A rare week of harmony for justices
When John G. Roberts Jr. took over as chief justice at the Supreme Court four years ago, he sounded the same theme that President Obama did more recently.
The court was too divided and too polarized, he said, and he proposed a type of judicial bipartisanship. He said he would seek a broader agreement among the justices, even if it sometimes meant deciding cases more narrowly.
But the chief justice, like the president, soon found it was easier to talk about finding common ground than to reach agreement on a common decision. On issues such as abortion, affirmative action and Guantanamo, the justices remained sharply split 5 to 4.
Last week, however, saw the Roberts approach at work in two of this year’s most important cases. The normally fractured court spoke with near unanimity to preserve the historic Voting Rights Act and to declare unconstitutional the strip-search of a 13-year-old girl at school.
In both cases, the conservative and liberal justices joined in 8-1 decisions, even though they did not fully resolve the issues at stake.
The rulings came as something of a surprise. They followed a term in which the justices regularly split 5 to 4 along ideological lines. The conservatives prevailed in several close cases. They upheld a ban on the use of expletives on TV and radio broadcasts. They cleared the way for the use of illegally seized evidence in cases where police mistakenly search a car or arrest a motorist. A conservative majority also shielded top George W. Bush administration officials from being sued over the detention of hundreds of Muslim men after the Sept. 11 attacks.
The liberal bloc prevailed in several other close cases. The justices upheld the right of injured consumers to sue drug makers, rejecting a Bush administration policy that would have shielded the manufacturers. And the court took a stand against big-money donors who help elect state supreme court justices, ruling that an elected judge must step aside from deciding a case involving a big donor.
The court is also likely to split along ideological lines today when the justices rule in the case of the white firefighters who sued New Haven, Conn., alleging they were the victims of racial bias.
But last week, the justices managed to find near consensus on voting rights and school searches.
Instead of striking down as unconstitutional the section of the Voting Rights Act requiring the Justice Department’s preapproval of any electoral changes in Southern states, Roberts wrote an opinion simply allowing municipalities to “bail out” of the system if they have a good record. And justices who have voted in the past to give school officials wide latitude in searches agreed with the liberal wing that the strip-search of a 13-year-old suspected of hiding ibuprofen went too far. Only Justice Clarence Thomas stood apart from the majority.
So are the 8-1 decisions signs of a new harmony on the Supreme Court, or examples of smart, tactical moves by the chief justice?
Stanford University law professor Pamela Karlan says it is the latter. “He didn’t have the votes” to overturn the Voting Rights Act, she said, so Roberts opted for a decision that weakens the law.
It takes five votes to have a majority at the Supreme Court, and many lawyers questioned whether Justice Anthony M. Kennedy would supply a fifth vote to strike down the key part of the Voting Rights Act.
“Kennedy is sensitive to the racial dynamics. And they all knew the court would take a huge hit” had they struck down the law, Karlan said.
“That decision would be very hard to explain to the American public. The message would have been: ‘Conservative activists strike down voting rights,’ ” she said. “Besides, Roberts is young, and he’s in it for the long haul. He can afford to wait.”
Agreeing in part, Douglas Kmiec, a law professor at Pepperdine University, said Roberts forged a consensus by focusing on the narrow issue where the justices could agree.
The ruling reflects a “clever means of achieving consensus,” Kmiec said. Although the full court could not agree on striking down the Voting Rights Act, it could easily agree that municipalities with a clean record can be exempted, he said.
Georgetown University’s Richard Lazarus, a friend and Harvard classmate of Roberts, said the chief justice deserved some credit for reducing the sharp exchanges among justices. “For me, it’s more than the raw vote on the bottom line. It’s the tone of the opinions,” he said.
It’s also noteworthy what was not said, Lazarus added. None of the liberal justices wrote separate opinions to quarrel with Roberts’ discussion of the Voting Rights Act and its shortcomings. And none of the conservatives, except Thomas, wrote an opinion to question the notion of suing a school official for carrying out a drug search at school.
Others say Roberts, like Obama, deserves credit for trying to bridge the ideological divide, even when he does not succeed.
“Overall, the hope Roberts held out for a congenial, consensus court has not been realized. We have seen the same ideological splits,” said Michael Dorf, a law professor at Cornell University. “But this week was impressive. Even if he hasn’t lowered the temperature on the hottest issues, like abortion and affirmative action, he has had some effect in the less divisive areas.”
Today, however, the court is due to hand down its remaining decisions, including the case of the white firefighters from New Haven.
Another remaining case tests whether a politically charged movie can be regulated during an election year under the campaign finance laws. The conservatives and liberals have also been sharply divided over whether campaign laws violate the 1st Amendment.
Dorf said the firefighters case was almost certain to highlight the court’s divide on the issues of race, civil rights and equal opportunity. “I wouldn’t look for judicial harmony on Monday,” he said.