Supreme Court to Take On Contentious Cases in New Term

By Robert Barnes
Washington Post Staff Writer
Monday, October 1, 2007

After a bruising term that featured more close decisions and ideological splits than in its recent history, the Supreme Court begins its new term today with more of the same: emotional, complex and sometimes partisan issues that divide the justices as well as the nation.

The court's high-profile agenda features a fourth examination of how the Bush administration and Congress deal with terrorism detainees, a separation-of-powers case that tests the limits of a president's power, and a host of discrimination and employment law cases. Last week, justices added the constitutionality of lethal injection to the list and said they would, in the midst of the 2008 presidential election, decide a fiercely partisan battle on voting rights.

Waiting in the wings from the District of Columbia is a potential showdown on the meaning of the Second Amendment and gun rights.

"The court is showing a willingness to keep on taking these kinds of issues even though they are going to be divisive," said Richard W. Garnett, a law professor at the University of Notre Dame and former clerk to the late chief justice William H. Rehnquist.

But if there is a difference this year, it could be that the court -- balanced with four reliable conservatives, four reliable liberals and one man in the middle with an outsized influence -- might teeter occasionally more to the left.

That is because Justice Anthony M. Kennedy's starring role last term -- he was the only justice in the majority in each of the court's record number of 5 to 4 decisions -- seems likely for an encore but in a different direction.

While Kennedy's conservative views on abortion and campaign finance laws grabbed attention then, "the menu for this term is shaping up to be the other way around," said Garnett. For instance, Kennedy has voted against the government in each of the detainee cases the court has heard, and his past opinions signal the central role he is likely to play again in other areas.

"This current court is going to be about as conservative or about as liberal as Justice Kennedy," Solicitor General Paul D. Clement, who represents the federal government before the court, said in a speech this summer.

"The court [last term] had a number of cases -- important, high-profile cases -- where Justice Kennedy's jurisprudence" happened to match that of Chief Justice John G. Roberts Jr. and the other conservatives, Clement said. "But there are certain other areas that have been, and will be again, where Justice Kennedy's jurisprudence is like that of Justice [John Paul] Stevens" and the court's other liberals.

One thing is certain, the term will tell much about the still-evolving nature of the court -- Roberts has just passed his two-year anniversary on the bench, and the newest justice, Samuel A. Alito Jr., has served only 20 months. The still-new chief justice has established clear conservative credentials but has fallen short in his search for more unanimity on decisions.

Roberts is only two months away from a scary incident that made the chief justice the lead story in newspapers and network news shows, when he suffered a seizure at his vacation home in Maine on July 30.

Roberts continued his vacation after a night's stay at the hospital and has looked hale at recent public appearances, two speeches at universities and a judicial conference in Canada. He has not talked about the incident publicly, and a court spokeswoman said last week that he had no comment about what follow-up tests might have revealed or whether he is taking medication.

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