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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Instead, the high court upheld Kentucky's lethal injection protocol by a 7-to-2 vote and declined to strike down Indiana's photo ID requirement by a 6-to-3 vote. Analysts say the broader coalitions appear to be the handiwork of the chief justice.Skip to next paragraph
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Roberts pledged during his confirmation hearings to pursue a strategy of judicial minimalism, seeking to narrow cases to facilitate broader agreement among justices.
Judicial minimalism means that when a judge can decide a case on narrow grounds, he or she need not reach broader issues in the same case. Legal scholars say this approach may account for a reduction in the number of 5-to-4 cases handed down this term compared with last term. In 2006, 33 percent of the court's decisions were 5 to 4, compared with 17 percent this year.
"This term is an attempt to behave more like a court and less like a political institution," Washington lawyer and Supreme Court scholar Tom Goldstein told a recent briefing at the Washington Legal Foundation. "There seems to have been from the very beginning of the term a conscious effort to bring the court together."
But such efforts go only so far, analysts say. And there are costs. Court watchers say that while narrow rulings may foster more unity and an image of collegiality, they often fail to produce clear constitutional principles that can be easily applied by lower court judges in future cases.
In addition, analysts say, when the stakes are high enough the justices revert to the more traditional 5-to-4 alliances.
"The blockbuster cases, the really big ticket cases have brought into sharp focus how closely divided the court really is on the very large and highly philosophically charged issues before the court," Washington lawyer Charles Cooper told reporters recently. "On those kinds of cases, what Kennedy says goes."
In other action during the term, the high court:
•Struck down by a 5-to-4 vote the so-called Millionaire's Amendment of the McCain-Feingold campaign finance law.
•Rejected by a 7-to-2 vote a First Amendment challenge to a law banning the pandering of child pornography.
•Decided 7 to 2 that federal judges have discretion to consider and then reject punishments suggested under the federal sentencing guidelines.
•Ruled 6 to 3 that a World Court order mandating compliance with an international treaty does not preempt state laws and procedures in death penalty cases.
•Ruled in two cases, 6 to 3 and 7 to 2, that workers may sue their employers for retaliation related to alleged discrimination claims even if the underlying statute doesn't specifically authorize retaliation suits.