WASHINGTON — For much of its term, the Supreme Court muted last year’s noisy dissents, warmed to Chief Justice John Roberts’ vision of narrow, incremental decisions and continued a slow but hardly steady move to the right.
But as justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.
A victory by the presumptive Democratic nominee, Barack Obama, would probably mean preserving the uneasy but roughly balanced status quo because the justices who are considered most likely to retire are liberal.
A win for Republican John McCain could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.
“If there’s one thing you can see about this court, it is that it still sits on a knife’s edge,” said Jeffrey Fisher, a Stanford University law professor who argued three cases before the justices this year.
That was readily apparent in the court’s closing days, as it whipsawed from left to right and back again on the constitutional rights of terrorism suspects, individual gun ownership and the ability of government to restrict it, and the increasingly narrow view of who is eligible for the death penalty.
Each case pitted the court’s four consistent conservatives against its four slightly less consistent liberals, with Justice Anthony Kennedy returning to his role of last term as the deciding vote.
“The blockbuster cases, the really big cases, have now brought into very sharp focus how closely divided the court is on the really large and philosophically charged issues before the court,” said Charles Cooper, a Washington lawyer who was an official in President Reagan’s office of legal counsel.
It has cast into “the sharpest possible focus how important the court is going to be, I should think and should hope, in the upcoming election debate,” Cooper added.
The next appointment to the court will almost surely fill the seat now held by one of the court’s liberals, whose average age at the beginning of October’s term will be 75. For Obama, any initial appointment would probably replace one liberal with another.
But a McCain victory could give the conservative bloc a clear-cut majority for years to come.
President Bush has provided the model with his nominations of Roberts, to continue the conservative legacy of former Chief Justice William Rehnquist, and Samuel Alito, to replace the former justice found most frequently in the middle, Sandra Day O’Connor.
“I think on any measure one would have to agree this is a more conservative court than was the court a couple of years ago because on any measure Justice Alito is a more conservative justice than was Justice O’Connor,” said R. Ted Cruz, who argued before the court several times this year as Texas’ solicitor general. “But that being said, this is very much an almost exquisitely balanced court, with Justice Kennedy remaining at the fulcrum of most — if not practically all — close decisions.”
It is telling that Kennedy, currently the court’s most influential justice, is never mentioned as a model by either McCain or Obama. Kennedy’s iconoclastic views — conservative on some constitutional questions, more liberal on others — would not appeal to either candidate’s base.
Kennedy’s record this year is not as auspicious as last year’s, in which he was in the majority of every one of the court’s 5-4 decisions. But his role at the end of the term cannot be overstated.
He wrote the court’s decisions declaring that terrorism detainees held at Guantanamo Bay, Cuba, have a constitutional right to take their cases to U.S. courts, and that it is unconstitutional for states to impose the death penalty on child rapists.
Kennedy provided the fifth vote for the court’s decision to strike the District of Columbia’s ban on handguns and to find in the Second Amendment the right of private gun ownership. He joined the conservative majority in striking as unconstitutional the “Millionaire’s Amendment” in the McCain-Feingold campaign finance reform act, which increased contribution limits for candidates with wealthy, self-financed opponents.
The rush of one-vote constitutional rulings at the end of the term overshadowed the court’s earlier ability to resolve equally controversial issues by larger margins.
Conservative commentators credit Roberts. “I think those (cases) reflect the success of Chief Justice Roberts’ stated intent to promote what he’s characterized as judicial minimalism,” Cruz said. “I think it’s a theme one sees heavily this term.”
