Rulings Reveal Divided High Court

The Supreme Court wrapped up its term this week, and many of its rulings revealed a bitterly divided court. It was the first full session for the current lineup of nine justices. Weekend Edition legal affairs commentator Mimi Wesson talks to Liane Hansen about the rulings.

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LIANE HANSEN, host:

This is WEEKEND EDITION from NPR News. I'm Liane Hansen.

The Supreme Court wrapped up its term this past week and many of its rulings revealed a bitterly divided court. It was the first full session for this group of nine justices. And here to give her analysis of the state of the court is Mimi Wesson, professor of law at the University of Colorado. She's in Taos, New Mexico. Good morning, Mimi.

Professor MIMI WESSON (Law, University of Colorado): Good morning, Liane.

HANSEN: When Chief Justice John Roberts began his appointment, he said he wanted to promote consensus. Now, there were some unanimous rulings - about a quarter of the cases were unanimous - but about a third of their decisions were decided five to four. What does this say to you?

Prof. WESSON: These are pretty good measures of how dramatically divided this court is. The percentage of unanimous decisions is way down from the previous term, and a number of five-four decisions is more than double the number of those divisions in the last term.

But probably more important is that many of the decisions that fractured the justices concerned the most high profile, the most consequential issues that the court considers. Issues like a woman's right to choose an abortion, school integration and affirmative action, environmental regulation, campaign finance reform.

The results were somewhat mixed but on the whole the more conservative justices prevailed. One illustration of how the court's balanced on a message is its decision Friday morning to reconsider an appeal from two Guantanamo detainees, an appeal that it had turned down only a few months before.

HANSEN: So if Chief Justice Roberts wants to build consensus, how does he do that and is it really important?

Prof. WESSON: Well, first, how it's done takes some diplomacy. One opportunity for the chief justice to advance consensus comes after the court's voted in conference. When he can assign an opinion to a justice in the majority, whose view of the case is more narrow and less far reaching.

A justice will produce an opinion that's written in a modest way because that way it may attract fewer dissents than an opinion with more sweeping language in it. And another possibility is job owning or persuasion with the other justices if they're receptive to it.

As to the importance of consensus, it's generally believed that fewer dissents and more consensus contribute to a greater degree of legitimacy of the court and its work, meaning a greater public appreciation of the court's role and a willingness to go along with the court's decisions. For example, Chief Justice Earl Warren, 50 years ago, managed to unite the court to write a unanimous opinion in Brown versus Board of Education. And that was an achievement that went a long way toward eventually bringing the nation, which was very divided about desegregation, to accept the court's decision.

But it's possible the Robert's court is too bitterly divided for that sort diplomacy to work for it.

HANSEN: Mimi, we have been at this a while now, through several court terms and when we spoke in October at the beginning of this term, you told us to keep an eye on the voting blocs and the role of Justice Anthony Kennedy - what role he'd play. Where did his opinions fall this session?

Prof. WESSON: Justice Kennedy, he's unquestionably stepped into the role that was previously occupied by Justice Sandra Day O'Connor - the swing justice, whose vote can decide the case. Only he plays this role even more consistently than she did. And so he wields even more power on the court. He voted in the majority in every one of those five-to-four decisions this term - every one -

in abortion, campaign finance, affirmative action, a score of other issues. If he had voted differently in any of those cases, it would have come out the other way. In many, many cases now as Justice Kennedy votes, so goes the law.

HANSEN: During the confirmation hearings, John Roberts was questioned about his views on starry decisive(ph) translates court precedent and he said he would honor past presidents. Did he?

Prof. WESSON: Chief Justice Roberts has a curious relationship with the court's president. I think it's one that he sees as part of the virtue that he described in his confirmation hearings as judicial modesty. He's not likely to vote to overrule a president, at least not a very recent one, but he's quite likely to decide a new case differently by doing what lawyers call distinguishing the president. That is holding that the new case is, in some perhaps small but important way, not the same as the old case.

So he can vote to decide the new case in the opposite way but simultaneously maintain that he's not voting to overrule the president. And this style, this modest style has spread to some other justices on the court as well. And you could it see at work in some of the cases they decided this term like the abortion and affirmative action, school assignment cases, in which the main opinions were written as though they honored the court's earlier decisions even as they decided that those earlier cases could be distinguished and you could see this at work too in the campaign finance cases and what's been called the Bong Hits 4 Jesus case.

In some of these cases, other justices, for example, Justices Scalia and Thomas wrote separately to emphasize their belief that the earlier decision was just wrong and ought to be overruled outright. But most of the time, that's not Chief Justice Roberts' way, although he did vote to overturn a president in an anti-trust law case but it was 96 years old.

HANSEN: The liberal wing of the court did end up on the majority side of a few cases, including the clean air case, involving the EPA. What does this say about the court?

Prof. WESSON: Chiefly, I'd say it emphasizes the importance of Justice Kennedy and his vote. He joined the court's more liberal wing in the EPA case. And also the fragility of many of these decisions in the event there should be another retirement from the court or another new justice added to the mix.

HANSEN: So finally, overall, how do you assess this court's term?

Prof. WESSON: I think it's now clear that President Bush's two appointments to the court - who are likely to serve there for many years - will move the court in a consistently conservative direction, until and unless there are drastic countervailing personnel changes on the court.

Right now, the constitutionally of any form of race-based affirmative action is hanging by a thread. The constitutional foundation of the right to choose abortion is looking awfully thin.

And even if Congress would have passed some effective form of campaign finance regulation, it doesn't appear likely that the court would let it stand.

HANSEN: Mimi Wesson is a professor at the University of Colorado School of Law in Boulder, when she's not zipping around the country on her motorcycle. She joined us from the Dead Horse Studio in Taos, New Mexico. Mimi, thanks very much.

Prof. WESSON: My pleasure, Liane.

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