Rulings seal high court's shift to right

Supreme Court Justice Anthony Kennedy gestures during an interview Monday, Oct. 16, 2006, in San Francisco. (AP Photo/Ben Margot) Supreme Court Justice Anthony Kennedy gestures during an interview Monday, Oct. 16, 2006, in San Francisco. (AP Photo/Ben Margot) Photo: BEN MARGOT Photo: BEN MARGOT Image 1 of / 4 Caption Close Rulings seal high court's shift to right 1 / 4 Back to Gallery

As ideological shifts go, the U.S. Supreme Court's rightward tilt during the just-completed 2006-07 term was not a large swing. But it was decisive.

The replacement of moderately conservative Justice Sandra Day O'Connor by staunchly conservative Justice Samuel Alito did not send legal precedents toppling. Roe vs. Wade, which legalized abortion, remains in place, and so do recent liberal victories on gay rights, presidential power, the death penalty and the environment. A 2003 ruling allowing limited consideration of race in public college admissions was battered but survived.

But this was the term in which Chief Justice John Roberts, with crucial support from Alito, a fellow appointee of President Bush, took firm control of the court, its agenda and, with few exceptions, its legal doctrines.

Thursday's ruling that severely restricted race-conscious school integration programs was the last in a series of bare-majority decisions that steered the law in a conservative direction.

The most important abortion ruling in more than a decade upheld a federal ban on a rare midterm procedure and opened the door to further restrictions. A campaign finance ruling gutted congressional limits on broadcast ads funded by corporations and unions in the final weeks before an election, a law the court had upheld in 2003.

The justices narrowed free speech by students, barred taxpayer suits against Bush's promotion of federal funding for religious groups, tightened restrictions on punitive damages, and prohibited suits over sex and race discrimination in pay if they were filed more than 180 days after the wage disparity began.

In each case, the majority consisted of Roberts, Alito and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas. In most of the cases, O'Connor's record suggested she would have voted differently than Alito, changing the result.

There was one significant liberal victory, a 5-4 decision authorizing the government to regulate vehicle emissions of carbon dioxide and other greenhouse gases that contribute to global warming. Its effect has been muted by Bush's continued opposition to mandatory controls, and by federal regulators' slow pace in reviewing California's request to enforce its own emissions law.

"This was the year the conservatives finally got their court," said Erwin Chemerinsky, a liberal Duke University law professor. "Roberts and Alito have been everything conservatives could have hoped for and everything liberals could have feared."

Pepperdine University law Professor Douglas Kmiec agreed that he and fellow conservatives have been looking for a court like the current one.

The justices have "delivered to (Roberts) a working majority that has largely allowed his perspectives on the law to prevail," said Kmiec, who served with Roberts in the Justice Department under President Ronald Reagan.

Those perspectives, he said, include strict enforcement of rules limiting lawsuits and appeals, and a "reduced role of the court in the political life of the nation," with correspondingly greater leeway for the president and Congress.

The court's unbending view of legal rules was illustrated by the pay discrimination case -- precluding suits by numerous women who learn they're being paid less than men long after the 180-day deadline has expired -- and by the case of Keith Bowles, a convicted murderer from Ohio who appealed his conviction in federal court. After losing an initial ruling, his lawyer was told by the judge that he had 17 days to appeal. He filed a day early, only to learn that the deadline under federal law was actually 14 days.

A 5-4 ruling, written by Thomas, declared that federal courts had no power to review Bowles' appeal, prompting Justice David Souter to denounce the majority for "condoning this bait-and-switch."

Stanford law Professor Pamela Karlan offered a curt summary of the term Thursday at a Supreme Court panel discussion sponsored by the liberal American Constitution Society: "If this is the birth of a new constitutional era, all I can say is, what an ugly baby."

It is an era in which Kennedy is playing a pivotal role. The Sacramento native, the most moderate member of the conservative bloc, has taken over the role of the court's "swing" voter, formerly held by O'Connor. He played it to perfection in the past term: Of 24 cases decided by a single vote, one-third of the court's docket, Kennedy was in the majority every time.

But his record was more conservative than in other recent terms, when he voted with the moderate-to-liberal bloc in rulings on gay rights, the rights of foreign captives, the death penalty and water pollution. Apart from the global warming case, in which he joined a majority for federal regulation, he sided with Roberts and Alito in each major decision.

