A Rightward Turn and Dissension Define Court This Term
Sunday, July 1, 2007
Chief Justice John G. Roberts Jr. started the Supreme Court term in October with sunny forecasts of strong majorities and collegial agreements based on finding common ground.
He ended it listening to a long lecture from a justice objecting not just to the most important decision Roberts has written in his time on the court, but to the way the court has changed under the chief justice.
"It's not often in law that so few have changed so much so quickly," Justice Stephen G. Breyer said in what served as a lament for liberals both on and off the court.
The court's steady and well-documented turn to the right this term came as justices confronted some of the nation's most politically charged issues -- abortion, race, free speech, the death penalty, the separation of church and state. One issue missing from that list -- the campaign against terrorism -- was added to next year's agenda with the announcement Friday that the court will review the rights of terrorism suspects detained at Guantanamo Bay in Cuba.
The year's closely won victories for the right were aided by a strong alliance between the newest justices -- Roberts and Samuel A. Alito Jr. -- and a careful selection of issues on which the conservative views of the most important justice, Anthony M. Kennedy, were already known.
Roberts and Alito voted together more often than any other pair of justices, on the right or left. Conservative activists last week said they could not think of a significant decision in which they were surprised -- or disappointed -- by how either man voted. At 52 and 57, respectively, Roberts and Alito will form the base of the court's conservative wing for years to come.
And for the most part, in the most important cases, they were able to hang onto the support of Kennedy, who had the most successful year of any justice in modern history. Kennedy prevailed in all but two of the 72 cases the court considered this year, statistics compiled by the Washington law firm of Akin Gump show.
In cases where the court's consistent conservatives -- Roberts, Alito, Antonin Scalia and Clarence Thomas -- lined up against the court's liberals -- Breyer, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg -- Kennedy swung the conservative way 13 of 19 times. In all, the court decided a third of its cases by the narrowest margin.
Kennedy's support of the right is not surprising, partly because he is more conservative than the court's previous justice in the middle, Sandra Day O'Connor, and partly because some of the most significant cases of the term were, in effect, "do-overs" from times when O'Connor was in the majority and Kennedy in the minority.
Michael Carvin, a Washington lawyer and former Justice Department official, said at a forum last week that the term presented "a confluence of cases" when Kennedy was in agreement with other conservatives. "It was all up to him," he said.
So with Alito safely on board, Kennedy wrote the 5 to 4 majority opinion upholding the Partial Birth Abortion Ban Act, which lacked the exception for a woman's health that O'Connor had insisted upon the last time the court heard a case on abortion restrictions.
And Kennedy was in the new majority when the court substantially weakened provisions of the McCain-Feingold campaign finance act that limited political advertising by corporations and labor unions. O'Connor had said the provisions were presumed to be constitutional.