High Court's Tilt Hinges on Election's Outcome
WASHINGTON - The final flurry of rulings in the Supreme Court's just-completed term made it clear that the future of the court, and some of its most contentious rulings, rests with voters who will elect a new president in November.
The justices managed to narrow their ideological differences at times during the 2007-08 term, and lowered the temperature a bit on such heated issues as executions and gun control. But rulings in the last two weeks showed that it's still the same divided court, with moderately conservative Justice Anthony Kennedy standing between two rival blocs - a configuration that could change with the election's outcome.
Conservatives won most of the late rulings, culminating in Thursday's 5-4 decision that overturned a Washington, D.C., handgun ban and declared for the first time that Americans have a constitutional right to own and carry firearms. But the moderate-to-liberal wing, joined by Kennedy, prevailed in perhaps the term's most important case, the 5-4 ruling June 12 that rebuffed President Bush's claim of executive power and allowed inmates at Guantanamo Bay to go to federal court and challenge their confinement.
Still, the lineup in the Guantanamo ruling, and in Wednesday's ruling barring death sentences for child rape and other nonfatal crimes, showed the precariousness of any liberal majority and the potential effect on the court of the presidential contest between John McCain and Barack Obama.
Kennedy's opinions in both cases were joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Stevens is 88; Ginsburg is 75 and has had cancer; and Souter, 68, has been widely reported to be considering retirement. None of the more conservative justices - Antonin Scalia, Clarence Thomas, Samuel Alito or Chief Justice John Roberts - is likely to retire anytime soon.
"Given the age of the moderate liberals, a court after an Obama election will not be that much different," said Christopher Eisgruber, provost at Princeton University and a former Stevens law clerk who has written a book about court appointments. "With McCain, we could see a really radically conservative court."
Legal commentators differed on whether a McCain appointee would provide the decisive vote to repeal the 1973 Roe vs. Wade decision on abortion - Paul Bender, an Arizona State law professor and former Supreme Court clerk, said Senate Democrats would probably thwart such an appointment. But all agreed that a new Republican appointee would tilt the court noticeably to the right.
The election will decide "whether Kennedy remains in the center chair or whether (his vote) becomes irrelevant" in close cases, said conservative scholar John Eastman, law school dean at Chapman University in Orange County.
The court ended its term, as usual, with a series of prominent and closely contested cases.
The handgun ruling - a set of competing dissertations on the history and meaning of the Constitution's Second Amendment that stretched for 157 pages - was decided by a single vote, as were the Guantanamo case, the ruling on death sentences for child rape, and a ruling Thursday overturning the so-called Millionaires' Amendment that allowed opponents of wealthy, self-funded House candidates to exceed normal contribution limits.
The court voted 5-3 Wednesday to cut punitive damages in the Exxon Valdez oil spill from $2.5 billion to $500 million, and split 4-4 on another issue in that case.
But the divisions were less pronounced in some major cases earlier in the term.
The court voted 7-2 to reject a challenge by condemned prisoners in Kentucky to the three-drug sequence used by most states for lethal injections - although Stevens, part of the majority, said in a separate opinion that he was prepared to outlaw capital punishment. A Republican-sponsored Indiana law requiring voters to show photo identification at the polls, the subject of fierce partisan debate, was upheld 6-3.
The justices also voted 8-1 to bar damage suits in state courts over medical devices that federal regulators had approved. They voted 7-2 to uphold a federal law banning the promotion of real or virtual child pornography.
"We're witnessing the continued Robertization of the court," said Pepperdine University Law Professor Douglas Kmiec, coining a term for the influence of the chief justice, who has pledged to seek greater consensus and fewer divided rulings.
Kmiec said Roberts has persuaded his colleagues to take up fewer cases and, at times, issue narrow rulings that bridge ideological gulfs. This past term's docket contained no cases on abortion or affirmative action, he noted, and even the handgun ruling, a sharply divided opinion on an emotional subject, left room for state and local regulation and somewhat mollified gun-control advocates.
"The chief justice not only did the court a favor by lowering the profile of the court, but will make it harder for candidates like Sen. McCain to make the court an issue," said Kmiec, a conservative who supports Obama.
The downside of the court's "less-sweeping opinions," said University of Richmond Law Professor Carl Tobias, is that they often leave many questions unanswered. He noted that the ruling on lethal injections in Kentucky has done little to stem a flood of lawsuits from condemned inmates in other states, including California, challenging specific execution procedures. Likewise, lower courts may need years to define the contours of the handgun ruling.
The term was also marked by a series of pro-business rulings. Besides the Exxon Valdez decision and the ban on state lawsuits over federally approved medical devices, the court barred securities-fraud claims against bankers, accountants and others who may have helped companies deceive their shareholders, and overturned a California law that banned companies from spending state funds on anti-union activities.
"I think there are five to seven (justices) on the court who think that tort (damage) law has gone too far and is interfering with the way Congress wants to regulate business," said Bender, the Arizona State professor.
On the other hand, workers scored successes with rulings allowing them to sue when employers retaliate against them for claiming discrimination because of race or age, and making it easier for workers to win certain age-bias cases.
Overall, said Princeton's Eisgruber, while the court is dominated by conservatives, "if you're looking at just this term, call it a draw."
The court's major rulings
Major rulings of the U.S. Supreme Court in the 2007-08 term:
-- Guns - The Constitution's Second Amendment guarantees individuals the right to own and carry firearms for self-defense, the court said in invalidating a Washington, D.C., ordinance that prohibited carrying handguns in the home. Vote: 5-4.
-- Voting - A state can require voters to bring photo identification to the polls. Vote: 6-3.
-- Shareholders - Shareholders in publicly traded companies can't sue outsiders, such as bankers and accountants, for aiding the companies in securities fraud. Vote: 5-3.
-- Executions - The death penalty for child rape and other nonfatal crimes against individual victims is unconstitutional. Vote: 5-4. The court also said a state can execute prisoners by lethal injection, using a sequence of three drugs, with safeguards to prevent a substantial risk of severe pain. Vote: 7-2.
-- Contributions - The Millionaires' Amendment, which allowed opponents of wealthy, self-funded House candidates to exceed normal federal contribution limits, violates the free-speech rights of the self-funded candidates. Vote: 5-4.
-- Unions - A California law prohibiting companies from using state funds for anti-union activities violates federal labor law. Vote: 7-2.
-- Guantanamo - Prisoners held as enemy combatants at the Guantanamo Bay naval base have a right to go to federal court and challenge their confinement. Vote: 5-4.
-- Damages - Punitive damages against Exxon for the 1989 Exxon Valdez oil spill were excessive and must be reduced from $2.5 billion to $500 million, equal to the compensation awarded to 32,000 plaintiffs. Vote: 5-3.
-- Medical - Victims of injuries caused by federally approved medical devices can't sue for damages in state courts. Vote: 8-1.
-- Porn - A federal law making it a crime to promote or pander child pornography, real or computer-simulated, over the Internet is constitutional. Vote: 7-2.
© 2008 Hearst Communications Inc.