He was also the author of the 5-4 ruling April 18 that upheld the first federal ban on a specific abortion procedure, in which the fetus is partially removed intact.

Some of Kennedy's language -- references to Congress' "ethical and moral concerns," terminology such as "baby" and "infant life," and his assertion that the ban would discourage some women from having abortions that they might later regret -- was unprecedented and seemed to invite more measures to regulate or deter abortion.

"Kennedy hasn't been the swing justice this term," Chemerinsky said. "He hasn't swung back and forth. He's swung to one side."

Kmiec credited Roberts, who has said he wants the court to speak with greater consensus, with persuading Kennedy to join others' opinions and create well-defined majorities rather than writing separately, as he sometimes did in the past.

Kennedy's separate opinion in Thursday's integration case, declaring his own standard for considering race in admissions while leaving four justices on either side of him, was the only time this term that he distanced himself from a majority bloc. The result, Kmiec said, has been greater clarity.

But another practice this term has arguably made rulings murkier -- Roberts' treatment of past decisions with which he disagrees. Rather than overturning precedents, he narrows or reinterprets them, leaving them watered down but still on the books.

In Monday's campaign advertising case, for example, Roberts left in place the 2003 ruling upholding a ban on corporate-funded ads aimed at candidates just before an election, but construed it to apply only in rare cases.

On the same day, he reinterpreted a 1969 ruling on students' free speech to exclude statements that might promote drug use. Alito, in another ruling that day that Roberts joined, said a 1968 precedent allowing taxpayers to challenge federal funding of religion applied only to congressional and not presidential funding.

Scalia, who frequently advocates discarding precedents that he regards as wrong-headed, wrote an opinion in the political ad case accusing Roberts of "faux judicial restraint."

San Francisco attorney Vincent Chhabria, a former clerk to Supreme Court Justice Stephen Breyer, said the court is muddying the waters.

"Decisions that appear to contradict earlier decisions without overruling them only create more confusion," Chhabria said.

When the justices return to work in October, the most prominent cases will be the two they accepted for review on Friday, appeals by two foreign captives at Guantanamo Bay, Cuba, challenging their indefinite confinement.

The court has rebuffed Bush twice before on similar issues, most recently a year ago, when it ruled that military tribunals established for war-crimes trials at Guantanamo violated federal law and an international treaty. Congress then authorized the tribunals and limited the rights of prisoners classified by military panels as enemy combatants to get courts to review their status.

Those cases could be joined by a Bush administration appeal of a recent appellate court decision prohibiting the government from holding U.S. civilians as enemy combatants, and by two cases now in federal appeals courts challenging the administration's wiretapping of terror suspects without prior judicial approval.

Another case already on the docket will test judges' authority to reduce the differences in federal sentences for crack and powder cocaine.

With presidential authority shaping up as a major issue in the 2007-08 term, it's possible the Bush administration won't fare as well as it did this term. But the records of Roberts and Alito lead most commentators to agree that the court will be an important part of Bush's legacy, even if he makes no more appointments.

Cass Sunstein, a University of Chicago law professor and Supreme Court scholar, cited conservatives' dismay at the unexpectedly liberal leanings of Souter and moderate views of O'Connor after their appointments by Republican presidents.

"It seems fair to say," Sunstein said, "that President Bush would not feel the (same) kind of disappointment."

Court's major rulings

Major rulings of the U.S. Supreme Court in the 2006-07 term:

Integration: Overturned school integration plans in Seattle and Louisville, Ky., that used students' race as a factor in enrollment. Said integration remains a legitimate goal of school districts but the race of individual students can be considered only in extraordinary circumstances.

Abortion: Upheld the Partial-Birth Abortion Ban Act of 2003, which prohibited procedures in which the fetus is removed from the womb partially intact before being aborted.

Campaigns: Declared unconstitutional a portion of a 2002 campaign finance law that banned radio and television ads by corporations or unions that mentioned a candidate's name in the final weeks before a federal election. The court said the ban was valid only for ads that expressly advocated election or defeat of a candidate, and not for ads that discussed the candidate's position on an issue.

Emissions: Ruled that the federal government has authority over vehicle emissions that contribute to global warming, and must regulate them unless it has scientific evidence showing regulation is not justified.

Discrimination: Barred suits for pay discrimination based on sex or race unless the plaintiff discovered the disparity and sued within 180 days.

Students: Ruled that public school students could be punished for speech that a school administrator could reasonably interpret as promoting illegal drug use.