Supreme Court More Conservative, Fragmented With the arrivals of Chief Justice John Roberts and Justice Samuel Alito, the Supreme Court shifted to the right, as expected, in its just-completed term. But the shift was less dramatic because Justice Anthony Kennedy assumed a swing role.
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Supreme Court More Conservative, Fragmented

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Supreme Court More Conservative, Fragmented


Supreme Court More Conservative, Fragmented

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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It's MORNING EDITION. I'm Lynn Neary, in for Renee Montagne.


And I'm Steve Inskeep. Good morning. We're going to spend a few minutes this morning looking at the Supreme Court's current term, which has just wrapped up with a bang, including a historic decision on presidential power. For the first time in 11 years, the Court had a new membership, a new ideological makeup, and a new Chief Justice.

Here's NPR legal affairs correspondent Nina Totenberg.


In his first year as Chief Justice, the still youthful John Roberts impressed all comers with his grace, wit, preparation, and the smooth way he presided over a Court of strong minds and personalities.

Yale law Professor Ahkil Amar.

Professor AHKIL AMAR (Yale): He's really established himself as lawyer's lawyer and a judge's judge, with a nice combination of common sense and judicial modesty, and the occasional zinger.

TOTENBERG: For Roberts, the high watermark probably was the unanimous opinion he authored, requiring equal access for military recruiters on campus. The decision marked the end of the first half of the term, when Justice Sandra Day O'Connor was still on the bench, but waiting for her replacement, Samuel Alito, to be confirmed. In that period, the Court, in most cases, decided as little as possible, often resolving matters on the narrowest of grounds and with unanimous votes.

But as the term drew to a close, with Alito now on board, the most contentious issues often devolved into fragmented rulings, with as many as six Justices writing separate opinions and in some cases, no theory of law commanding a clear five vote majority. Overall, the Court was more conservative, as Supreme Court advocate Tom Goldstein observes.

Mr. THOMAS GOLDSTEIN (Supreme Court Advocate): The numbers tell you that the Court did take a real step to the right this term. You can compare how Justice O'Connor voted last term with how Justice Alito, her replacement, voted this term; and he's substantially more conservative than she was, and that makes a difference.

TOTENBERG: Indeed, in two cases that were reargued after O'Connor left, it is clear that Justice Alito voted differently than she had, and in so doing, tipped the Court to a five to four conservative result. The Court would have moved far more dramatically to the right, however, had it not been for the Court's new swing Justice, Anthony Kennedy. It's a role Kennedy has played in the past, but he's been more reliably conservative than O'Connor and less likely to defect to the more liberal bloc of Justices. Even so, he defected from the conservative ranks in some of this term's most important cases, proving that this may now be not the Roberts Court, but the Kennedy Court.

Again, Tom Goldstein.

Mr. GOLDSTEIN: It's Anthony Kennedy's world and we just live in it. Justice O'Connor, our swing vote, retired this term, and on her way out handed him the keys to the Court.

TOTENBERG: It was Kennedy's vote, for instance, that prevented the Court four conservatives, including Roberts and Alito, from essentially gutting the Clean Water Act, as it's been enforced for more than 30 years. It was Kennedy's vote that was pivotal in upholding most, but not all, the contested Texas redistricting. Kennedy also joined O'Connor and the Court's liberals in the first indication of skepticism about the Bush administration's assertion of Executive power, the administration's claim that it could in essence override Oregon's assisted suicide law, and in the Court's blockbuster Guantanamo case, Kennedy rejected almost every assertion of unilateral Executive power claimed by President Bush in setting up war crime trials outside the Code of Military Justice.

In this case, Kennedy joined every key portion of the opinion written by the Court's crafty elder statesman, Justice John Paul Stevens. Scholars across the political spectrum agreed on the importance of the decision.

Duke law Professor Walter Dellinger served in the Clinton administration.

Professor WALTER DELLINGER (Duke Law School): I think it's the single most important decision on limits on presidential power, ever, in the history of the Supreme Court.

TOTENBERG: Stanford law Professor Pam Carlin.

Professor PAM CARLIN (Professor of Law, Stanford Law School): Executive power took it in the chops this term.

TOTENBERG: Harvard law professor Charles Fried served in the Reagan administration.

Professor CHARLES FRIED (Professor of Law, Harvard Law School): They wanted to deliver a message to the President: you can't do this on your own.

TOTENBERG: Bruce Fein also served in the Reagan administration.

Mr. BRUCE FEIN (Former Deputy Attorney General, Reagan Administration): They're almost lecturing the President, saying you need to consult Congress on these matters, if you want to deviate from what the current law and treaty provisions provide.

TOTENBERG: Yale's Professor Amar sees the decision as part of the ebb and flow of history.

Professor AMAR: The presidency had been at high tide, as of September 12, 2001. It had lost a lot of power after Watergate, after Vietnam, and George Bush was determined to get it back, to push vis-à-vis Congress, to push vis-à-vis the courts. And the courts hadn't pushed back until today.

TOTENBERG: Conservatives and liberals agree, too, that the Court's Guantanamo decision undercuts many other assertions of Executive power made by this President, from his claim that he's not bound by anti-torture laws to his NSA warrantless surveillance program. University of Chicago law Professor Cass Sunstein.

Professor CASS SUNSTEIN (Professor of Law, University of Chicago Law School): I do think that those of us who thought the President had a good chance, with the warrantless wiretapping - have to rethink the issue now, that the Court has really set its face against strong claims of Executive authority, and has demanded clear congressional authorization.

TOTENBERG: Next term, it's expected that Justice Kennedy will, once again, play a pivotal role in cases involving voluntary racial integration of schools, abortion, and federal regulation of the air. And this time, he may be on the other side.

Nina Totenberg, NPR News, Washington.

INSKEEP: You can find an interactive review of the Supreme Court session at

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