By Robert Barnes
Washington Post Staff Writer
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."
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."