ANALYSIS

Narrow Victories Move Roberts Court to Right

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By Charles Lane
Washington Post Staff Writer
Friday, June 29, 2007

The Supreme Court's decision overturning school desegregation policies in two U.S. cities yesterday culminates a fractious term in which the new Roberts court moved the law significantly to the right, legal analysts said.

In a series of 5 to 4 decisions this term, the court also upheld a federal ban on a late-term abortion procedure and gutted a key provision of the McCain-Feingold campaign finance law. Along with yesterday's schools case, each of these decisions left open the possibility of more change in areas of the law on which the court had seemingly ruled definitively within the past decade.

"Conservatives got everything they could reasonably have hoped for out of the term," said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation. "The table is set, particularly if there are more changes in the court, for wholesale changes in constitutional law. There were some incremental steps, but they were in a distinct direction and a uniform direction."

The conservatives' advance was limited by the occasional defection of Justice Anthony M. Kennedy. Yesterday's case showed Kennedy's moderating influence, as he issued a concurring opinion that may have blunted the practical impact of the court's ruling.

Because of Kennedy's continued role as a swing voter, some analysts suggested that this term's decisions may be the high-water mark for the right rather than a tidal shift.

"It is a conservative court, but at the same time, just barely so," said Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles. "The liberals are a forceful bloc and are willing to fight some old battles and win some when they swing Justice Kennedy around."

Still, Kennedy is a different kind of swing voter from Justice Sandra Day O'Connor, the centrist whom Samuel A. Alito Jr. replaced in 2006. He seems more likely than she was in recent years to side with the right in close cases. Kennedy wrote the court's opinion upholding the federal ban on what opponents call "partial birth" abortion.

This term, the justices split 5 to 4 in 24 cases, a third of the total. Kennedy sided with the four most conservative justices -- Roberts, Alito, Antonin Scalia and Clarence Thomas -- in 13 of the 5 to 4 cases, while backing liberals John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer just six times. In five other 5 to 4 cases, the court did not split along liberal-conservative lines.

The most significant victory of the term for liberals came when they secured Kennedy's vote for a ruling that required the Environmental Protection Agency to justify its refusal to regulate greenhouse gases in vehicle exhaust.

And whereas Kennedy occasionally applied the brakes to the court's conservatives, Scalia and Thomas sometimes demanded that they move further and faster to the right, suggesting that Roberts and Alito were straining to depict their rulings as consistent with the court's past cases, rather than just overruling some of them outright, as they should.

That echoed the accusations from the court's liberals, who have seemed increasingly united in their view that the Roberts court is deviating from settled law without openly saying so.

The liberal justices -- Stevens, Souter, Ginsburg and Breyer -- have taken turns reading their dissenting opinions from the bench in a show of dismay with the court's direction.


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