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Hamdan, Redistricting Rulings Mark New Roberts Court’s First Term

July 3, 2006 at 12:00 AM EDT

MARGARET WARNER: It was the Supreme Court’s inaugural term under Chief Justice John Roberts, the first new chief in two decades. The blockbuster ruling of this term, involving presidential power in time of war, didn’t emerge until the final day last week.

But, before then, the court issued 68 decisions on legal controversies, ranging from political redistricting to physician-assisted suicide, and from the death penalty and other criminal law matters to military recruitment on college campuses. The term was notable, too, for the midway replacement of Justice Sandra Day O’Connor by new justice Samuel Alito.

We assess the term now with four longtime court watchers: in California, Douglas Kmiec, a professor of constitutional law at Pepperdine University Law School; and Kathleen Sullivan, director of the Constitutional Law Center at Stanford University and former dean of its law school; and, here in Washington: Stuart Taylor, a columnist for The Legal Times and senior writer for “National Journal” magazine; and Jeffrey Rosen, a law professor at George Washington University and legal affairs editor at “The New Republic,” and, I should say, author of a new book as well about the courts.

Welcome to you all.

If this is the beginning of the Roberts’ era, Kathleen Sullivan, to what degree did he put a distinctive stamp on this court?

KATHLEEN SULLIVAN, Constitutional Law Center Director, Stanford University: Margaret, the term this year is best described as the Roberts conservative court in waiting. He was unable to put a clear stamp on the court in any new direction.

And let’s make no mistake about it. Chief Justice Roberts and Justice Alito are very conservative. Justice Alito voted with the conservative bloc 15 percent more of the time than Justice O’Connor, whom he replaced.

But, in the big decisions this term, Margaret, there was a real rebuke by the court to the extreme grab for executive power by the Bush administration in both the Hamdan vs. Rumsfeld case about Guantanamo and the Gonzales vs. Oregon case about physician-assisted suicide.

And environmentalists got a reprieve in the big environmental case of the term, the case about the Clean Water Act, which still gave Congress a lot of power to protect the environment. So, in the big cases, the liberal bloc, plus Justice Kennedy, held to keep the court at a more moderate or liberal place than you might have expected.

MARGARET WARNER: Doug Kmiec, do you see it that way; he was really unable to put a clear stamp in this first year?

DOUGLAS KMIEC, Professor of Constitutional Law, Pepperdine University Law School: Margaret, I think it’s been a very successful year for the Roberts court.

I think he told us what type of approach he would have in his confirmation proceeding. He said he viewed his role as that of an umpire calling balls and strikes, that he had a conception of the judicial role that was carefully limited to cases or controversies in deciding particular cases.

And that’s what he came in with: an attitude of judicial humility, an attitude that respects precedent, and a great deal of charm and collegiality. And while, yes, he didn’t get everything he wanted, and there were some significant disappointments at the end of the term, he also demonstrated a capacity to work with the court as a whole.

There were a higher number of unanimous opinions this year than previous years. There was a declining number of divided opinions. I think all of this augurs very well for the future of the court under John Roberts and the work of Sam Alito as well.

Bringing the court together

Jeffrey Rosen
George Washington University
I hope we don't lose sight of the fact that he has a vision, a very distinctive one, which he has set out. And he believes that deciding cases as narrowly as possible allows justices on both sides to coalesce.

MARGARET WARNER: Jeffrey Rosen, he did say at his confirmation hearing that, in effect, he wanted to build consensus on the court. How well do you think he did in that?

JEFFREY ROSEN, Law Professor, George Washington University Law School: I think he did quite well, actually. There were 40 percent of the decisions that were unanimous, as opposed to about 30 percent last year, and fewer 5-4 decisions, too.

You know, there was a very interesting speech that he gave at Georgetown for their commencement just a few weeks ago. And he said the chief justice has a unique role in creating consensus. No other justice can do it. And he said that unanimity or near unanimity fosters respect for the law and allows for lower courts and for citizens to understand what's actually going on.

MARGARET WARNER: But he was able to do that?

JEFFREY ROSEN: Well, he was. I mean, I was...

MARGARET WARNER: On the big cases, the contentious ones?

JEFFREY ROSEN: I was -- I was impressed that, in the Solomon Amendment case, for example, unanimously...

MARGARET WARNER: That's the one about recruiting on college campuses by the military.

JEFFREY ROSEN: Exactly. Congress is allowed to deny federal funds to campuses that refuse to give access to the military.

Who would have thought that he could have created consensus? He did it deftly and with some style. And, then, of course, there was an abortion case, which people thought would fracture the court terribly: Do you have to have a medical emergency exception? And he came up with a neat procedural dodge which sent it back to the lower courts.

So, in all of the Sturm und Drang of the final decisions, I hope we don't lose sight of the fact that he has a vision, a very distinctive one, which he has set out. And he believes that deciding cases as narrowly as possible allows justices on both sides to coalesce.

