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Supreme Court Term Brought Some Surprises

July 3, 2009 at 12:00 AM EDT
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Legal analysts Linda Greenhouse and Thomas Goldstein examine the impact of the most significant Supreme Court decisions of the 2008 term, including a narrow ruling on the landmark Voting Rights Act.

JUDY WOODRUFF: Next, taking stock of the just-completed Supreme Court term, and to Gwen Ifill.

GWEN IFILL: After all was said and done, the Supreme Court term that ended this week defied characterization. Highly anticipated civil rights decisions left major questions for another day, while other presumably predictable outcomes on business and criminal procedure cases came as a surprise. What did the court’s work tell us about the past, the present, and the future? For that, we turn to two veteran court watchers: Tom Goldstein, a Washington lawyer and founder of; and Linda Greenhouse, former Supreme Court correspondent for the New York Times, she’s now a journalist-in-residence and lecturer at Yale Law School. So, Tom Goldstein, you keep track of this bit by bit by bit. Looking back over this term, what did the court tell us about itself?

TOM GOLDSTEIN, Well, we do have a conservative Supreme Court. In the biggest, closest-divided cases, the conservatives tended to come out in front. But for the right, it was two steps forward, one step back, because there were surprises — on criminal procedure and other issues — where the left did make some progress. And, of course, not every case is ideological. The court deals with virtually every question of federal law, and so it’s a very diverse term.

GWEN IFILL: What do you think about that, Linda?

LINDA GREENHOUSE, Yale Law School: Well, I think this was a term that really repays people to read between the lines. And it’s true that not every blockbuster looked like a blockbuster and a lot of what the court did looked very technical and kind of obscure. But reading between the lines, or behind the lines or whatever, I think you see a conservative bloc, led by Chief Justice Roberts, really in control and aided — specifically aided by Justice Anthony Kennedy, who very much moved decisively this term over into the conservative bloc. He’s still the, quote, “swing justice,” but he’s always swinging right, so that to me seemed to be the theme of the term.

GWEN IFILL: Give me some examples.

LINDA GREENHOUSE: Well, OK, so let’s look at the Voting Rights Act case. This is a case — and you’ve talked about it, obviously, before — this was a case where the court was asked to decide whether the extension of the Voting Rights Act, the part of the Voting Rights Act that makes certain jurisdictions in the country have to get permission of the federal government before they change anything about their voting procedures, the court was asked to decide whether that was constitutional. This is an iconic civil rights-era statute and a very big deal. So what did the court do? By a vote of 8-1, as you know, they didn’t reach the big issue. They fiddled around and they came up with a very odd statutory way out of a box. But here’s the thing: Why were they in that box to begin with? Because here was a case that the Bush administration had said to the court, You don’t have to take this case. All you have to do is affirm it summarily, affirm the lower court summarily. That satisfies the jurisdictional requirement of this type of case, and there’s absolutely no need to hear the case and have a briefed, then argue it, and so on. But yet, the court reached out to take it. And I think, having taken it, I think at least one of the conservatives, Justice Kennedy, and maybe even Chief Justice Roberts, got a little nervous about the implications and they said, OK, we’ll wait for another day.

Incremental steps

GWEN IFILL: How about that, Tom Goldstein? Was that a hallmark of this court, where they would pick a big, big case and then make a narrow, narrow decision?

TOM GOLDSTEIN: Well, they would take a step in the direction of a conservative result. So, for example, that opinion has a lot of language casting doubt on the constitutionality of the Voting Rights Act. They've signaled that they want to get even deeper into campaign finance law and head towards deregulation and a greater ruling that you can't regulate in campaigns...

GWEN IFILL: By taking that Hillary Clinton movie case and saying they want to rehear it in the fall.

TOM GOLDSTEIN: That's right. They agreed to hear it, but now they've expanded the scope of the case to decide whether or not they should overrule two of their prior precedents, including one very recent precedent from when Sandra Day O'Connor was on the court.

So you can look at three, four, five different cases where the court didn't come up with a really dramatic conservative result, but it issued a decision that, in later years, I think, will be cited again and again to move the law.

GWEN IFILL: So you agree with Linda that it's incrementalism in favor of moving the court ever very slowly to the right?

