With the close of the term, the justices of the U.S. Supreme Court are fleeing Washington for their summer teaching gigs. And as the words of the court's opinions settle into law books, a picture is emerging of a conservative court on a slow but steady march to the right.
With each term since President George W. Bush appointed Chief Justice John Roberts and Justice Samuel Alito, their conservative clout has become clearer. Both were aggressive advocates for a conservative legal agenda in the Reagan administration, and there was little doubt they would bring that agenda with them to the court.
And yet, there have been speed bumps on the road — everything from an institutional desire not to provoke needless confrontations with a Democratic Congress to the simple lack of a fifth vote to take more aggressive stands.
Deepest Split In Recent History
The current Supreme Court is deeply split, dividing 5-4 or 6-3 in almost half its cases. Supreme Court advocate Tom Goldstein, founder of the leading Supreme Court blog, calls this the most divided term in the court's modern history.
"While it wasn't a clean sweep for the conservatives, they won really the cases that mattered the very most," Goldstein said.
Yet the court did not go as far as some liberals had feared. In the two most high-profile cases of the term, the court did not strike down the Voting Rights Act as unconstitutional, and it did not strike down a key provision of the law governing civil rights in employment.
Justice Anthony Kennedy, the swing vote in almost all closely divided cases, swung in the conservative direction most of the time, but not as far as the court's four hard-core conservatives might have wanted.
"What we saw from Justice Kennedy this year is signal after signal that he was considering taking the court to the right on a variety of issues, especially issues of race," said Yale constitutional law professor Heather Gerken. "And yet, in every single case, he didn't pull the trigger. And so I think the question is whether Justice Kennedy is firing us a few warning shots and is really going to do something more dramatic in future terms."
Goldstein has no doubt about the direction of the court. "Step by step, the court is moving the law to the right," Goldstein said. "There is no rush. John Roberts knows he's going to have this conservative majority for at least almost 10 years."
The court's 8-1 decision on the Voting Rights Act is a case in point. A small Texas district challenged the constitutionality of the landmark act because it wanted to be released from the provision requiring districts with a history of racial discrimination to pre-clear changes in voting procedures with the Justice Department. The court said the district had a good enough record that it qualified for a bailout provision in the law but ultimately walked away from a decision on the act's constitutionality. The court did issue a stern warning to Congress, however, to modernize the statute or face a more dire decision next time.
The decision, written by Roberts, has been cast as both a case of statesmanship and as an example of shrewdly making the most of a limited hand of cards when there was no fifth vote to hold the law unconstitutional. Most scholars, like Pepperdine University constitutional law professor Doug Kmiec, have little doubt that if Roberts had had Kennedy's vote, he would have gone further.
"When he can get five justices, when he can persuade Justice Kennedy in particular to come to the conservative side, he takes that victory as far as he can," said Kmiec.
There were other divided decisions in which the court did not carry out a conservative legal agenda, but Roberts was not in the majority. By a 6-3 vote, the court rejected a major effort by the Bush administration and the business community to shield pharmaceutical companies from state lawsuits. Dissenting were Roberts, Alito and Antonin Scalia. And by a 5-4 vote, the court upheld the right of the states to enforce their own consumer protection laws against nationally chartered banks. This time it was the conservative Scalia who was the swing vote, writing the opinion for himself and the court's four liberals.
But for the most part this term, the big wins went to the court's conservatives.
Highlights Of The Term
On the subject of judicial ethics, the court ruled for the first time that elected judges must disqualify themselves from cases in which interested parties gave excessive amounts of money to their campaigns, creating the appearance of probable bias. This time, Kennedy voted with the four liberals.
In a case testing whether public school authorities can strip-search a student for drugs, by an 8-1 vote the court said usually, no.
In the area of executive power, the conservative majority gave agencies new authority to change regulations without second-guessing from the courts.
In the civil rights arena, the court reinterpreted employment discrimination law in favor of white firefighters in New Haven, Conn., who claimed they were the victims of reverse discrimination, though the court did not invalidate any part of the law. Civil rights advocates suffered less visible losses in age discrimination and pregnancy discrimination cases.
In addition, the court erected new barriers to bringing civil rights and other lawsuits. By a one-vote majority, the court threw out a lawsuit against high-level Justice Department officials in a case charging that Muslims in the United States were deliberately targeted for detention without charge after the Sept. 11 attacks. The lower court had ruled that the charges were plausible enough to go forward with taking evidence.
"It's long been the case in the American courts that you would use the filing of your lawsuit to get the evidence you need to prove your case," said Goldstein. "But the Supreme Court is now saying no way."
Critics say the decision poses litigants with a Catch-22: How do they prove their case at an early stage, before they are allowed to subpoena documents and take depositions?
At the same time, the court, in another 5-4 decision, made it easier for institutions like welfare agencies, prisons and schools to get out from under court orders requiring them to comply with federal mandates or constitutional provisions.
While the frequent targets of such suits applauded these decisions, Stanford University law professor Pam Karlan says these cases illustrate a desire to close the courthouse door to many kinds of litigation.
Finally, in the area of the criminal law, the court ruled in favor of police and prosecutors in a number of important cases, including a 5-4 decision declaring that prisoners have no constitutional right to access DNA evidence that might prove their innocence.
At the end of the term, though, law enforcement suffered a big blow. The court ruled unconstitutional the common practice of submitting crime lab reports as evidence. The justices said the Constitution guarantees criminal defendants the right to cross-examine in court crime lab technicians who conduct or analyze the tests. The vote was 5-4, only this time Scalia wrote the opinion for himself, fellow conservative Clarence Thomas and three of the court's liberals. It was yet another thumb in the eye to Roberts' stated desire to bring more consensus to the court.
"It's hard to get consensus when you have nine cats on the court who are temperamentally and professionally uninclined to be herded anywhere," said UCLA law professor Eugene Volokh.
And depending which side you're on, you may not want consensus.