The Supreme Court ended its 2007-2008 term by handing down a flurry of big decisions the last few days, most notably granting a constitutional protection for individuals to own guns (District of Columbia v. Heller) and banning the death penalty as punishment for the rape of a child (Kennedy v. Louisiana). These two particular cases resulted in closely contested 5-4 decisions, with justices falling lockstep into the predictable conservative and liberal factions and Justice Anthony Kennedy playing his expected role as the swing vote. But ideological blocs such as these have been a much rarer occurrence this season, belying the headlines that greeted both decisions. The gun decision was an anomaly in the way the court was behaving, says Richard Lazarus, director of the Supreme Court Institute at Georgetown University's Law School: "In this term there have been few dissents read from the bench and when the justices disagreed it tended not to be along liberal and conservative splits."
The number of one-vote majority opinions was significantly lower this time around (approximately 17% of the cases compared to 33% last term). "What is striking is how many cases were not decided by 5-4 votes," says Richard Pildes, professor of constitutional law at New York University School of Law. "With its new blood the court is still developing new patterns of communication and cooperation." (Until Chief Justice John Roberts and Associate Justice Samuel Alito came along, the court had the longest-serving body of the same nine people in Supreme Court history.) Nevertheless, even with fewer nail-biting decisions handed down this term, Justice Kennedy has continued to play a dominant role swing voter or not preventing Roberts and fellow conservatives from dominating the court's decisions.
America's 17th chief justice assumed the bench with the hopes of uniting a fractured court and issuing opinions with one, unanimous voice. Instead, Roberts got a pileup of concurrences and dissents that often resulted in Kennedy determining the law. In the 24 decisions that came down 5-to-4 last year, Kennedy was the decisive vote in every case, never once dissenting. Of those 24, 19 of them reflected the traditional conservative-liberal split (Roberts, Antonin Scalia, Clarence Thomas, Alito versus John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer) with the conservatives winning 13 and the liberals getting six. Says Lazarus, "The only really big case the liberals won 5-4 last term was the global warming case, Massachusetts v. EPA." This term, by contrast, was much more unpredictable and harder to define.
In Kentucky's employment case ruling last week, which found the state's public pension plan not to be age discriminatory, Justice Breyer wrote the opinion joined by fellow liberals Stevens and Souter and by conservatives Roberts and Thomas. (Ginsberg joined Scalia and Alito in Kennedy's dissent.) Likewise the Exxon case, where the court cut the company's punitive damages in the Valdez oil spill, had a similar melange in its 6-3 ruling. "In one way there wasn't the unanimity and consensus the chief justice said he wants, but there was something reassuring this term," says Lazarus. "It seemed less political and more like a lot of lawyers disagreeing. The justices are working much better together and deciding things much more narrowly."
Still, in the ideologically charged cases that ended the term, Justice Kennedy's influence seemed to persist. Says Lee Epstein, constitutional law professor at Northwestern School of Law: "If you look at the cases he was always there." First, Kennedy penned the opinion in Boumediene v. Bush, which many believe was the most significant decision legally this term because the court declared the unconstitutionality of President Bush and Congress' scheme for handling Guantanamo Bay prisoners during a time of heightened national security concerns. ("It was a reasonably big slam," says Epstein.) Kennedy also authored the child rape case banning the death penalty as punishment, another pivotal decision. And he continually formed part of the majority in the other high-profile cases: voter ID, the lethal injection decision, Exxon and the child pornography ruling. By contrast, several prominent decisions this year did not go Roberts' way, most notably Guantanamo Bay and the child rape case. "If Roberts is trying to pull the court to the right, Kennedy is somewhat of a block," adds Epstein. "I think it is still not the court that Roberts or conservative Republicans want yet, and if that's the case it's because of Kennedy."
So will Roberts ever achieve the conservative court he's been looking for? The next Presidential election could provide the key, especially if a justice retires. Justice Stevens is 88 years old; Justice Ginsberg is 75; and rumors are swirling that Justice Souter, 68, might want to move on after 17 years on the bench. It's possible those three liberal-leaning seats will become open over the next few years. One thing is clear: The Supreme Court's search for a consistent ideological identity will continue to provide high drama.