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Decisions Indicate Supreme Court Moved Rightward This Term

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By Robert Barnes
Washington Post Staff Writer
Wednesday, July 1, 2009

For the Supreme Court, it was the year of living on the verge.

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On the verge of declaring the key provision of the Voting Rights Act unconstitutional, but then stepping back. Looking hard at whether some protections of minorities amount to violations of the Constitution, then leaving the topic for another day. Appearing sympathetic to school officials for their decision to strip-search a 13-year-old student, but shielding them only from any liability for their actions.

The court's term avoided the blockbuster decisions that at one point seemed inevitable. But its path was clear: a patient and steady move to the right led by Chief Justice John G. Roberts Jr., one that is likely to continue even if President Obama is successful in adding Judge Sonia Sotomayor to the high court -- and perhaps two others like her.

The court's conservatives made it harder for those pressing civil rights claims to get into court, and the same for environmentalists. Conservative justices raised the bar for those alleging age discrimination, a decision that liberal Justice John Paul Stevens called "an unabashed display of judicial lawmaking." They declined to find a constitutional right to DNA testing for prisoners who say the tests could prove their innocence.

While there were lopsided majorities on some high-profile cases near the end of the term, the court remained extremely divided, deciding nearly a third of its cases by 5 to 4 votes. Liberals won a few, although sometimes in cases where ideology seemed it should not matter.

Over Roberts's strenuous dissent, for instance, the court decided that excessive campaign contributions to a judge create an unconstitutional threat to a fair trial. And justices said drugmakers could not rely on federal regulation to shield them from lawsuits brought under state consumer-protection laws.

The justices' seemingly genial relations -- retiring Justice David H. Souter received a warm send-off Monday, and Justice Ruth Bader Ginsburg has spoken of their concern after her successful cancer surgery -- come in spite of passionate disagreements.

"It's more divided now than at any point in its modern history -- by far," lawyer Thomas C. Goldstein, founder of the popular Scotusblog.com, said at a briefing yesterday at the Washington Legal Foundation.

It is a familiar ideological split: Roberts, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. on one side; Stevens, Ginsburg, Stephen G. Breyer and Souter on the other. Justice Anthony M. Kennedy remains in the role of the decider, finding himself in the majority more than any other justice and siding twice as often in 5 to 4 votes with conservatives as he did with liberals.

Ilya Shapiro, a senior fellow at the Cato Institute, sees the incrementalism that marked this term's decisions as a sign of respect from Roberts.

"One thing I think is going on is that the chief justice has a devotion to the institution of the Supreme Court, and not wanting to get it out on a limb in front of public opinion," Shapiro said.

"But Roberts is, after all, a conservative," Shapiro said. "You know what his instincts are."


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