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Supreme Court Ends Term On Ideological Edge


This past, final week of the Supreme Court's term offered ample evidence that, in the words of one observer, the high court is still sitting on an ideological knife's edge.

The bitter divide on the court re-emerged. In rapid succession, the justices split 5-4 on gun rights, the death penalty, Guantanamo detainees and campaign finance. NPR legal affairs correspondent Nina Totenberg has this look back at the court term and its prospects for the future.


NINA TOTENBERG: With the court so closely divided and as many as three retirements possible in the next four years, the message to voters is clear: This election could determine whether the court swings sharply to the right. It will not swing sharply to the left.

You see, the court's four most liberal justices are also among its oldest. One is in his late 80s. The other three are or will soon be in their 70s. So if a President McCain, who's pledged to nominate conservatives, were to replace one or more of the liberals, he could solidify a conservative majority - probably for decades to come.

If a President Obama were to fill these same vacancies, a conservative tsunami would be avoided, but the court would likely continue to be closely divided with a tilt to the right.

The man in the middle this term, last term, and until something dramatic changes, is Justice Anthony Kennedy, more conservative than Justice Sandra Day O'Connor, who used to be the center point until her retirement, but still less conservative than the court's conservative wing. Yale Law Professor Akhil Amar.

Professor AKHIL AMAR (Yale Law School): It's a court that's balanced in the heart and soul of Anthony Kennedy.


TOTENBERG: Thus, this term, Kennedy was the decisive vote for conservatives, siding with them in declaring that the Constitution protects an individual's right to own a gun. He also joined the four conservatives to strike down an important campaign-finance regulation aimed at leveling the playing field when millionaire candidates spend huge amounts of their own money.

But Kennedy switched sides to the liberals to invalidate the death penalty for the rape of a child and to declare that detainees at Guantanamo have a right to challenge their detentions in court.

Yale's Professor Amar points out that Kennedy was appointed by a Republican president, Ronald Reagan, who had to deal with a Democratic Senate and failed to win confirmation for his first choice, Robert Bork.

Prof. AMAR: And so we see in Kennedy's moderation, in his willingness to swing on occasion, we see the product of the political process of Supreme Court nomination and confirmation.

TOTENBERG: As for the court itself, it seems unafraid to swat down the other institutions of government. Stanford Law Professor Jeffrey Fisher.

Professor JEFFREY FISHER (Stanford Law School): If you just look at the last two weeks of the term, the court in five opinions rejected the considered decision-making of almost every other kind of body in our democratic government.

TOTENBERG: It rejected Congress's judgments about the campaign-finance law. It rejected the president's, and Congress's, about how to handle the detainees at Guantanamo. It rejected a state's law-making decisions by striking down the death penalty for child rape. It rejected local decision-making in invalidating the D.C. ban on handguns. And it rejected a jury judgment and a trial judge's in slashing punitive damages against Exxon for a gargantuan oil spill in Alaska.

And yet many of these decisions leave more questions than answers. In the gun case, for instance, the court left open whether registration laws are constitutional, waiting periods, bans on armor-piercing bullets, bans on assault rifles, and lots of other questions.

Pepperdine Law Professor Douglas Kmiec says that's not necessarily bad, especially in an election year.

Professor DOUGLAS KMIEC (Pepperdine Law School): Without a doubt, one of the salutary benefits - and salutary, I think, for the court as an institution - is that a court with a lower profile is less likely to be the proverbial political football to be battered from pillar to post.

TOTENBERG: The gun decision is widely seen as good for Barack Obama because it diffuses an issue that would otherwise have energized gun-rights activists, who tend to be Republicans.

As in the gun case, scholars note that the court, in many of its most important rulings, set the table for future litigation. Stanford Law Professor Pam Karlan.

Professor PAM KARLAN (Stanford Law School): So I expect to see guns cases going back to the Supreme Court. I expect to see punitive damages cases. We're going to see a lot more litigation out of Guantanamo, and we're going to see litigation of voter ID requirements.

TOTENBERG: The question of state voter ID requirements came up in a test case from Indiana, where without any evidence of voter fraud at the polls, the Republican-dominated legislature enacted a law requiring voters to show a current government photo ID before they can cast a ballot. Democrats cried foul, saying it imposed too much of a burden on the poor, who often have no driver's license or other government-issued photo ID.

In a splintered decision, the court upheld the law by a 6-3 vote, but three of the six-man majority said they were upholding the law only because there was no evidence showing that it had actually prevented real voters from casting ballots.

The court took a similar position in a case testing whether the current procedures used to execute the condemned by lethal injection are unconstitutionally cruel. Again, the majority was splintered in its opinions, but the bottom line was that critics were unable to show an unreasonable risk of pain and suffering.

In both cases, however, the court left the door open to future challenges. Some court observers have credited Chief Justice John Roberts with bringing some consensus in these cases by limiting the court's holding to a very narrow question. Others, however, see these decisions as damage control by the court's liberals. In other words, some of the liberals may have agreed to a limited ruling in order to prevent a larger loss.

Then too, some justices have conceded privately that the court's composition itself limits the discussion. Over the last three decades, the makeup of the court has moved so steadily to the right that Justice John Paul Stevens, for example, once viewed as a centrist, is now considered the court's most liberal member.

Likewise, Justices Ginsburg, Breyer and Souter, universally referred to by analysts as liberals, are far more conservative than the liberal lions who preceded them a generation ago. That has had its effect, as Supreme Court advocate Tom Goldstein(ph) observes.

Mr. TOM GOLDSTEIN: The entire conversation is different because there's a voice that's not being heard in the Supreme Court from what would now be regarded as the far left. When you aren't even talking to somebody who has those views, when lawyers aren't even bothering to file those briefs in front of you, those kinds of ideas, much more expansively protective of individual liberty, just aren't on the table anymore. And so we do have hard-fought five-fours in this court. But on a lot of questions, the range of possible outcomes is from the middle to the right, and that's all that anybody is talking about.

TOTENBERG: Stanford's Jeffrey Fisher puts it another way.

Mr. FISHER: We're going to get cases that are consistently testing the middle of the court, wherever that middle may be.

TOTENBERG: But he adds…

Mr. FISHER: This term just serves notice yet again to the American public on the eve of an election of just how important the court is.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.