The day before the Supreme Court ended its term last week, Justice John Paul Stevens, the court's 85-year-old liberal lion, mounted his seat at the mahogany bench and took aim at his conservative colleagues for "avoidance of our duty."
The same five-member majority that had ruled for George W. Bush in the disputed 2000 election had just invoked procedural reasons to dismiss the case of a U.S. citizen, Jose Padilla, who was challenging his indefinite incommunicado military detention by the Bush administration.
The five -- Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- had concluded, over Stevens's objections, that the court could not responsibly stay out of the election dispute. Now, Stevens expressed dismay that they would show judicial restraint in a case where, he said, "nothing less than the essence of a free society" was at stake.
"Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law," Stevens said, his voice seeming to tremble with emotion. "[I]f this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyranny even to resist an assault by the forces of tyranny."
Yet, in calling for decisive action, Stevens was voicing a minority sentiment -- not only in the Padilla case but also in the term as a whole.
To a surprising degree, given its confident recent strokes such as upholding affirmative action in higher education and invalidating federal laws that intrude on state sovereignty, the court proceeded incrementally, even hesitantly. In case after case, it addressed big issues without really settling them.
Though the court did subject the Bush administration to federal court oversight of its imprisonment of citizens and noncitizens as terrorism suspects, there was no majority of the court for an overall legal theory on the president's authority to detain citizens as "enemy combatants."
In a plurality opinion by O'Connor, the most moderate of the conservatives, the court basically announced that judges must balance the competing interests of security and liberty, outlined some suggestions for how to do that -- then left it to lower courts to figure out the details.
The court permitted the phrase "under God" to remain in the Pledge of Allegiance as recited by schoolchildren, but did so without deciding the core question of whether it violated the constitutional ban on official religion.
The court declined to decide whether Vice President Cheney must turn over the records of his 2001 energy policy task force. Instead, the justices prolonged the case by sending it to a lower court for reconsideration.
Even when a five-member majority clearly felt that a 1998 federal law designed to shield children from Internet pornography violated free speech, they did not strike it down outright, but ordered a lower-court trial on some narrow factual issues.
It was as if the justices, at a time when the country is involved not only in war but also a closely fought election campaign, had lost confidence in their ability to forecast the likely practical or political impact of their actions, and reined themselves in accordingly.
"In a divided nation and an election year, the court is test-driving a number of different principles without actually forking over a down payment," said Mathew S. Nosanchuk, a Washington lawyer who practices before the court.
Certainly this performance minimized the chances that any of their decisions would turn the court itself -- or future judicial appointments -- into a bigger election issue.
"They are acutely aware that it is a presidential election year, and they're not going out on a limb," said Goodwin Liu, a professor of law at the University of California at Berkeley.
The court's internal left-right divisions were very much in evidence, mirroring the extent to which the country's broader split between a conservative "Red America" and liberal "Blue America" has resurfaced despite a flush of national unity after Sept. 11, 2001.
Again, Stevens's actions last week illustrate the point. A few weeks after the terrorist attacks on the World Trade Center and the Pentagon, Stevens went out of his way to put the rancor of Bush v. Gore behind him, offering a wartime toast to the chief executive, whom he called "my president," at a Chicago lawyers' gathering.
But in his dissent in the Padilla case, the World War II veteran showed just how much he has come to disagree with President Bush's conduct of the fight against terrorism. He likened Padilla's detention to the Star Chamber and called it a "form of torture."
Stevens's opinion in the Padilla case was joined by David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The court decided 19 cases by 5 to 4. In 10 of them, the majority was formed by the conservatives: Rehnquist, O'Connor, Scalia, Kennedy and Thomas, according to figures compiled by Supreme Court litigation specialist Tom Goldstein.
O'Connor and Kennedy were the swing voters again, with O'Connor joining the court's four liberals, Stevens, Souter, Ginsburg and Breyer, to create a majority in four cases, and Kennedy doing so twice.
But also striking this term were a number of important cases in which, even when there was a majority for a particular outcome, that majority could not agree on the legal reasoning.
