Supreme Court Closes Deeply Divided Term 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. Yet the Supreme Court did not go as far this term as some liberals had feared.
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Supreme Court Closes Deeply Divided Term

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Supreme Court Closes Deeply Divided Term


Supreme Court Closes Deeply Divided Term

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The justices of the U.S. Supreme Court are heading out of Washington for their summer break. And as the words of the court's opinion settle into law books, a picture is emerging of a conservative court on a slow, but steady march to the right. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: With each term since President Bush appointed Chief Justice John Roberts and Justice Samuel Alito, their conservative clout has become clearer and 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. Ah, that fifth vote.

The current Supreme Court is deeply split, dividing five to four or six to three in almost half its cases. Supreme Court advocate Tom Goldstein is founder of the leading Supreme Court blog.

Mr. TOM GOLDSTEIN (Founder of Supreme Court Blog): This was the most divided Supreme Court term in its modern history. While it wasn't a clean sweep for the conservatives, they won, really, the cases that mattered the very most.

TOTENBERG: And yet the court did not go as far as some liberals feared. In the two most high-profile cases of the term, it didn't strike down the Voting Rights Act as unconstitutional, and it didn't strike down a key provision of the Civil Rights in Employment Act.

Justice Anthony Kennedy, the swing vote in almost all the closely divided cases, swung in the conservative direction most of the time, but not as far as the court's four hardcore conservatives might have wanted.

Yale constitutional law professor Heather Gerken.

Professor HEATHER GERKEN (Constitutional Law, Yale University): 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. 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.

Mr. GOLDSTEIN: I read the tea leaves differently.

TOTENBERG: Supreme Court advocate Tom Goldstein does not think either Justice Kennedy or Chief Justice Roberts blinked.

Mr. GOLDSTEIN: I think this was step by step, the court is moving the law to the right. There's no rush. John Roberts knows he's going to have this conservative majority for at least almost 10 years.

TOTENBERG: The court's eight to one voting rights decision is a case in point. A small Texas district challenged the constitutionality of the 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 the bailout provision. But then the court walked away from a decision on the constitutionality of the law. At the same time, it issued a stern warning to Congress to modernize the statute or face a more dire decision next time.

The decision, written by Chief Justice Roberts, has been cast as both a case of statesmanship and 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 constitutional law Professor Doug Kmiec, have little doubt that if Roberts had had Kennedy's vote, he would have gone further.

Professor DOUG KMIEC (Constitutional Law, Pepperdine University): 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.

TOTENBERG: 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 to 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 five-to-four 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.

Moving on to the subject of judicial ethics, the court ruled for the first time that elected judges must disqualify themselves from cases in which interested parties spend excessive amounts of money in judicial campaigns, creating the appearance of probable bias. This time, Justice Kennedy voted with the four liberals.

And in a case testing whether public school authorities can strip-search a student for drugs, by an eight-to-one vote, the court said usually, no.

For the most part, this term, though, the big wins went to the court's conservatives. Environmentalists lost four cases. 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, while the court did not invalidate any part of the Employment Discrimination Act, it reinterpreted the law in favor of white firefighters in New Haven, who claimed they were the victims of reverse discrimination. Civil rights advocates suffered less visible losses in age discrimination and pregnancy discrimination cases, too.

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 U.S. were deliberately targeted for detention without charge after the 9/11. The lower court had ruled that the charges were plausible enough to go forward with taking evidence. Tom Goldstein.

Mr. GOLDSTEIN: 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. But the Supreme Court is now saying no way.

TOTENBERG: Critics say the decision poses litigants with a Catch-22: How do they prove their case at an early stage, before they're allowed to subpoena documents and take depositions?

At the same time, the court, in another five-to-four 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 what she calls…

Professor PAM KARLAN (Law, Stanford University): A desire to close the courthouse door to a lot of 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 five-to-four 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 to 4, only this time, Justice 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 Chief Justice Roberts' stated desire to bring more consensus to the court. UCLA law professor Eugene Volokh.

Professor EUGENE VOLOKH (Law, UCLA): It's hard to get consensus when you've got nine cats on the court who are temperamentally and professionally uninclined to be herded anywhere.

TOTENBERG: And depending on which side you're on, you may not want consensus.

Nina Totenberg, NPR News, Washington.

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