The Supreme Court Shifts Direction
SCOTT SIMON, host:
The U.S. Supreme Court wrapped up its term this week with a bang that pleased many conservatives. The court delivered decisions that limit voluntary school desegregation plans, curb student free speech rights and struck down a key provision of the McCain-Feingold campaign finance law.
And just as the justices were leaving Washington, D.C., they issued a surprise written order saying that next term they would hear a case whether Guantanamo detainees can challenge their indefinite detentions in civilian courts.
NPR legal affairs correspondent Nina Totenberg joins us. Nina, thanks for being with us.
NINA TOTENBERG: My pleasure.
SIMON: And let's start with Guantanamo. Now, this was a reversal from a decision the court made just two months ago.
TOTENBERG: That's right. Two months ago, only three justices - Souter, Ginsburg and Breyer - voted to hear these cases. And Justices Kennedy and Stevens said they wanted the wait and see how the detainee cases were handled at the D.C. Court of Appeals under the Detainee Treatment Act.
But there's been a lot of developments since then, developments that have seriously eroded the Bush administration's contention that there's a fair and thorough review process for determining whether these detainees are being properly held.
And, I think, you just have to presume that Justices Kennedy and Stevens ran out of patience when confronted with some of this new evidence and decided there was no reason to wait since the court was going to have to intervene in these cases, anyway. And these detainees have already been held for five years now.
SIMON: Was the decision to hear the Gitmo cases a surprise mostly just because of the quick reversal?
TOTENBERG: No, it's really just about unheard of for the Supreme Court to grant a motion to reconsider as it did here. And it takes the majority of the court to do it. Not the usual four that's required to grant review in the first instance. In my quick research, so far, the last time the court did something like this was 1947.
SIMON: Moving on to other cases of the week. Justice Anthony Kennedy was the deciding vote in every one of the 5-to-4 cases, including the schools case, the McCain-Feingold case and the students' speech case.
TOTENBERG: Yes, indeed and not only that, he also wrote the court's 5-to-4 decision in an important death penalty case and in a major anti-trust case in which the court overruled a precedent that's nearly a century old.
SIMON: A busy and rewarding year for Justice Kennedy.
TOTENBERG: It's been more than a good year for Justice Kennedy. He was in the majority in 24 out of 24 5-to-4 opinions. He only dissented once this year. And that kind of record is unprecedented in modern times. At the Supreme Court, the only half-joking saying is it's Justice Kennedy's America and the rest of us are just living in it.
SIMON: Let me ask you about all the talk, observations, there have been that this is a more divided court, a more conservative court, a more ideological court.
TOTENBERG: Well, it's clearly more conservative. The court upheld this term a so-called partial birth abortion law that was nearly identical to one that the court struck down seven years ago. The court this term gutted a key provision of the McCain-Feingold campaign finance law that had been upheld just three years ago.
And this term, the court limited voluntary school desegregation plans in public schools and that's just three years after the court upheld affirmative action in higher education. Now, in each and every one of the earlier cases, Justice Sandra Day O'Connor cast the decisive fifth vote back when. And now with two Bush appointees on the court, the outcome has changed.
SIMON: Chief Justice Roberts said when he took office that there was a need for more consensus, which apparently hasn't happened, but at the same time, are there more ideological splits?
TOTENBERG: Well, yes. First of all, a third of the cases this term were 5 to 4. That's a higher percentage than at any time in the last decade, at least. Second, more of those splits were along ideological lines with the same four liberals or four conservatives on one side or the other and Kennedy as the swing vote.
This year, there were only 21 percent of the 5-to-4 cases that crossed ideological lines. In the previous six terms the numbers ranged from 25 to 50 percent. And there is one other thing, Scott. The conservatives weren't really united.
Justices Scalia and Thomas in many of the most important cases, wanted to overrule past decisions outright, while Chief Justice Roberts, Justice Alito and sometimes Justice Kennedy favored a more narrow approach that, well, depending on your point of view, either gutted previous decisions without saying so or represented a more limited approach.
SIMON: NPR's Nina Totenberg, thanks very much.
TOTENBERG: Thank you, Scott.
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