- The Washington Times - Sunday, July 1, 2007

The Supreme Court limited abortion rights, restricted school-integration programs and gave freer rein to political advertising in the 2006-07 term, when a solid conservative majority emerged.

It was a significant, if unsurprising, term for divining the direction of the court under Chief Justice John G. Roberts Jr. It underscored the controlling influence of Justice Anthony M. Kennedy and also how a change of just one justice — in this case, Samuel A. Alito Jr. in the seat formerly held by Sandra Day O’Connor — could alter the outcome of important cases.

The Roberts-led court displayed a deep ideological split, with conservatives winning twice as often as they lost.

“It was an extraordinary successful term for the conservatives and a very significant failure for the left of the court,” said Thomas Goldstein, a Washington lawyer who argues before the court and follows it closely.

Richard Garnett, a University of Notre Dame law professor, agreed that the conservatives did well but added, “These are all still very incremental, small moves.”

The liberal justices’ frustrations boiled over in several cases in which they read pointed, emotional dissents.

“It is not often that so few have so quickly changed so much,” Justice Stephen G. Breyer said Thursday, reading from his dissent in the schools case.

More than a third of the court’s docket, 24 cases, were decided by 5-4 votes. Of those, 20 fell along conservative-liberal fault lines.

Among the 5-4 rulings:

* The court upheld a nationwide ban on “partial-birth” abortion, a ruling both sides of the bitter debate said could pave the way for further restrictions.

* The justices opened the door for increased influence by interest groups in the closing days of an election, easing legal barriers aimed at corporate- and union-financed TV ads.

* The court put new limits on the ability of local schools to ensure diversity, striking down voluntary integration plans in Louisville, Ky., and Seattle.

* In a rare win for the liberals, the court faulted the Bush administration for its failure to do anything about global warming or ground its inaction in science.

The only one in the majority on every ruling was Justice Kennedy, the Reagan appointee who at times has bitterly disappointed conservatives on social issues.

This term, he was not quite the swing voter many court watchers predicted. He sided with the conservatives about two-thirds of the time, including the decisions on abortion and public school integration.

But Justice Kennedy joined the liberals in the global-warming case and in rebuking federal and state courts in their handling of four death-row cases from Texas.

David Garrow, a Cambridge University professor who has studied the court extensively, said Justice Kennedy’s dominance is unlike anything the court has seen in at least 100 years.

“This is the Kennedy court in the most literal, substantive, extensive way,” Mr. Garrow said, adding that Justice Kennedy continued to have a moderating effect on the other conservatives.

Chief Justice Roberts, in his second full term on the bench, had critics on the left and right, most notably his seatmate and ally, Justice Antonin Scalia. Writing in the campaign-finance case, Justice Scalia said the chief justice was displaying “faux judicial modesty” by failing to acknowledge that his majority opinion in essence overturned a 2003 decision. Chief Justice Roberts made devotion to precedent a key part of his confirmation hearings.

The chief justice also testified to the Senate that he considers himself an umpire merely calling balls and strikes.

“That may be the case, but he also has moved the strike zone more to the right,” said Goodwin Liu, a law professor at Boalt Hall School of Law at the University of California at Berkeley.

In general, Chief Justice Roberts won praise for what Pepperdine University law professor Douglas Kmiec called his “sense of what it takes to form a majority coalition and to keep it.”

One area where that was not especially difficult was business cases, in which the justices often were in agreement. The U.S. Chamber of Commerce legal division said it had a record 13 victories in cases important to business interests.

Among these were three cases in which the court made it harder for plaintiffs even to get past the courthouse door.

The big issue that did not make it to the court this term was the Bush administration’s actions in the war on terrorism, including the treatment of prisoners indefinitely detained at U.S. Naval Base Guantanamo Bay, Cuba.

Yet on Friday, the justices announced they would hear an appeal in the fall by detainees who want to challenge their confinement in civilian courts.

Copyright © 2016 The Washington Times, LLC. Click here for reprint permission.

blog comments powered by Disqus

 

Click to Read More

Click to Hide