Narrow Victories Move Roberts Court to Right
Decisions Ignore Precedent, Liberal Justices Contend

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.

"Someone like Ginsburg, who used to be a cautious liberal, is now an angry liberal," said Neil S. Siegel, a professor of law at Duke University and a former law clerk of Ginsburg's.

And the liberals' dismay has been evident even in what might otherwise have been relatively minor, technical cases. On June 14, Thomas announced a 5 to 4 ruling in which the conservatives said that a convicted murderer could not pursue an appeal because he had missed a filing deadline, even though his attorney had relied on a judge's erroneous assurance that he had enough time.

"It is intolerable for the judicial system to treat people this way," Souter wrote. The majority could reach its result, he said, only by overruling two little-known cases from the 1960s.

As Roberts read his opinion in the schools cases yesterday, Breyer shifted in his chair, rubbed his temples and occasionally shook his head. When his turn came to read his dissent, Breyer spoke heatedly for almost a half-hour, much longer than the chief justice himself had taken to read his opinion.

The 77-page opinion, twice as long as any other dissent Breyer has written, clearly occupied much of Breyer's time and energy during the term.

As his liberal colleagues have done in their dissents, Breyer accused Roberts and the conservatives of violating stare decisis, the legal principle that decisions should generally be left undisturbed.

"The majority is wrong," Breyer said. "It's not often in law that so few have changed so much so quickly."

The charge of ignoring or twisting precedent stings, because it is essentially an accusation that the conservatives have abandoned the judicial restraint that they so often preach, in pursuit of policy results they favor.

And Roberts, who pledged "judicial modesty" and respect for precedent in his 2005 confirmation hearings, has responded, defending his rulings as applications of the court's existing doctrine.

In the campaign finance case, he argued that past rulings permitted the court to entertain challenges to specific applications of McCain-Feingold and that his decision to permit a Wisconsin antiabortion group's television ad was consistent with case law that barred regulation of all ads except those that expressly advocate the election or defeat of a particular candidate.

Yesterday, Roberts peppered his opinion with phrases such as "under our existing precedent" and "the established law." He also frequently buttressed his arguments with quotations from the writings of O'Connor, as if to emphasize that his views were well within the court's historical mainstream.

"I thought Roberts was trying to wrap himself in Sandra Day O'Connor," said David J. Garrow, a senior fellow at the University of Cambridge, England.

Roberts also responded in kind to Breyer, arguing that his dissent "alters or misapplies our well-established legal framework" and that his "appeal to stare decisis rings particularly hollow."

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