Supreme Court tilt to right had its limits
The 2006-2007 term was dominated by notable conservative rulings.
The US Supreme Court is a more conservative place under Chief Justice John Roberts and associate Justice Samuel Alito.Skip to next paragraph
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But the shift to the right is not as deep and abrupt as it might have been had both of the new justices fulfilled President Bush's wish to populate the high court with jurists in the mold of Antonin Scalia and Clarence Thomas.
Instead, Chief Justice Roberts and Justice Alito often staked out more moderate positions than Justices Scalia and Thomas, declining invitations from their conservative brethren to vote to strike down liberal precedents and declare broad new conservative doctrines in some of the high-profile cases decided in the just-ended 2006-2007 term.
The session did produce a string of conservative victories, including upholding a national ban on so-called partial-birth abortions, endorsing a narrow reading of a key section of the McCain-Feingold campaign-finance law, making it harder for taxpayers to sue to enforce the separation of church and state, and limiting the use of race-based enrollment policies in public schools.
But this was not Armageddon for liberal precedents. At least not yet.
The court's move to the right can be partly calibrated by the degree to which Justice Alito is more conservative than the justice he replaced last term, Sandra Day O'Connor. The other factor is the swing voter role of Justice Anthony Kennedy, who is also to the right of Mrs. O'Connor's prior positions on most key issues heard this term.
"There is not that much of a change because the court had been divided 5-4 on many of these same questions," says William Van Alstyne of William and Mary Law School in Williamsburg, Va. He calls it "a sea change on the margin."
For conservatives, even marginal victories are cause for celebration. They are the fruit of an intense campaign to reshape the judiciary launched a quarter-century ago during the Reagan administration. For liberals, it is a time of high anxiety and despair over what an emboldened Roberts court might produce in years to come.
But it's not all conservative applause and liberal angst.
Kennedy as swing voter
The most significant development at the court this term was the emergence of Justice Kennedy, a conservative centrist swing voter, as the center of power in the Roberts court.
In the 2006-2007 term, the high court handed down 24 opinions decided by 5-to-4 votes. Kennedy was on the winning side in all 24 cases.
Scholars had to search back decades to find a justice who might come close in achieving such a feat. Former Justice O'Connor, often called the most powerful woman in America when she was on the court, never did it.
Professor Van Alstyne says in his 45 years of teaching constitutional law he has never seen a justice who was "as crucial in so many pivotal constitutional cases as has been true of Justice Kennedy this term."
Thomas Goldstein, a Supreme Court advocate and close court observer, offers a similar assessment. "By and large it is Justice Kennedy's court across an array of questions," he told a recent gathering at the Washington Legal Foundation. "He has such complete control it is just extraordinary."
The essence of Kennedy's power is his position at the center of the court. While many legal disputes are disposed of with unanimous or lopsided majorities, the most contentious social issues tend to split the nine justices 4-4 into liberal and conservative wings. When this happens, Kennedy often controls the outcome by either writing the majority opinion or authoring a concurring opinion that limits the majority opinion.
As a result, it is Kennedy who decides not only which way the law goes, but also how far to the left or right it goes.
In the six biggest cases of the term, Kennedy joined conservatives five times.
Judicial restraint evident
In the campaign-finance case, Federal Election Commission v. Wisconsin Right to Life, Kennedy did not adopt his usual centrist posture. Instead he joined Scalia and Thomas in a call to overturn an important section of the McCain-Feingold law. Roberts and Alito were the ones who took the more moderate road, saying the law was unconstitutional "as applied" to the Wisconsin group, rather than invalidating that section of the law.
Six high-profile cases of the term
1. Parents Involved in Community Schools v. Seattle School District No. 1, and Meredith v. Jefferson County Board of Education – Decided June 28 by a 5-to-4 vote. Struck down race-based enrollment plans at public schools in Seattle and Louisville, Ky.
2. Gonzales v. Carhart, and Gonzales v. Planned Parenthood – Decided April 18 by a 5-to-4 vote. Upheld a federal ban on so-called partial-birth abortions.
3. Federal Election Commission v. Wisconsin Right to Life, Inc., and McCain v. Wisconsin Right to Life, Inc. Decided June 25 by a 5-to-4 vote. Endorsed a narrow reading of the McCain-Feingold campaign-finance law as applied to corporations and unions seeking to run issue advertisements prior to an election.
4. Hein v. Freedom From Religion Foundation – Decided June 25 by a 5-to-4 vote. Declared taxpayers do not have legal standing to challenge alleged violations of the separation of church and state by the White House absent a direct appropriation for religious purposes by Congress.
5. Morse v. Frederick – Decided June 25 by a 5-to-4 vote. Ruled that school officials may censor student speech at school-sponsored events when that speech is seen as promoting illegal drug use.
6. Massachusetts v. Environmental Protection Agency – Decided April 2 by a 5-to-4 vote. Ruled that states have legal standing to sue the EPA to force the agency to undertake a more rigorous effort to examine whether greenhouse gases should be regulated to fight global warming.