A less deferential high court
Key decisions of this term show a willingness of some justices to reject political leaders' judgments.
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Justice Scalia called Kennedy's approach "faux deference." He added: "What the Court apparently means is that the political branches can debate, after which the Third Branch will decide."Skip to next paragraph
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The Washington gun rights case produced a version of the same debate among the justices. But this time it was Scalia defending the importance of upholding a fundamental liberty. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad," Scalia wrote in the majority opinion in District of Columbia v. Heller.
"The Constitution leaves the District of Columbia a variety of tools...," he added. "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table."
The court's liberal wing responded with Scalia-like calls for judicial deference. "I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem," Justice Stephen Breyer wrote in his dissent.
The high court's blockbuster decisions could prove important in the upcoming presidential election. In addition to highlighting differences between John McCain and Barack Obama, they are a reminder that the next president will likely shape the future direction of the court.
In addition to the high court's more aggressive posture, the 2007-08 term featured hints of an apparent change in the internal dynamics at the nine-member court.
Justice Kennedy maintained his role as the most powerful justice, wielding influence as a centrist swing voter. He cast the decisive fifth vote in each of the three blockbuster decisions and personally authored two of them. But at the same time, Chief Justice Roberts appears to be working behind the scenes to build broader coalitions of six or seven justices in certain cases, analysts say.
When the term started last fall, many court watchers expected bitter 5-to-4 showdowns over the constitutionality of Kentucky's use of lethal injections to carry out the death penalty, and over a Republican-backed law requiring Indiana voters to produce photo identification before being allowed to cast a ballot.