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Supreme Court Term Brought Some Surprises

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.

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    Next, taking stock of the just-completed Supreme Court term, and to 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?


    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.


    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.


    Give me some examples.


    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.