"The court's incrementalism probably masked the deep fissures underneath the court," Goldstein said.
For example, the court ruled, 5 to 4, that police officers may not deliberately question suspects without warning them of their right to remain silent and then use the resulting confessions to set up a second, warned, interrogation.
But Kennedy, in a separate concurring opinion, said that while he agreed with that rule as it applied to the case before the court, he would not necessarily apply it to all future cases.
This mixed result, which left the full impact of the ruling still to be litigated, emerged after what appeared to be prolonged internal wrangling at the court; the case, Missouri v. Seibert, No. 02-1371, was argued on Dec. 9, 2003, and not decided until June 28.
In a companion case, U.S. v. Patane, No. 02-1183, all five conservatives voted to permit the admission of physical evidence the police found as a result of a suspect's unwarned statement. But Kennedy, joined this time by O'Connor, wrote separately to explain that he would not have gone as far as Rehnquist, Scalia and Thomas in excusing what the three called "mere failures to warn" suspects.
And the court puzzled many analysts with an opinion in Sosa v. Alvarez-Machain, No. 03-339, that permitted suits against foreign human rights abusers in U.S. courts, but warned federal judges not to endanger the executive's foreign policy prerogatives by letting too many such cases proceed.
That opinion, by Souter for a six-justice majority, prompted Scalia to write scornfully of the court's "Never Say Never Jurisprudence."
There were exceptions to the general pattern.
By 5 to 4, the court upheld the Bipartisan Campaign Finance Reform Act, clearing the way for a ban on "soft money" donations and new regulations on "issue ads" on radio and television.
The court ruled unanimously that consumers may not sue their managed-care companies for medical malpractice under state law when a denial of coverage allegedly leads to death or injury. That put a stop to state "patients' rights" legislation and shifted all future political struggle over the issue to Congress.
Also, the court ruled that jurors, not judges, must find any facts that would result in a sentence higher than that called for in state guidelines, a ruling that invalidated state sentencing reform and threatened to invalidate federal sentencing rules as well.
But in the terrorism cases, some of the most eagerly anticipated wartime confrontations between the judiciary and the executive in modern times, the court struggled to speak with one voice.
In the pivotal case, Hamdi v. Rumsfeld, No. 03-6696, the court was asked to decide whether Bush could designate a U.S. citizen, Yaser Esam Hamdi, who was captured in Afghanistan while allegedly fighting for the Taliban, an enemy combatant and hold him in military custody indefinitely, without an opportunity to protest his innocence before an impartial arbiter.
Eight justices -- all but Thomas -- rejected the administration's contention that the federal courts could exercise no supervision over such a case.
But after that, they went their separate ways.
A four-justice plurality -- Rehnquist, O'Connor, Kennedy and Breyer -- gave the administration the mildest rebuke, agreeing that it had the authority to hold citizens as combatants -- at least in circumstances such as Hamdi's, where the citizen was detained in a combat zone abroad -- but that it would have to give him an opportunity to seek redress before "a neutral decisionmaker."
Scalia, joined by Stevens, dissented, arguing that the president has no right to hold a citizen as an enemy combatant unless Congress expressly authorizes it by suspending the writ of habeas corpus.
The unusual Scalia-Stevens alliance did show that, on the court as in Congress and the wider public, civil liberties is an issue that can unite some elements of the right and left.
But it was an alliance of only two. Souter, joined by Ginsburg, dissented, too, but on different grounds. They wanted no part of the plurality's decision to recognize even a limited presidential power to hold Hamdi as an enemy combatant.
But Souter and Ginsburg agreed to cast their votes for the part of the plurality's opinion that granted Hamdi a hearing.
Souter's opinion candidly acknowledged that, otherwise, there would be no majority holding in the case, and Hamdi would not actually get a hearing.
So much was left undecided, in fact, that some administration supporters claimed at least partial victory.
"If I were a detainee, I wouldn't be breaking out the champagne," said David B. Rivkin Jr., a lawyer here who advises the administration on terrorism issues.