Court's fractured rulings replace talk of consensus
Published: Saturday, July 1, 2006 at 6:01 a.m.
Last Modified: Saturday, July 1, 2006 at 12:00 a.m.
WASHINGTON - Last October, liberal standard-bearer John Paul Stevens welcomed conservative Chief Justice John Roberts to the court by wishing him "a long and happy career in our common calling." In February, it was Roberts' turn to welcome fellow conservative Samuel Alito with exactly the same collegial greeting.
Yet for all the talk of consensus and harmony on the new Supreme Court, plenty of trees had to die to provide enough paper for the justices' fractured rulings on some of the most contentious cases of the court's term.
And all sides are betting that this transitional year - in which Roberts slipped into his seat just days before the term began and Alito arrived halfway through - served as a fairly mild prelude to far bigger dust-ups to come next term and for many years hence.
Roberts, the smooth and savvy chief justice from central casting, promised at his confirmation hearings last September to be a "modest" justice rather than an activist. In that spirit, he opted for a basic black robe rather than the flashy gold stripes worn on the sleeves of his predecessor, the late William Rehnquist.
Roberts has spoken publicly of his desire to achieve unanimity through narrow rulings that would offer "clarity and guidance." And he had some success, evidenced by a healthy share of unanimous opinions.
Even some cases that were expected to split the court - on abortion, campaign finance and disabled inmates, for example - were resolved unanimously and without creating upheaval.
But as more difficult cases trickled out before the justices began their summer break on Friday, it became clear that "the early buzz of peace, love, harmony and Kumbaya was probably overstated," said Ohio State University law professor Douglas Berman. "This is a closely divided court on a lot of issues that can't help but express genuine disagreements on the way critical legal issues ought to be looked at."
In a 5-4 case on Monday upholding Kansas' death penalty law, the four liberal dissenters labeled the statute "obtuse by any moral or social measure." Justice Antonin Scalia, known for his fire-breathing opinions, countered that the liberals were contributing to international "sanctimonious criticism of America's death penalty."
In a 5-3 ruling on Thursday, the court's last day, moderate Justice Anthony M. Kennedy joined the court's liberal members in finding that President Bush had overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees. Justice Clarence Thomas underscored his strong opposition by reading his dissent from the bench for only the second time in his 15-year-career.
In a major wetlands case this month, the court produced five separate opinions covering 100 pages. Roberts lamented that, because of the muddled result, interested parties "will now have to feel their way on a case-by-case basis."
The divisions aren't just along liberal-conservative lines.
Within the reinforced conservative wing of the court, there are strong and sometimes conflicting opinions.
Scalia took fellow conservative Alito to task for making "illegitimate and ill-advised" use of legislative history in one opinion. In another case, Alito faulted Scalia for making "a subtle but important mistake" in his analysis of a defendant's right to counsel.
Both men seemed to be sending the message that they're not intellectual clones: "Don't call us Scalito," as paraphrased by lawyer Kathleen Sullivan, moderator of an American Constitution Society panel reviewing the court's term.
For all of the focus on the court's new 50-something justices and the chemistry of the so-called Roberts court, it turns out that the jurist to watch is 69-year-old Anthony Kennedy, a moderate who's been on the bench nearly two decades. His role as a swing voter was overshadowed in years past by that of centrist Sandra Day O'Connor.
But now that O'Connor is gone, "the basic principle that you need to understand is that it's Justice Kennedy's world and you just live in it," said Washington lawyer Thomas Goldstein, who regularly argues cases at the high court and tracks voting trends.
As he fancifully put it, "Justice O'Connor, having been the most powerful woman in the universe, handed the keys to him on the way out the door and said, 'Have fun,' and he took up that invitation."
This term, Kennedy has provided the fifth vote on some of the court's toughest cases, including the death penalty, Guantanamo and wetlands cases.
More often than not, he has sided with the conservatives. Court watchers expect that trend to be more pronounced next term, when the docket includes contentious issues such as affirmative action and a federal ban on what opponents call partial birth abortion.
"We're almost certain to see next term an emphasis on those areas, namely abortion and race, where Kennedy is measurably more conservative than O'Connor in ways that likely will be utterly decisive," said David Garrow, a Supreme Court historian at Cambridge University.
The replacement of Rehnquist with Roberts didn't shift the court's ideological balance much, but the substitution of Alito for O'Connor clearly pushed the court to the right.
An analysis of voting trends shows Alito's affinity with the Scalia-Kennedy-Thomas-Roberts bloc to be as much as 15 percent higher than was O'Connor's.
"I think everybody really has to be aware that the court has become considerably more conservative," said Goldstein. "The real pitch in ideological cases has to be made to Justice Kennedy, and it's very much going to have to be made on a case-by-case basis."
The court's shift to the right could well sharpen in years to come, depending on the timing of future departures from the bench and the political party of the next president. The court's four conservatives - ages 51, 56, 58 and 70 - are actuarially destined to outlast the liberals - ages 66, 67, 73, and 86.
That age split has created an unusual dynamic for Roberts, at 51 the youngest chief justice in two centuries.
"The people sitting around the conference table are his parents' generation and they call him chief," said Thomas Baker, a Florida International University law professor who served as Rehnquist's first administrative assistant. "His self-deprecating style helps here. His humor helps here. And, one thing that cannot be overlooked, is how impressive his intellect is."
The court's new lineup is likely to change the dynamic in ways that extend well beyond the differences in how Roberts and Alito might vote compared with Rehnquist and O'Connor, says John McGinnis, a Northwestern law professor who worked with Alito in the Reagan Justice Department.
For example, there are some early signs that Justice Stephen Breyer may be inclined to vote more strategically to stay within the majority on certain cases, McGinnis said. And Roberts, for his part, may be assigning Breyer to write certain opinions in an effort to keep him from reflexively siding with the other liberals.
"I think that will be a story we should be following for the next five years," McGinnis said.
Comments are currently unavailable on this article