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| USSC in turmoil ...................................................... ............................. |
Erewhon |
07/02/06 |
In Chief Justice John G. Roberts Jr.'s first term, the Supreme Court was scene to both momentous decisions and battles postponed.
By LINDA GREENHOUSE
Published: July 2, 2006
WASHINGTON, July 1 — As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.
The answer: not yet.
Chief Justice John G. Roberts Jr. was clearly in charge, presiding over the court with grace, wit and meticulous preparation. But he was not in control.
In the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority. His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way.
The term's closing weeks were particularly ragged. The court issued no decision in a major patent case that had drawn intense interest from the business community, announcing two months after the argument, over the dissents of three justices, that the case had been "improvidently granted" — they should not have agreed to decide it — in the first place.
So if it wasn't yet the Roberts court, what exactly was it?
Perhaps it was the Kennedy court, based on the frequency with which Justice Anthony M. Kennedy cast the deciding vote in important cases.
Or perhaps it was more accurately seen as the Stevens court, reflecting the ability of John Paul Stevens, the senior associate justice in tenure as well as in age, to deliver a majority in the case for which the term will go down in history, the decision on military commissions that rejected the Bush administration's view of open-ended presidential authority.
Chief Justice Roberts did not participate in that case because he had ruled on it a year earlier as an appeals court judge. Based on his vote to uphold the administration's position then, he almost certainly would have joined Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., the newest member of the court, in dissent.
If none of these labels — Roberts court, Kennedy court, Stevens court — seem to fit precisely, it is probably because what the Supreme Court really was in its 2005-6 term was a court in transition.
For the justices, it was a time of testing, of battles joined and battles, for the moment, postponed.
The term's early period of unanimity, during which cases on such contentious subjects as abortion and federalism were dispatched quickly, with narrowly phrased opinions, reflected agreement not on the underlying legal principles but rather on the desirability of moving on without getting bogged down in a fruitless search for common ground. This was especially so in the term's early months, when Justice Sandra Day O'Connor was still sitting but was counting the days until a new justice could take her place.
Once Justice O'Connor retired in late January, after Justice Alito's confirmation, and as the court moved into the heart of the term, some of the court's early inhibitions seemed to fall away. Yet when its most conservative members reached out aggressively to test the boundaries of consensus in the term's major environmental case, Justice Kennedy unexpectedly pushed back and left them well short of their goal.
In that case, Chief Justice Roberts along with Justices Alito, Scalia and Thomas tried to cut back on federal regulators' expansive view of their authority under the Clean Water Act to define wetlands.
Justice Kennedy also deserted the conservatives in a redistricting case from Texas when he found a violation of the Voting Rights Act in the dismantling of a Congressional district that had previously had a Mexican-American majority. The action of the Republican-led Texas Legislature had deprived the Latinos of the ability to elect the candidate of their choice, Justice Kennedy said, leaving Chief Justice Roberts to complain in dissent, "It is a sordid business, this divvying us up by race."
Nonetheless, there was little doubt that in its transition, the court was becoming more conservative. A statistical analysis by Jason Harrow on the Scotusblog Web site showed that Justice Alito voted with the conservative justices 15 percent more often than Justice O'Connor had.
A separate analysis, by the Supreme Court Institute at Georgetown University Law Center, showed that Justice Alito and Chief Justice Roberts had the highest agreement rate of any two justices in the court's nonunanimous cases, 88 percent, slightly higher than the agreement rate between Justice O'Connor and Justice David H. Souter in the first half of the term, 87.5 percent.
Chief Justice Roberts agreed with Justice Scalia in 77.5 percent of the nonunanimous cases and with Justice Stevens, arguably the court's most liberal member, only 35 percent of the time. The least agreement between any pair of justices was between Justices Alito and Stevens, 23.1 percent.
The court decided 69 cases with signed opinions in the term that began on Oct. 3 and ended on June 29. Nearly half were decided without dissent, a greater number than usual, although not dramatically so. Sixteen cases were decided by five-justice majorities, either 5 to 4 or 5 to 3, a proportion very close to the 10-year average.
One measure of the court's shift to the right is in dissenting votes. In the previous term, the justice who dissented least often was Stephen G. Breyer, who dissented in 10 of the term's 74 decisions. But this term, he had the second-highest number of dissents, 16; Justice Stevens had the most, 19. Justice Thomas and Justices Ruth Bader Ginsburg and Souter were also frequent dissenters. Of those who served the full term, Chief Justice Roberts had the fewest dissents, seven. Justice Kennedy had the second fewest, with nine.
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