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New Supreme Court begins to show its stripes

WASHINGTON—At the Supreme Court, they say each group of nine justices is different, that a switch in just one seat fundamentally alters the dynamic among them all. As the court closes its 2005-06 term, when two new members, including the chief justice, took their seats after a 12-year stasis, that truism is evident in the court's rulings.

From decisions on the Clean Water Act, police procedure and abortion to others on political gerrymandering and the death penalty, the focus was on how Chief Justice John G. Roberts and Justice Samuel Alito were changing the court's outcomes.

In political terms, they established themselves as solid conservatives. But as their approaches to the law became clearer, they revealed nuances in their thinking that distinguished them from the bench's more doctrinaire members, Justices Antonin Scalia and Clarence Thomas.

The term's lone blockbuster opinion—rejecting the Bush administration's military tribunals at the Guantanamo Bay prison in Cuba—highlighted the term's only other significant theme: the emergence of Justice Anthony Kennedy at the court's center. He has taken over the compromising, coalition-building role that he once shared with former Justice Sandra Day O'Connor. In cases that split the justices narrowly, Kennedy was in the majority more than anyone else.

"It's now clear that two justices have replaced Sandra Day O'Connor," said Elliot Mincberg, legal director for People for the American Way. "Justice Alito took her seat on the court, while Justice Kennedy has taken her role as the key swing vote."

It will take at least a few more terms before the character of the new court becomes fully evident. Yet some court watchers say some things are becoming clear.

"This is, of course, more a Kennedy court than a Roberts court," said David Garrow, a law professor at Oxford University in England. "But already we've certainly gotten some clear indications, both stylistic and substantive, of how Roberts will develop."

The term began quietly, with Roberts installed as chief justice and O'Connor still in her seat, awaiting her successor's confirmation. The justices struck an early chord of unanimity in October in a long string of opinions that included some topics that usually bring discord. They did it by deciding many cases on narrow legal grounds, avoiding more controversial elements.

The term's lone abortion case provides an example.

The justices, in considering whether a New Hampshire abortion restriction was unconstitutional because it lacked a health exception for the woman, simply decided that a lower court should consider the question more carefully.

The justices also unanimously said that the government could withhold money from law schools that bar military recruiters and that the government couldn't bar a small Christian sect from using hallucinogenic tea for religious ceremonies.

Overall, the court closed the term with more unanimous opinions than it has in recent years and with fewer concurrences and dissents.

Alito's influence was less noticeable than Roberts', which is typical for a first-year justice who isn't chief. He also missed the term's first half while his confirmation process unfolded.

Once on the court, he established a restrained conservativism that mirrored his work as an appellate judge. His voting record resembled Scalia's and Thomas', but even more Roberts'.

The term offered more clues about Roberts' thinking; as chief justice, he had greater impact. His first dissent came in March, when the court said police could not enter a home on one occupant's say-so if another objects. He craftily took aim at the court majority's logic and turned their own concerns back on them.

The decision, Roberts said, would harm victims of domestic violence whose abusers could simply turn police away at the door.

Roberts' opinion also mocked the majority's attempt to define the scope of cohabitation arrangements and the "social expectations" that accompany them.

"The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation," Roberts wrote. "The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. The possible scenarios are limitless."

The tone wasn't snarky, but the opinion showed how Roberts' razor-sharp intellect could needle his opponents.

Garrow also points to a Roberts line in the Texas political gerrymandering case, where he expressed frustration over efforts to draw congressional districts to assure just the right ethnic mix.

"It is a sordid business, this divvying us up by race," Roberts wrote. That sentiment could influence him next term on a case involving school district efforts to maintain certain levels of minority enrollment.

The next term is already shaping up as a big one, with major abortion, affirmative action and environmental cases on the docket.

Roberts' most sweeping opinion came in a case where the court didn't decide a substantive issue. When the justices dismissed a suit by Ohio taxpayers claiming that a state tax incentive plan violated their constitutional rights, Roberts took the opportunity to pen a virtual treatise on the judicial doctrine of "standing," or when someone has a right to bring a claim before a federal court.

It is the first question that courts must address when considering a case, and it's a subject of sharp debate in legal circles.

Roberts outlined an approach that tacks closely to the line taken by many judicial conservatives, who believe the ability to sue is limited. Remarkably, Roberts drew no objections from other justices or even a concurring opinion suggesting there was another side to consider. That could be a sign of deference to his leadership, or it could be diplomacy among colleagues who recognized that Roberts' opinion wasn't binding at that point.

Roberts and Alito distinguished themselves from the court's most rigidly conservative members, Scalia and Thomas, in several key cases. They backed away from the duo's assertion that no amount of political gerrymandering should compel court intervention and from their proposition that any limits on political contributions are unconstitutional.

Kennedy emerged as the justice that the court's liberal and conservative blocs must woo to reach a majority. That was evident not just in how frequently he provided a crucial fifth vote, but also in how often his opinion tempered a ruling.

In a decision that said police armed with warrants can enter a house unannounced without fear that any evidence they find will be excluded from trial, Kennedy's opinion kept the decision from obliterating the so-called "exclusionary rule" altogether.

In a case that questioned the scope of the Clean Water Act, Kennedy's opinion held the court majority back from nearly eliminating government regulation of wetlands.

Kennedy also modified the court's decision on political gerrymandering, leaving open the possibility for further court refinement of the issue in the future.


(c) 2006, McClatchy-Tribune Information Services.

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