The Supreme Court begins its new term tomorrow as bitterly divided as it has ever been. There are three hardened camps: four very conservative justices, four liberals, and a moderate conservative, Justice Anthony Kennedy, hovering in between. The division into rigid blocs is unfortunate, because it makes the court seem more like a political body than a legal one. Justice Kennedy’s tendency to vote with the most conservative justices also means that there is a real danger the court will do serious damage to important freedoms this term.
At his confirmation hearings, Chief Justice John Roberts told the Senate he had “no agenda,” and famously compared his role to that of an umpire calling balls and strikes. He has also said he wants more consensus on the court, and fewer 5-to-4 decisions. Those were fine sound bites, but in reality Chief Justice Roberts quickly settled into a bloc with his fellow conservatives Samuel Alito, Antonin Scalia and Clarence Thomas. The controversial 5-to-4 decisions have kept coming.
It is striking how conservative the court is now. On race, it was for decades a proud force for racial integration. Last term, it ordered Seattle and Louisville, Ky., to stop their voluntary efforts to have children of different races attend school together. The court, once an important force for fairness in American society, now routinely finds dubious legal excuses to deny relief to criminal defendants, consumers and workers who have been mistreated.
The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?
The court’s 4-to-4 split means that, on virtually any controversial question, Justice Kennedy decides what American law is. Last term, he was in the majority in all 24 cases decided by 5-to-4 votes. His opposition to abortion rights and affirmative action has pushed the court further to the right on those issues.
The court’s hyperpartisan approach to the law is unhealthy. The reason the Bush v. Gore ruling was so damaging to the court’s reputation was that the justices appeared to be acting as partisans, tossing aside long-held views to reach the political result they wanted. Today, the justices seem just as political, wrapping their views on controversial social issues in neutral-sounding legal doctrines.
The case that will most test the court’s ability to rise above partisanship is a challenge to Indiana’s voter ID law. Indiana is one of a growing number of states that require voters to present a government-issued photo ID. Such laws have been billed as anti-vote-fraud measures, but there is little evidence of vote fraud at the polls. The Republicans who have pushed these laws are trying to make it hard for poor and minority voters, who are less likely than other groups to have drivers’ licenses — and more likely to vote Democratic — to cast ballots. The court has traditionally championed voting rights, but a conservative majority may boost Republican chances in 2008 by endorsing this disturbing barrier to voting.
On Wednesday, the court will hear arguments in another voting case of particular interest to New Yorkers, a challenge to the use of judicial conventions, undemocratic institutions dominated by party hacks, to select state court judges. Lower courts rightly held this highly undemocratic system to be unconstitutional.
The court has also agreed to hear a challenge to the use of lethal injection to carry out the death penalty. There is strong evidence that the injections, which use a “cocktail” of drugs to put prisoners to death, work erratically and are needlessly painful. Justice Kennedy, who is concerned about death penalty abuses, may provide the fifth vote to hold that these executions violate the Eighth Amendment ban on cruel and unusual punishment.
The court will again take up civil liberties post-9/11 in a case about whether detainees held at the naval base in Guantánamo Bay have the right to challenge their confinement through habeas corpus. In the Military Commissions Act, Congress tried to take that right away from the prisoners. The court should hold that the Constitution requires that the detainees be given their day in court.
If the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties. It could result in some terrible setbacks in these areas, however, if — as critics of the Roberts court have said — the court is calling balls and strikes but has moved the strike zone far to the right.