Roberts led Supreme Court through assertive term

By Robert Barnes
Washington Post Staff Writer
Wednesday, June 30, 2010

The Supreme Court began its decision-making this term with a groundbreaking campaign finance case and ended it with a landmark gun case. In between, it established itself as a confident group of justices willing to act boldly and speak independently.

The court at times jumped without pause into ongoing controversies, sent blunt messages to Congress and the lower courts, and engaged in both bitter internal arguments and broad, big-picture agreements. The ideological differences that divide the court are unchanged -- new Justice Sonia Sotomayor fit comfortably into the liberal role vacated by Justice David H. Souter -- but took a back seat this year to more complicated picture of assertiveness.

The court upended the political scene in Arizona by putting on hold a public campaign-financing system that has been in place a dozen years. It overruled federal judges in California who wanted to beam the same-sex marriage trial to other courtrooms. Its gun decision could doom state and local laws across the nation, and its ruling that juveniles may not be sentenced to life in prison without parole for non-homicide crimes is contrary to the law in dozens of states.

There were shifting majorities in each case, but a common theme, court experts said.

"I see this court as the least deferential court since the New Deal," said Walter Dellinger, a Clinton administration lawyer and frequent Supreme Court practitioner. "It is a court that very much likes to decide things for itself. And sometimes correctly, I might add."

Chief Justice John G. Roberts Jr. continued to play a dominant role, and this year he joined the court's liberals in a few limited cases. As a result, he was in the majority of the court's decisions more than any other justice, including Anthony M. Kennedy, who has been the justice in the middle in the recent past.

"I saw Roberts moderating his position to [form] majorities this year," said John Oldham McGinnis, a Justice Department official in the George H.W. Bush administration who teaches law at Northwestern.

Added Richard H. Pildes, a law professor at New York University: "What emerged this year was really the term of the Roberts-Kennedy court. . . . The court no longer pivoted on Justice Kennedy the way it had in previous terms."

Roberts joined Kennedy and the liberal justices in the juvenile case, though he did not agree with them that life without parole for a teenager would always be unconstitutional. He broke with his fellow conservatives to agree fully that the federal government has the right to civilly confine sex offenders after they have served their prison terms.

But changing coalitions and majorities across the board were far more pronounced this year. The court decided 56 percent of its cases by either unanimous or 8 to 1 margins, compared with less than 40 percent a year ago. "The nuance and diversity among the justices' views, and varied directions of their decisions, was more apparent to me this term than in any other that I can remember," wrote Thomas C. Goldstein, a Supreme Court practitioner whose Web site, Scotusblog, compiled the figures.

"It was a really complicated term," agreed Pamela Harris, executive director of Georgetown Law Center's Supreme Court Institute.

That nuanced picture might be obscured by the case that will define the term: the court's controversial 5 to 4 ruling in Citizens United v. Federal Election Commission, which reversed decades of law and precedent and said corporations and unions can play a more active financial role in elections. It prompted a denunciation not only from the liberal members of the court but also from President Obama, who criticized the ruling in his State of the Union address.

The court avoided a sequel Tuesday when it decided not to undertake another review of the McCain-Feingold campaign finance reform act. It upheld a lower court and rejected a challenge by the Republican National Committee to the law's centerpiece prohibition on unregulated "soft money" contributions to political parties.

Citizens United and other decisions have led liberals and congressional Democrats to portray the court as a haven for corporate interests. In nominating Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens, Obama pointedly said Kagan stood for the principle that "in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

But one issue that Democrats seemed prepared to criticize -- a test of federal statutes prohibiting "honest services" fraud and used to convict corporate chiefs such as former Enron executive Jeffrey Skilling -- fizzled. That is because the court across the board agreed that the federal statute was too vague, and Roberts assigned Justice Ruth Bader Ginsburg the opinion.

It was hardly the only case in which the court criticized the work of Congress. It voted 8 to 1 to declare unconstitutional a statute that prohibited creating or selling videos that depicted animal cruelty, saying it violated the First Amendment.

"This court does not view itself as working in partnership with Congress," said NYU law professor Pildes. "If the court concludes a law is too vague, or too broad, or not clear enough in critical respects, the court will not -- as courts in the past have sometimes done -- fill in the details in ways Congress might have wanted. Instead, the Court will send the law back to Congress and put the burden on Congress to improve the law."

On criminal law, the court's record also was mixed. Liberals objected to the majority's decision that shifted to suspects the burden of invoking their right to remain silent under the famous Miranda ruling; simply not speaking for hours, the majority said, was not enough. Georgetown's Harris believes it is one of the court's more significant decisions of the year and said she thought it reflected Roberts's ability to push the court on issues he cares about.

But criminal procedure cases at the court always break along the usual divide. Justice Antonin Scalia's constitutional views, for instance, often trend in favor of defendants. Douglas Berman, who follows sentencing and criminal procedure as a law professor at Ohio State University, has called Scalia "the federal criminal defendant's best friend."

Gregory G. Garre, a former solicitor general under President George W. Bush, summed up the term by saying the court "doesn't shy away from the big issues, but at the same time seems to act in a narrow way."

Northwestern professor McGinnes agreed, saying many of the court's decisions this term seem more "symbolic." Even McDonald v. Chicago, which held that a Second Amendment right to gun ownership applies to state and local efforts to regulate guns, has little immediate impact. The court gave little guidance on which laws will be too restrictive.

"I think the effect [of the term] on American lives will be quite modest," McGinnis said.

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