A Win by McCain Could Push a Split Court to Right

It is telling that Kennedy, currently the court's most influential justice, is never mentioned as a model by either McCain or Obama. Kennedy's iconoclastic views -- conservative on some constitutional questions, more liberal on others -- would not appeal to either candidate's base.

Kennedy's record this year is not as auspicious as last year's, in which he was in the majority of every one of the court's 5 to 4 decisions. But his role at the end of the term cannot be overstated.

He wrote the court's decisions declaring that terrorism detainees held at Guantanamo Bay, Cuba, have a constitutional right to take their cases to U.S. courts, and that it is unconstitutional for states to impose the death penalty on child rapists. That broad decision established that capital punishment is appropriate only for the most violent of those who take another human life, and perhaps for crimes against the state such as treason and espionage.

Kennedy provided the fifth vote for the court's decision to strike the District ban on handguns and to find in the Second Amendment the right of private gun ownership. He joined the conservative majority in striking as unconstitutional the "Millionaire's Amendment" in the McCain-Feingold campaign finance reform act, which increased contribution limits for candidates with wealthy, self-financed opponents.

(McCain's endorsement of Roberts and Alito as his models for judicial appointments is somewhat ironic, since each has authored an opinion dismantling part of the senator's most notable legislative achievement.)

The addition of a conservative in the mold of Roberts or Alito to replace the court's longest-serving justice, 88-year-old John Paul Stevens, would make Kennedy's role less pivotal. For instance, it would not be hard to imagine the court's jurisprudence on the death penalty changing dramatically without Stevens, who this year announced that his 30 years on the bench had convinced him that capital punishment cannot be fairly administered.

Likewise, O'Connor had often been a pragmatic ally for the liberals on issues such as abortion rights, affirmative action and the separation of religion and government. Some of those issues already have been affected by Alito's appointment, and additional changes in those areas would seem likely.

The rush of one-vote constitutional rulings at the end of the term overshadowed the court's earlier ability to resolve equally controversial issues by larger margins. The court voted 6 to 3 on a complicated separation-of-powers case to deny the president's ability to tell courts to rehear a case. By the same margin, it said that requiring voters to present photo identification before casting a ballot was not an unconstitutional burden, an issue that starkly divides Democrats and Republicans.

It voted 7 to 2 to uphold lethal injection against a challenge that the process could sometimes cause pain that constitutes cruel and unusual punishment, and to approve a congressional rewrite of child pornography law that some said could violate First Amendment rights.

In all of those cases, the lopsided majorities were formed by members of the usually liberal wing joining conservatives.

Conservative commentators credit Roberts. "I think those [cases] reflect the success of Chief Justice Roberts's stated intent to promote what he's characterized as judicial minimalism," Cruz said. "I think it's a theme one sees heavily his term."

By that, he means Roberts wants to focus on the specific facts of the case, and demands proof that the law has caused harm, rather than finding it unconstitutional on its face.

Critics such as Steven R. Shapiro, national legal director of the American Civil Liberties Union, said such a "wait-and-see attitude" means voters' rights must be demonstrably abridged, or an inmate inhumanely executed, before the court takes action.

Roberts has also made strategic use of the one real power the chief justice has over this colleagues: the ability to decide who writes the opinion when he is in the majority. He assigned the voter identification case, for instance, to Stevens, and has reportedly urged others to forgo broad pronouncements in the interest of attracting more votes.

Cooper said the narrow opinions "really don't establish far-reaching constitutional principles that will be readily and easily applied in cases down the line."

And that may be fine for the core of the conservative wing, which could be revisiting them for years. Roberts is 53, Alito 58, and even Justice Clarence Thomas, who has been on the court for nearly 17 years, turned only 60 last week.