It's true, though, that he did say, when people disagree, we shouldn't suppress disagreement.

And he himself proved very able, in the three cases where he filed separate dissents, to really go at it. He called Justice Souter -- he sort of ridiculed his idea that a man's home is his castle, and provoking an angry response from Souter. He could give as well as he took.

But seems to think, when you can, be unanimous; when not, that it's important to express dissent very firmly.

MARGARET WARNER: How do you see the impact, Stuart, of Justice Roberts and the other new justice, Justice Alito?

STUART TAYLOR, Senior Writer, "The National Journal": Well, in terms of trying to foster consensus, Jeff you the half-full part of the glass. I will give a little bit of the half-empty.

It's important to remember that Chief Justice Rehnquist, his predecessor, for whom he clerked, once said that Supreme Court justices are as independent as hogs on ice. You can't herd them. They're like cats would be another thing.

And Roberts made a mighty effort to foster consensus. But it's an uphill battle with these very independent people. And I think how uphill it is was shown in two decisions toward the end of the term on big political issues, gerrymandering in Texas and campaign finance, in which, each case, there were six separate opinions of various coalitions of justice, no coalition numbering more than two.

That's not exactly fostering consensus. That's not something for which Roberts can be faulted. I think he's not a magician.

In terms of the court's political complexion, if you will, Roberts' voting patterns are a great deal like those of the man he replaced, Chief Justice Rehnquist, allied with Scalia and Thomas a lot of the time, not quite all of the time.

For example, he did not join their opinion suggesting that all campaign finance reform legislation be thrown out. He joined Justice Breyer's more modulated opinion on that.

Justice Alito so far seems to be what a lot of people predicted: more conservative on -- here and there than Justice O'Connor was.

MARGARET WARNER: And a more reliable one.

STUART TAYLOR: Yes. But she was not particularly conservative in her last few years.

And I'm not sure that he will be a whole lot, I'm not buying into the idea that he will be a consistent ally of Scalia and Thomas. We will have to wait and see. But I doubt it.

A dramatic end to the term

Kathleen Sullivan
Stanford University
[Hamdan] ranks in history with the case restraining Truman from seizing the steel mills ... or the case forcing Nixon to turn over the tapes, in asserting from the court that separation of powers is a fundamental principle of our Constitution.

MARGARET WARNER: And turning more to specific cases -- and back to you, Kathleen Sullivan -- would you say the case that this term will be most remembered for is the Hamdan case, is the one dealing with the Guantanamo detainees? And, if so, what message was the court really sending here?


Hamdan vs. Rumsfeld was the most important case of this term. And it ranks in history with the case restraining Truman from seizing the steel mills during Korea, or the case forcing Nixon to turn over the tapes, in asserting from the court that separation of powers is a fundamental principle of our Constitution, important to the founders, and that separation of powers means that the executive branch is not allowed to engage in unilateral assertions of power without authorization by Congress.

Hamdan held specifically that to try detained enemy combatants at Guantanamo by so-called military commissions or military tribunals that did not adhere to the Uniform Code of Military Justice and that violated the Geneva Convention, Article 3, in so far as they didn't allow the prisoner to be present at the proceedings and didn't allow him to confront hearsay evidence against him, that to create this new animal called a military tribunal, without clear authorization by a Congress and against international law, was not the prerogative of the president.

We have seen an unprecedented assertion of executive power in the current Bush administration, one that makes President Nixon look like a minor-leaguer, an assertion of power to make up new methods, new laws, to sign signing statements that don't veto a law of Congress, but say that the president is free to deviate from it.

And the court sent a very strong message in this 5-4 decision that this so-called unitary executive, the executive needs to have energy and zeal, but he also needs to have authorization by law, law by Congress and, in this case, international law, which Congress has assumed to have wanted the president to follow, unless it says otherwise.

So, it's a very strong rebuke to the Bush administration's entire theory of unitary and unilateral executive authority, and, in that sense, is the most important decision of the term.

MARGARET WARNER: Doug Kmiec, do you agree, most important decision of the term? And would you agree that it's a rebuke to the Bush administration's theory or concept of executive authority, particularly in times of war?

DOUGLAS KMIEC: Margaret, I think it's a very unfortunate opinion. It's one that not only, I think, mistakenly interprets the existing law, inserts the court into an area of foreign affairs where it has never been inserted before, but it's not just a criticism of the president, because, after all, the president was confronted with an extraordinary attack on the United States with individuals who don't fight in uniform, who target civilian populations, who don't observe the laws of war.

It was not an extraordinary conclusion on the president's part that the Geneva Convention that is meant to apply to honorable soldiers and signatory nations didn't apply.

This court's decision in Hamdan not only turned away the president; it turns away the Congress of the United States. The Congress had specifically said, in the Detainee Treatment Act, that the jurisdiction of the court was limited. Now, there was an argument on both sides whether it applied to the existing cases or only future cases.

