The Progress Report:

OCTOBER 2, 2007

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Ali Frick, and Jeremy Richmond Contact Us | Tell-a-Friend | Archives | Permalink

SUPREME COURT

Courting Conservatives

Last year's "hyperpartisan" Supreme Court produced a "higher share of 5-4 decisions than any term in the last decade." Despite Chief Justice John Roberts's promise to seek greater consensus, 24 out of 68 decisions were resolved by a 5-4 margin. As The New York Times notes, "The Roberts bloc has not adhered to any principled theory of judging. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?" "It is not often in the law that so few have so quickly changed so much," said Justice Stephen Breyer in a high-profile dissent at the end of the last term. This year's term promises more of the same, with Justice Anthony Kennedy once again the pivotal swing vote. While this Court's docket contains cases that could potentially strike Kennedy's "individualistic, even slightly liberal chords," the four-person Roberts bloc will likely continue to go out of its way to issue activist conservative rulings.

PUSHING FORWARD A REAGAN-ERA AGENDA: During their nomination hearings, Robert promised that he harbored "no agenda," and Justice Samuel Alito claimed that the judiciary must operate in a "neutral fashion." But Roberts and Alito, along with Antonin Scalia and Clarence Thomas, "form a solidly conservative bloc that votes together time after time and reaches the results sought by political conservatives." Conservatives called last year the "best Supreme Court term ever" for big business. It's unsurprising that Roberts and Alito, both Bush appointees, vote together. Both men also served under Attorney General Edwin Meese in President Reagan's Justice Department, which famously "released a series of documents" in the 1980s outlining a long-term agenda to change the Court's interpretation of the Constitution. As a new analysis by the Center for American Progress notes, the Guidelines on Constitutional Litigation ordered Justice Department litigators to advance a rigid view of the Constitution, "listing decisions it viewed as 'consistent' and 'inconsistent' with the Reagan administration's interpretation of the nation's founding document." Similarly, another document, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation, predicted "what constitutional questions would be controversial during the 1990s" and "suggested the administration's preferred answers." Roberts and Alito, now joined by Scalia and Thomas, are carrying out this Meese agenda, striking down abortion rights, access to justice, and voluntary school desegregation.

ROLLING BACK DISCRIMINATION PROTECTIONS: Last week, with little notice, the Court agreed to hear CBOCS West v. Humphries, which examines whether a statute that prohibits racial discrimination in employment also prohibits retaliation against those who complain of such discrimination. Not too long ago, the Court may have sided with the employees. Two years ago, it ruled 5 to 4 that "Title IX, a law that bars sex discrimination in schools, also covers retaliation. Justice Sandra Day O'Connor wrote the majority opinion." But her successor, Alito, would likely have been one of the dissenters. It is rare for the justices to hear a case when the issue has been considered by multiple courts of appeals, all of whom are in agreement. But the Roberts court agreed to take Humphries even though "every federal appeals court to consider the issue has agreed that the statute does apply to retaliation," a move that suggests the case may be used for "advancing a particular agenda."

THE 'SUPREME REALM' OF JUSTICE KENNEDY: Of the 24 cases resolved by a 5-4 margin last term, Kennedy was in the majority in every single one. In all of the 68 cases the court decided by signed opinions, Kennedy dissented only twice. Underscoring this dynamic, the Christian Science Monitor noted that the Court "might just as well be called the supreme realm of Justice Anthony Kennedy." There is no guarantee that Kennedy will consistently vote with the conservative bloc again this term; some analysts predict that "the highest-profile cases this year are likely to bring a broader mix of both liberal and conservative victories." For example, in Baze v. Rees, the Court will examine current methods of execution by lethal injection that may cause severe and undetectable pain. The New York Times notes that Kennedy, "who is concerned about death penalty abuses, may provide the fifth vote to hold that these executions violate the Eighth Amendment ban on cruel and unusual punishment."

HEARING FOR HABEAS CORPUS RIGHTS: One of the most prominent cases the Court will be hearing is "a challenge by inmates at the U.S. naval base at Guantanamo to a federal law limiting their access to courts." Last year, the justices refused to hear the case. But in "an action without modern precedent," they reversed course and three months later agreed to take up the case. According to The New York Times, "the development strongly suggested that a majority of the court retains concerns" about the current detainee system, because "the reconsideration required the votes of five justices, instead of the four ordinarily needed to grant a case." In both 2004 and 2006, Kennedy joined his colleagues and struck down the "Bush administration's claims of unlimited authority over prisoners in the government's war on terror." In response, the conservative 109th Congress passed a law sanctioning Bush's program and denying the right of habeas corpus to detainees. "The court took this case to make a larger statement of who we are as a people," said Neal Katyal, a law professor at Georgetown Law Center, who also represents a Guantanamo detainee in a pending case.