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A Disappointing Term
President Bush's nominees give the Supreme Court an activist nudge to the right.

Tuesday, July 3, 2007

THE SUPREME COURT last week concluded its first full term with President Bush's two nominees in place, and the outcome was simultaneously unsurprising and disappointing. The 2006-07 term was unsurprising because Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. emerged as the reliably conservative justices that we expected them to be. There was little doubt that Justice Alito's replacing Sandra Day O'Connor would shift the court measurably to the right.

But the term was also disappointing because of the unvarying, lock-step nature of the voting patterns of the two newest justices. They agreed more than any other pair, and there was no case on which they reached an unanticipated conclusion. For all the chief justice's description of the judge as an impartial umpire merely calling balls and strikes, this term made clear that one set of four conservative umpires sees one strike zone; one set of four more-liberal justices sees another; and Justice Anthony M. Kennedy mostly, but not invariably, calls pitches the same way as the conservatives.

There were exceptions to the conservative tilt -- most notably the ruling that the Environmental Protection Agency has a duty to regulate greenhouse gas emissions. In addition, the court's surprise decision to add to next term's docket a case on the rights of Guantanamo detainees suggests that a majority is unwilling to go as far as the Bush administration would like in granting the executive branch unchecked power in the war on terrorism. But in areas from abortion rights to campaign finance to school desegregation, the Roberts court changed the law in unfortunate ways.

The term was disappointing, as well, because it demonstrated the apparent futility of the chief justice's hope of achieving more consensus and even unanimity. If anything, this court seemed more fractured than ever. A high percentage of its rulings, about one-third of the cases, were decided by 5 to 4 votes, mostly split along familiar ideological lines. Tempers can be expected to fray at the end of a court term when hard cases are decided, but the angry, even intemperate, language in some of the final rulings was remarkable. Justice Antonin Scalia was scathing in his disdain for the chief justice's "faux judicial modesty" -- for, in Justice Scalia's view, overruling decisions without admitting as much -- while the liberal bloc was so infuriated with some rulings that each justice took the unusual step of reading dissents from the bench. "It is not often in the law that so few have so quickly changed so much," Justice Stephen G. Breyer said in announcing his dissent in the school desegregation case.

Most disappointing are several actions by the new justices that seem inconsistent with what we, in supporting their confirmation, had hoped would be a respect for precedent and a modest conception of the judicial role. One glaring example came in the partial-birth abortion case, in which the new conservative majority essentially overruled a decision of seven years earlier and for the first time allowed an abortion restriction with no exception for maternal health. Another was the school case, in which -- so much for judicial modesty -- the court reached out to take a pair of cases and then limited how local school systems could try to maintain integrated schools. The court junked a 96-year-old antitrust precedent and dramatically curtailed a three-year-old campaign finance ruling. These were not the decisions of a restrained court committed to cautious, incremental change.

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