The National Pulse

Deja Vu Once Again

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The U.S. Supreme Court has a habit of defying expectations. Many foresaw a more conservative court with the arrival in the past year of President Bush’s two appointees, Chief Jus­tice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

But the scene in the courtroom on the term’s final day was surprisingly familiar–and not at all what conservatives had hoped for.

The 86-year-old Justice John Paul Stevens, the high court’s last veteran of World War II, solemn­ly declared that the president had overstepped his power by ignoring Con­gress and long-stand­ing mili­tary law when he created special mil­itary tribunals for alleged al-Qaida conspira­tors held at Guantanamo Bay.

Stevens paused to note that Justice Anthony M. Kennedy, seated next to him, had joined near­ly all of his opinions, thereby making for a five member majority.

They agreed the Uniform Code of Military Justice adopted by Congress in 1950 and the Geneva Conven­tions, ratified by the Senate, require the Bush admini­stration to try alleged war criminals in a “regularly constituted court afford­ing all the judicial guarantees” of fairness, not in a newly created tribunal with a changing set of rules ordered by the White House.

Dynamic Duo

It was not the first time a Stevens-Kennedy pairing has proved crucial. In recent terms, major rulings turned on Kennedy joining the liberal bloc led by Stevens. Among them: Roper v. Simmons, 543 U.S. 551 (2005), which banned executions of underage murderers, and Lawrence v. Texas, 539 U.S. 558 (2003), which overturned Bowers v. Hardwick, 478 U.S. 186 (1986), and struck down laws that criminalized private sex between gays.

This term’s ruling in Hamdan v. Rumsfeld, 126 S. Ct. 2749, was hailed by those who rejected President Bush’s approach to fighting the war on terrorism. It also angered many conservatives, who said the court had no right to second guess the commander in chief during war.

They include Justices Antonin Scalia and Clarence Thomas, both of whom delivered strong dissents from the bench. This, too, made for a near repeat of recent term endings, during which Scalia and Thomas denounced the Stevens led majority for striking down public displays of the Ten Commandments and for upholding affirmative action in colleges and universities.

This year, the two new justices listened in silent agreement with the dissenters. Since Roberts had vot­ed last year to uphold the military tribunals while on the appeals court, he sat out the Hamdan case.

Though the legal issue was about the balance of power in the U.S. government, the courtroom drama on the final day showed the balance of power within the high court itself had changed remarkably little.

For the past decade, Justices Kennedy and Sandra Day O’Connor had decided the court’s major cases. Both Reagan appointees, they usually joined with conservatives on issues of crime, civil rights and states’ rights. However, they often gave Stevens and the liberal bloc a majority in the biggest end-of-term cases involving the death penalty, religion, affirmative action and abortion.

This year, with O’Connor’s retirement, Kennedy stood alone in deciding the outcomes in the most divisive cases.

His concurring opinion in Hamdan was neither half hearted nor tentative. He described the Constitution as having created “a system where the single power of the executive is checked” and a “concentration of power” in one individual frowned upon. Stevens and Kennedy agreed Common Article 3 of the Geneva Conventions required humane treatment of all those who were caught up in military conflict, even if they were neither soldiers nor innocent civilians. Ken­nedy added that the Geneva Conventions are a treaty and “thus accepted as binding law,” so “violations of Com­mon Article 3 are considered ‘war crimes.’ ” Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer signed on to both the Stevens and Kennedy opinions.

Case Clincher

At the term’s end, Kennedy decided nearly all the close cases. He spoke for the conservative majority in rejecting the partisan gerrymandering charge against former House Majority Leader Tom DeLay and the Texas Re­pub­licans. However, Kennedy joined with the liberals to strike down one south Texas district because Latinos had been shifted out away from it to preserve the seat of a threatened Republican. League of United Latin American Citizens v. Perry, 126 S. Ct. 2594.

In criminal law, Kennedy was not predictable. He joined a 5-4 decision holding that a violation of the “knock and announce” rule did not require courts to suppress evidence. Police had entered the house with a valid search warrant, he noted, in Hudson v. Michigan, 126 S. Ct. 2159. But he spoke for a 5-3 majority that revived the appeals of a Tennessee death row inmate. New DNA evidence had undercut the prosecution’s case, although it did not prove the defendant’s innocence, Kennedy said, in House v. Bell, 126 S. Ct. 2064. Alito took no part in the decision.

In the major environmental case of the term, Kennedy was alone in the middle. The four on his left would have given the Army Corps of Engineers essentially unlimited power to protect wetlands from development, even isolated wet patches far from a river or stream. The four on his right, including Roberts and Alito, would have redefined wetlands to require they be part of a continuous flowing stream. This would have eliminated much of the nation’s wetlands, including nearly all those in the West, because their streambeds are dry for much of the year. A California native, Kennedy said federal regulators can protect wetlands that are miles from rivers and lakes so long as they can show that filling the areas could have a harmful impact on the downstream waters. Rapanos v. United States, 126 S. Ct. 2208.

Despite the sharply divided decisions of late June, the new chief justice appears to have made a surpris­ing­ly smooth transition to leading the court. From the first week in October, he led the court’s oral arguments and showed a confident grasp of the cases. As a regular advocate in the high court, Roberts was renowned for his ability to give calm, clear and quick answers to the rapid fire questions coming from the bench. As chief justice, his questions have had a similar character. They are brief, pointed and polite. Unlike most of his older colleagues, he does not sound as if he had his mind made up before the argument got under way.

Unified Front

Roberts “has a conservative mind, but a diplomat’s nature,” says Pepperdine University law professor Douglas Kmiec. Perhaps reflecting Roberts’ diplomatic skills, the court managed to hand down unanimous rulings in several high-profile disputes.

In an abortion case from New Hampshire, all the justices agreed the state could require a parent to be notified two days before their daughter had an abortion so long as doctors could act quickly in the face of a medical emergency. Ayotte v. Planned Parenthood of Northern New England, 126 S. Ct. 961.

A unanimous court also upheld the Solomon Amend­ment, in which Congress required colleges and universities to permit the military to recruit on campus as a condition of receiving federal funds. None of the justices thought this violated the free-speech rights of the law schools and professors who challenged the policy on First Amend­ment grounds. Rumsfeld v. Forum for Academic and In­stitutional Rights, 126 S. Ct. 1297. And the first major employment discrimination case of the Roberts court resulted in a unanimous victory for the plaintiff. Illegal retaliation is not limited to a firing or demotion, the court said. It can include any action by an employer that would cause a reasonable worker to think twice about complaining of discrimination, including being shifted to a less appealing job at the same pay. Bur­ling­ton Northern and Santa Fe Railway Co. v. White, 126 S. Ct. 2405.

The statistics show slightly more unanimity this term. About 49 percent of the court’s decisions were unanimous, up from 38 percent last year and 44 percent the term before, according to the Georgetown University Law Center.

The term ahead should give more clues as to whether the Roberts court–with Kennedy’s support–will deliver more conservative decisions.

A change in abortion law may be in the works. Ken­nedy dissented six years ago when a 5-4 majority struck down a state’s ban on “partial birth abortions.” In the fall, the court will consider the federal ban.

Kennedy has opposed race based affirmative action and agreed with Scalia and Thomas that the government should not use race as a decision making factor. The court will hear constitutional challenges to a pair of voluntary school integration programs, and Kennedy and Roberts could combine to outlaw such efforts. “It’s a sordid business, this divvying us up by race,” the chief justice said in his dissent in the Texas voting rights case.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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