Supreme Court tilt to right had its limits

The US Supreme Court is a more conservative place under Chief Justice John Roberts and associate Justice Samuel Alito.

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.

The action is an example of a doctrine of judicial restraint often repeated by the chief justice: "If it is not necessary to decide more to dispose of a case, it is necessary not to decide more."

Roberts's moderate posture prompted Scalia to include a few choice barbs aimed at the chief justice in a concurring opinion. Scalia said Roberts's opinion effectively overruled the law without saying so. "This faux judicial restraint is judicial obfuscation," Scalia wrote, deploying a tone usually reserved for dissenting opinions.

In a case involving taxpayer standing to sue the White House for alleged violations of separation of church and state, Scalia again used a concurring opinion to fire off a barrage of arrows aimed at Alito, Roberts, and Kennedy. Scalia and Thomas favored overruling a 1968 precedent, Flast v. Cohen, that first permitted such taxpayer suits. Instead, the three other justices favored an approach that would carve out an exception allowing taxpayers to sue only in response to congressional action, but not in cases solely involving the White House.

For Scalia, the outcome was untenable. The only principled way to resolve the issue, he wrote, was either to allow taxpayers to sue in every instance or to overturn the underlying precedent that awarded them the right to sue in the first place. He accused the three justices of hiding behind a "pretense of minimalism."

"If this court is to decide cases by the rule of law rather than a show of hands, we must surrender to logic and choose sides," Scalia writes. "Either Flast v. Cohen should be applied to all challenges…, or Flast should be repudiated."

Scalia said he understood the impulse to take a minimalist approach. "But laying just claim to be honoring stare decisis [i.e., respect for precedent] requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive."

He adds, "We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it."

A 'Kennedy doctrine' for schools

It is in the school race cases handed down Thursday that Kennedy's power as a moderating force is on full display.

Roberts wrote the majority decision invalidating race-based public school enrollment programs in Seattle and Louisville, Ky. Both plans violate the Constitution's equal-protection clause by using race to decide which students would attend the most popular schools, the court ruled. The chief justice's opinion lays a legal foundation to require officials to adopt a color-blind approach in instances other than attempts to remedy intentional discrimination.

Had Kennedy provided an unreserved fifth vote, the resulting decision would have become a constitutional landmark, in effect opening a new and controversial chapter in race relations in the US.

But he stopped short of authorizing that sweeping outcome. Instead, Kennedy provided the crucial fifth vote to strike down the two school programs but then wrote a controlling concurrence that limits the sweep of the Roberts plurality opinion.

The resulting Kennedy doctrine is that school districts may use race to try to avoid the racial isolation of minority students in inner-city schools or to achieve a diverse student body. But they can do so as a last resort only after exhausting nonrace-based means of achieving such goals.

Kennedy didn't always swing to the right in major cases this term.

His most significant move to the left came in a case involving an attempt to force the US Environmental Protection Agency to regulate greenhouse gases to fight global warming. It represents a victory for states and environmentalists worried about the impact of climate change, and makes it easier to file future suits. But the holding itself does not force the EPA to do anything other than take a more rigorous look at the problem and carefully justify any agency inaction.