Split Roberts court cements shift to right
The Supreme Court's decision overturning school-desegregation policies culminates a fractious term in which the new Roberts court moved...
The Washington Post
WASHINGTON — The Supreme Court's decision overturning school-desegregation policies culminates a fractious term in which the new Roberts court moved the law significantly to the right, legal analysts said.
In a series of 5-4 decisions, the court also upheld a federal ban on a late-term abortion procedure and gutted a key provision of the McCain-Feingold campaign-finance law. Along with the schools case, each of these decisions left open the possibility of more change in areas of the law on which the court seemingly had ruled definitively in the past decade.
"Conservatives got everything they could reasonably have hoped for out of the term," said Thomas Goldstein, a Washington lawyer who specializes in Supreme Court litigation. "The table is set, particularly if there are more changes in the court, for wholesale changes in constitutional law. There were some incremental steps, but they were in a distinct direction and a uniform direction."
The conservatives' advance was limited by the occasional defection of Justice Anthony Kennedy. Because of his continued role as a swing voter, some analysts suggested this term's decisions may be the high-water mark for the right rather than a tidal shift.
"It is a conservative court, but at the same time, just barely so," said Eugene Volokh, a professor of constitutional law at the University of California, Los Angeles. "The liberals are a forceful bloc and are willing to fight some old battles and win some when they swing Justice Kennedy around."
Still, Kennedy is a different kind of swing voter from Justice Sandra Day O'Connor, a centrist replaced by Samuel Alito in 2006. Kennedy seems more likely than she was to side with the right in close cases. He wrote the court's opinion upholding the federal ban on a type of abortion that opponents call "partial-birth" abortion.
The justices split 5-4 in 24 cases, one-third of this term's total. Kennedy sided with the four most conservative justices — Roberts, Alito, Antonin Scalia and Clarence Thomas — in 13 of the 5-4 cases, while backing liberals John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer six times. In five other such cases, the court did not split along liberal-conservative lines.
The most significant victory for liberals came when they secured Kennedy's vote for a ruling that required the Environmental Protection Agency to justify its refusal to regulate greenhouse gases in vehicle exhaust.
And whereas Kennedy occasionally applied the brakes to the court's conservatives, Scalia and Thomas sometimes demanded that they move further and faster to the right, suggesting that Roberts and Alito were straining to depict their rulings as consistent with past cases, rather than just overruling some of them outright, as they should.
That echoed accusations from the court's liberals, who have seemed increasingly united in their view that the Roberts court is deviating from settled law without openly saying so.
The liberal justices — Stevens, Souter, Ginsburg and Breyer — have taken turns reading dissenting opinions from the bench in a show of dismay with the court's direction.
"Someone like Ginsburg, who used to be a cautious liberal, is now an angry liberal," said Neil Siegel, a professor of law at Duke University and a former law clerk of Ginsburg's.
As Roberts read his opinion in the schools cases Thursday, Breyer shifted in his chair, rubbed his temples and occasionally shook his head. When it was time to read his dissent, Breyer spoke heatedly for almost 30 minutes.
He accused Roberts and the conservatives of violating stare decisis, the legal principle that prior decisions generally should be left undisturbed.
"The majority is wrong," Breyer said. "It's not often in law that so few have changed so much so quickly."
The charge of ignoring or twisting precedent stings, because it essentially is an accusation that the conservatives have abandoned the judicial restraint that they preach so often, in pursuit of policy results they favor.
Roberts, who pledged "judicial modesty" and respect for precedent in his 2005 confirmation hearings, has responded, defending his rulings as applications of the court's existing doctrine.
In the campaign-finance case, he argued that past rulings permitted the court to entertain challenges to specific applications of McCain-Feingold and that his decision to permit a Wisconsin anti-abortion group's television ad was consistent with case law that barred regulation of all ads except those that expressly advocate the election or defeat of a particular candidate.
On Thursday, Roberts peppered his opinion with phrases such as "under our existing precedent" and "the established law." He also frequently buttressed his arguments with quotations from the writings of O'Connor, as if to emphasize that his views were well within the court's historical mainstream.
"I thought Roberts was trying to wrap himself in Sandra Day O'Connor," said David Garrow, a senior fellow at the University of Cambridge in England.
Roberts also responded in kind to Breyer, arguing that his dissent "alters or misapplies our well-established legal framework" and that his "appeal to stare decisis rings particularly hollow."
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