But the court gave very little deference to Congress on that question, in terms of the scope of the language that it used.

MARGARET WARNER: But, briefly, if I can interrupt you, though, do you think that just -- not just on the Hamdan case, but that the court was sending a message about executive authority?

DOUGLAS KMIEC: Well, I don't think that the case should be over-read.

I think it is largely a case about the authority of military commissions. The president and the court disagreed on how to interpret the Uniform Code of Military Justice and whether or not his military commissions were authorized under it.

I think the attempts to link this together with wiretapping, to link it together with signing statements, to link it together with interrogation practices is a mistake, because the court writes more carefully than that.

And the example I would give of that is that we had another foreign affairs case dealing with the war on terror. It's one that wasn't really an opinion, and it was a refusal to get involved. It was the Padilla case.

And the justices who wrote explaining why the court refused to get involved were Justice Stevens, who wrote Hamdan, Chief Justice Roberts, and Justice Kennedy. And that, Margaret, I think are the centers of influence on this court. And all three of them wrote to indicate, it is appropriate for the Justice Department to proceed with its transfer of Mr. Padilla into the criminal justice system.

MARGARET WARNER: He had been designated an enemy combatant.

DOUGLAS KMIEC: Well, it designated him as an enemy combatant...


DOUGLAS KMIEC: ... but then decided to treat him as a criminal defendant, and gave the executive latitude to do that.

Unique judicial personalities

Stuart Taylor
The Legal Times
I think he's just more moderate-spirited than some of them... He has a passion for First Amendment free speech... And, also, he's pretty tough on... the church side of the church-state equation.

MARGARET WARNER: All right. Let me get to Jeffrey Rosen here.

Jeffrey, if we can move on to another area, because -- so we don't spend the whole time on Hamdan, what about the other big area that people were waiting for, having to do with political issues, where there was both campaign finance restrictions, spending restrictions in Vermont, and, also, of course, the redistricting case?


These were awfully interesting. And despite the fractured opinions in both cases, it was especially interesting that Chief Justice Roberts, once again, pointedly distanced himself from Justices Scalia and Thomas, who, in both cases, wanted to radically overturn existing precedent and rethink the law from the ground up.

In the case of campaign finance regulation, Scalia and Thomas had Buckley vs. Valeo, which has governed this area for a long time, as insupportable and should be overruled. Roberts pointedly refused to join that, and said there was no need to reexamine Buckley, and joined Stephen Breyer, of all people, in saying that it's important for incumbents not to be able to entrench themselves. Democracy is served by this regulation.

And, then, in the gerrymandering case, Scalia and Thomas said this sort of stuff should never come into court. We can't possibly come up with a standard. Roberts didn't join that either.

He said: I don't have to decide that. I'm just going to narrowly confine myself to the case at hand.

So, those people who were afraid that Roberts in particular would be a reliable vote for Scalia and Thomas, I think, would have to be disappointed here.

MARGARET WARNER: Stuart, I have to ask you about Justice Kennedy, because the analysis -- and, just, if you look at these cases, Kennedy was clearly the swing vote.

One, do you agree with that? But, two, what kind of a swing vote is he? I mean, we spent years analyzing Justice O'Connor...


MARGARET WARNER: ... and what would move her to join the liberal bloc vs. the conservative bloc. What about Justice Kennedy?

STUART TAYLOR: Well, he plays a similar role now to the one Justice O'Connor played before. In fact, he's played that role for a while.

There have been a lot of 5-4s over the last 20 or more years, where Kennedy was the swing vote as -- and -- and either with Justice O'Connor, or he was swinging to the left of her sometimes. Now that she's gone, he's all alone in the middle. Unless Justice Alito ends up closer to him than we might think, he's all alone in the middle. There are going to be a lot of cases where he's the one that decides.

It's almost a parity. In the Texas case we were talking about, five justices said: We're going to uphold this against the gerrymandering charge.

And five justices said: We're going to strike down one district under the Voting Rights Act. And he was the only member of both majorities.



MARGARET WARNER: But what is it that drives him, I mean, if you were a lawyer trying to figure out which way he would go on our case?

STUART TAYLOR: Well, I think he's just more moderate-spirited than some of them. But, also, there are a few real passions he has.

He has a passion for First Amendment free speech. He seems to have a passion for expanding gay rights under the Constitution, a limited passion. And, also, he's pretty tough on church-state. He's tough on the church side of the church-state equation.

And then there are just a whole lot of other cases where he's up for grabs. He's tough on affirmative action. So, you can pick cases where he's consistently allied with the conservatives. You can pick cases where he's fairly consistently allied with the liberals. And you can pick cases where who knows which way he's going to go. And, in that, he's not unlike Justice O'Connor.

MARGARET WARNER: I'm afraid we have to leave it there.

Kathleen Sullivan, gentlemen, thank you all.