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.
Roberts's role on the court and the justices' decisions this term will be seen through the prism of the 2008 elections.
The justices themselves hate being lumped into groups: Roberts, Alito and Justices Antonin Scalia and Clarence Thomas on the right, Stevens and Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer on the left. They frequently point to areas of the law, such as sentencing, or to many business cases, in which opinions are often lopsided, or at least the usual alignments are scrambled.
But the great majority of last term's 5 to 4 decisions broke along those patterns, with Kennedy voting twice as often with the conservatives as with the liberals. And the end of the term was particularly fractious, with the four liberals taking turns reading sharp dissents from the bench.
"I think last June they were pretty happy to get away from each other," said Carter G. Phillips, a top Supreme Court practitioner at the law firm Sidley Austin.
Many Democrats and liberal activist groups are anxious to make the court's more conservative stance last year a theme for 2008, saying it is important to have Democrats in charge of the White House and Senate when the next vacancy on the court occurs.
But Thomas C. Goldstein, who heads Akin Gump Strauss Hauer and Feld's Supreme Court practice, wrote a provocative post for ScotusBlog.com arguing that the controversial cases on the court's agenda this year might aid conservatives in making the court an issue.
"The leading cases will be ones in which the more liberal position is distinctly -- even profoundly -- unpopular with conservatives," Goldstein wrote. "Even if the left ultimately does not win all of the five most significant cases of this Supreme Court term, that wing of the court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession."
And besides that, conservative activists -- wary of Kennedy's ability to side with either wing of the court, depending on the issue -- have never been as enamored of the court's work last year as liberals were outraged.
"It's a pretty good court," said John Choon Yoo, the former Justice Department official who was a leader in advocating the Bush administration's expansive view of presidential power in wartime. "But it's not everything promised."