the liberals had a chance to get her or Kennedy on their side for a five-member majority. "Now, they have to get Kennedy -- there's only one chance instead of two -- and on most issues he's more conservative than O'Connor."

In the battle -- what Dorf called "Roberts plus three versus Stevens plus three" -- the liberals' biggest victory was to get Kennedy on their side in Massachusetts v. EPA, requiring the agency to consider restrictions on greenhouse gas emissions in new vehicles.

Dorf also theorizes that despite Roberts's stated goal of looking for consensus, the conservative majority has decided that on some issues, five votes are all that is possible. "I do think there are more instances [of the majority] simply ignoring arguments or dismissing them," he said. "You combine that with losing, and it's got to get frustrating."

For instance, in the abortion decision, the court for the first time agreed that the government could ban a specific abortion procedure and upheld a law that did not include an exception to protect the woman's health.

Yet the majority opinion by Kennedy said that could be accomplished while respecting the court's precedents, including a decision seven years earlier to strike down a state law for lack of a health exception.

Ginsburg's dissent was designed to note that the most important change since that time is that the court is "differently composed than it was when we last considered a restrictive abortion regulation."