Nation’s High Court enters new era
By David G. Savage - Los Angeles Times
Monday, July 2, 2007 12:31 PM PDT
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| Members of the Supreme Court sit for a group portrait at the Supreme Court in Washington in this March 3, 2006, file photo. Seated in the front row (from left to right) are: Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice of the United States John G. Roberts, Associate Justice Antonin Scalia and Associate Justice David Souter. Standing (from left to right) in the top row, are: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. |
WASHINGTON — In what may signal a generational shift in power, new Chief Justice John G. Roberts Jr. led a confident conservative majority at the Supreme Court this year and moved the law to the right on abortion, religion, campaign funding and racial diversity.
Working with a 5-4 majority, Roberts prevailed in nearly all the major cases.
In just his second term, the 52-year-old chief justice wrested control from the 87-year-old John Paul Stevens, the remaining justice who served on the court during its liberal era. Roberts was able to prevail because of the key votes cast by Justice Samuel A. Alito Jr., 57, who last year succeeded centrist Justice Sandra Day O’Connor.
Roberts and Alito were appointed by President Bush. And though Bush may fall short of creating a permanent GOP political majority in Washington, his selection of the two justices appears to have cemented his legacy of a long-term conservative majority on the high court.
Conservatives saw the rulings as historic and overdue.
“These are the most important decisions on the use of race since Brown vs. Board of Education,” said Sharon Browne, a lawyer for the Pacific Legal Foundation in Sacramento. “The high court has decided correctly that children must not be stereotyped by the color of their skin, but treated as individuals.”
Senate Minority Leader Mitch McConnell, R-Ky., saw the campaign funding decision as “a victory for the First Amendment and political debate.”
Liberals, including some on the high court, sounded an alarm.
“It is not often in the law that so few have so quickly changed so much,” Justice Stephen G. Breyer, 68, said in the courtroom on the final day of the term.
Said Steven R. Shapiro, legal director for the American Civil Liberties Union: “The Roberts court has moved with lightning speed to roll back fundamental rights. Having begun with a promise to respect precedent and seek consensus, the Roberts court has so far done neither.” Several Democratic presidential candidates have said the court is emerging as a major issue in the next election. The two most senior justices — Stevens and Ruth Bader Ginsburg, 74 — are its steadiest liberals. They will probably be replaced by the next president.
Roberts and Alito probably have at least two decades ahead of them, along with like-minded conservative Justice Clarence Thomas, 59.
``If a conservative Republican president has the opportunity to replace a mainstream justice with one more right-wing vote, this country would be in a lot of trouble,'' former Sen. John Edwards of North Carolina, a Democratic candidate for president, said in a statement last week.
He continued: ``We can't take that chance.''
Conservative lawyers say the rulings this term were neither dramatic changes in the law nor sweeping in significance. In the school integration case, for example, the court struck down race-based limits on who can enroll at certain campuses, but education officials say these limits are rare today.
Pepperdine University law professor Douglas W. Kmiec said Roberts was showing maturity in running the court. He has ``a better sense of what it takes to form a majority coalition and to keep it,'' he said.
The final week of the term showed Roberts in full control.
On Thursday, he spoke firmly in the courtroom as he demanded an end to racial integration policies that call for ``assigning students on a racial basis.'' He invoked the famous 1954 Brown v. Board of Education ruling, saying it established the principle that children must not be turned away ``based on the color of their skin.''
Next to him, looking glum, sat Stevens. A generation older, white-haired and wearing a bow tie, Stevens had been at the high court for four years when in 1979 Roberts, just a year out of Harvard Law School, came to the capital as a law clerk.
Though Stevens was silent in the courtroom, he took on Roberts directly in a written dissent.
``There is a cruel irony in the chief justice's reliance on our decision in Brown,'' he said.
Roberts' invocation of Brown's principle ``reminds me of Anatole France's observation: `(T)he majestic equality of the la(w) forbid(s) rich and poor alike to sleep under bridges, to beg in the streets and to steal their bread.' The chief justice fails to note it was only black schoolchildren'' who were turned away from school because of their skin, Stevens wrote.
He continued: ``In this and other ways, the chief justice rewrites the history of one of this court's most important decisions.''
A similar sharp divide over history and how to read the law was on display in the campaign funding case.
On Monday, Roberts cited the principle of free speech in throwing out part of McCain-Feingold Act of 2002, which barred corporate- or union-funded pre-election broadcast ads that mentioned a candidate's name. Under the First Amendment, ``we give the benefit of the doubt to speech, not censorship,'' he said for the 5-4 majority.
The dissenters pointed out that in 1907, President Theodore Roosevelt persuaded Congress to pass the Tillman Act, which made it illegal for corporations to spend any money ``in connection with any election to any political office.'' A similar ban for unions was set in law after World War II.
Where Roberts and the conservatives saw themselves as protecting ``core political speech'' from heavy-handed government, the liberals saw activist judges who would give more clout to ``the campaign war chests of business corporations.''
A Stevens-led liberal bloc prevailed in only one major case, a 5-4 ruling that rejected Bush's policy of inaction on global warming.
The only sure guide to the outcome in all the close cases was to watch Justice Anthony M. Kennedy. In 24 cases this term, the court was split 5 to 4, and Kennedy was in the majority every time.
Kennedy, 70, said in an interview Friday that he was pleased to see Roberts become chief justice. He agreed with him on some of the major issues before the court this year. For example, he consistently voted against ``racial classifications'' that treat individuals differently because of their race, and he believes the limits on campaign ads violate the free-speech principle.
But the Sacramento native also sometimes refers to himself as a ``California Republican.'' Unlike the court's other conservatives, he has sided with environmentalists in key cases. Last year, he cast the key vote for a 5-4 majority that preserved federal protection for wetlands, and this spring he supplied the fifth vote for the liberal bloc in the global warming case.
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Kennedy also wrote a separate opinion in the school integration case that set out something of a middle position. On the one hand, he said school officials had a duty to prevent ``resegregation in schooling,'' and he said Roberts was ``too dismissive'' of efforts to bring about integration.
At the same time, he voted to strike down policies adopted in Seattle and Louisville, Ky., because they set racial guidelines that limited which students could enroll in a school. He suggested school boards ``adopt general policies'' to encourage integration, but ``without treating each student in different fashion solely on the basis'' of race.
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Kennedy also holds a controlling, middle position on abortion. He has said that abortions may not be banned by law but that some regulations and restrictions may be enacted. In April, he spoke for the 5-4 majority upholding the federal Partial Birth Abortion Ban Act of 2003.
The conservative bloc cannot count on Kennedy's vote on issues of presidential power and right to habeas corpus, which loom again as key issues in the new case ofGuantanamo detainees. Last year, Kennedy voted with a five-member liberal majority that struck down the Bush administration's rules for military trials at Guantanamo Bay, Cuba, but the White House persuaded Congress to pass a law stripping these prisoners of their rights to appeal in federal court.
On Friday, the Supreme Court agreed to hear an appeal by Guantanamo detainees, which will be taken up in the fall.
