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Tuesday, June 10, 2008

Courts - End of SCOTUS term is in sight

This term of the Supreme Court is nearing its end and a number of good articles have been printed recently, looking at the Court. Linda Greenhouse, the great NY Times Supreme Court reporter who is soon moving on, had a story May 23rd headed "At Supreme Court, 5-to-4 Rulings Fade, but Why?" It reminds us that Justice Kennedy was supposed to be the new Sandra Day O'Connor, the swing vote in all the 5-4 opinions. Instead, Greenhouse writes, that only lasted one year:

Where have all the 5-to-4 decisions gone?

And whatever happened to the “Kennedy Court”?

A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases — the highest proportion in years — had been decided by margins of a single vote.

But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

Something is happening, clearly. The question is what.

And what of Sandra Day O'connor herself?Joan Biskupic of USA Today has a long article today headed "O'Connor's legacy fading on reshaped court." It begins:
When retired justice Sandra Day O'Connor visited Capitol Hill recently to speak publicly about her husband's Alzheimer's, she was greeted as a national hero. Senators lauded her historic place as the first woman on the Supreme Court and the justice whose opinions often set the nation's law.

Even as O'Connor broadens her public profile, though, much of her legal signature already is fading from the court. Since she stepped down in January 2006 after a nearly quarter-century tenure, the court has undercut several of her most important rulings on issues such as abortion rights, campaign finance law and government policies intended to help racial minorities.

Notably absent among the current justices is an emphasis on how the high court's decisions affect the states, whose officials often complain about congressional mandates and federal judges meddling in their business. State autonomy was a priority for O'Connor, a former Arizona state senator who was the only former elected official on the court during her tenure. She was adamant that states are separate political entities that should be able to operate without federal intervention.

The court's new direction on high-profile social-policy questions — which has included enhancing the government's authority to restrict abortion — stems from its more conservative approach under Chief Justice John Roberts and O'Connor's successor, Samuel Alito, who is to the right of O'Connor.

Posted by Marcia Oddi on June 10, 2008 04:16 PM
Posted to Courts in general