TOM GOLDSTEIN: I do, although there are counter examples. You have to recognize that we get some sort of mixed-up 5-4 majorities, sometimes when the justices on the far right and the far left come together for a result here, a couple of cases favoring defendants, and so not every step is to the right.

But overwhelmingly, it's the case that you have five quite conservative justices on the Supreme Court, justices who are concerned about old precedent that they think is too liberal, and over time I think they're going to do away with it.

Justice Kennedy, the swing vote

GWEN IFILL: I want to talk about a couple of the justices. You mentioned Justice Kennedy. Could you elaborate on that, Linda? When he first took -- when Sandra Day O'Connor retired, people said, "Ah, the new swing justice, he's going to be the next Sandra Day O'Connor." Not quite.

LINDA GREENHOUSE: Well, he is in the role that he plays, in that, you know, people said it was the O'Connor court, because she held that middle position.

GWEN IFILL: In that there are four committed liberals, four committed conservatives, and then one other person.

LINDA GREENHOUSE: Right. Right. So she leaves, and Justice Kennedy inherits that position, and certainly it's the Kennedy court. And as Tom Goldstein famously said, I guess very early in the Roberts era, "It's Justice Kennedy's world, and we're just living in it."

And that was certainly true this term, where, in most of the major 5-4 cases -- and most of the big cases were 5-4 -- he made the difference, and he was scarcely ever in dissent. I think in the entire term -- Tom's the statistician -- but I think in the entire term, Justice Kennedy had only six dissenting votes, whereas the justices on the liberal side had 25, 26, 27, and the justices on the conservative side had 11, 12, 13. That's the kind of range, and Kennedy in the middle with six.

So what's the difference between him and Sandra O'Connor? Sandra O'Connor was really a different kind of justice. She was much more -- I mean, all this I'm oversimplifying, but, you know, she came out of electoral politics. She kind of was grounded in the life of the Southwest where she grew up, and she was always concerned with practical implications.

Justice Kennedy, I think, is a much more categorical thinker. He thinks by labels.

GWEN IFILL: Let me ask Tom about -- you've written about Justices Thomas and Scalia and how their actions on the court this year were also very revealing.

TOM GOLDSTEIN: It's interesting. Justice Scalia and Justice Thomas, though you may disagree with them or agree with them, they're very principled in a lot of different contexts, so they have a number of votes this term that might surprise people because they favor defendants.

And the liberals would have lost even more cases if it weren't ironically for Justice Scalia and Justice Thomas. Questions of criminal procedure about whether you have the right to confront a lab technician if someone comes in to a criminal case and says, "This was cocaine." Another case about the power of the police to search a car when you're arrested in a traffic stop. Another case about punitive damages.

Justice Thomas, in particular, I think has emerged as the court's sort of most independent thinker. He has some quite radical ideas on the law and doesn't feel constrained by prior precedent at all.

Future direction of the court

LINDA GREENHOUSE: Well, there's always potential for change when somebody new comes on the court, because it's a small group of nine people and the interpersonal dynamics, obviously, change.

But from what we know, I think it would be very unlikely the center of gravity changes in the court. I think her votes would be much like the votes of Justice Souter, whom she's replacing.

But, you know, she may mix it up quite a bit. I mean, she's, you know, a powerful personality and somebody who's not shy about speaking up and making her points known. And so I think, you know, we'll be hearing from her.

GWEN IFILL: And assuming that a Democratic president will have another chance to appoint another Supreme Court justice, down the road, even if there were eight years down the road for this administration, is there any way that he can affect the direction of the court?

TOM GOLDSTEIN: No. President Obama is in a box. The only likely retirements like Justice Souter are justices on the left. There are going to be appointments a lot like the people they replace.

It's, strangely enough, not for another eight years when we have the likely retirements at some point of Justice Kennedy and Justice Scalia, both of whom are now 73, that there's a real change, where somebody whom is on the right might be replaced by somebody on the left.

So the court is going to stay solidly conservative in its majority, which is why I think John Roberts, though his isn't the pivot vote, it really is his court, I think, his sense of jurisprudence, moving step by step. That's why he can be patient in addressing these questions in the law.

GWEN IFILL: And we'll have to be, as well. Tom Goldstein, Linda Greenhouse, thank you both very much.