Supreme Court, long quiet, ends term with a growl

[June 28, 2008]  WASHINGTON (AP) -- For most of the term, Supreme Court justices showed remarkable restraint. They displayed broad agreement even in some volatile areas and refrained from angry dissents.

Then they decided the tough cases.

The court, in its three most important cases, declared a constitutional right to have guns at home for self-defense, granted some constitutional protections to foreign prisoners at Guantanamo Bay and outlawed the death penalty for people who rape children.

Not only did the familiar ideological divisions return in these cases and several others, but the justices took turns hurling charges of "judicial activism" and worse at each other.

Giving rights to the detainees "will almost certainly cause more Americans to be killed," Justice Antonin Scalia said in a scathing dissent he read from the bench.

No one threw that line back at Scalia in the guns case. But Justice John Paul Stevens, also summarizing his dissent in court, said of Scalia's majority opinion on gun rights that "adherence to a policy of judicial restraint by this court is far wiser than the bold decision it announced today."

Those were among nine 5-4 decisions handed down in the past two weeks. Until then, there had been only two all term, leading a former Supreme Court clerk, Robert Gordon, to remark that the era of good feelings at the court lasted about a month.

"Whatever talk there has been about judicial restraint doesn't seem to be guiding any identifiable group on the court," said Christopher Eisgruber, a constitutional law professor and Princeton University provost. "Liberal justices are willing to intervene on controversial issues when they present themselves and so are the conservatives."

Looking back on the 69 cases the justices decided in their term, former Texas Solicitor General Ted Cruz said the results confirm the central role of Justice Anthony Kennedy.

The court under Chief Justice John Roberts defies easy labels, although it became more conservative when Samuel Alito replaced Sandra Day O'Connor, Cruz said.

He called it an "exquisitely balanced court with Justice Kennedy remaining at the fulcrum of most, if not all, close decisions."

Kennedy wrote the majority opinions in the Guantanamo and rape cases. Kennedy said he discerned a "national consensus" against the death penalty for rapists, but both Republican John McCain and Democrat Barack Obama criticized the decision.

Kennedy also was in the majority in the gun case.

Conservative court watchers remain unhappy that Kennedy so often gets to say what the law is, even if he more often sides with the court's conservatives. "He believes it's his role to be the grand moral conscience of the nation," said Ed Whelan, president of the Ethics and Public Policy Center.

In all, the term had fewer of the controversial cases than in its previous term, where there were 24 5-4 splits.

Some potential clashes, though, fizzled. Challenges to Kentucky's lethal injection procedures and Indiana's law requiring voters to show photo identification were so thin that the justices easily rejected them.

The Kentucky case, which caused a seven-month halt in executions, was decided by a 7-2 vote. Stevens, although he voted against the death row inmates in the case, announced that after 32 years on the court he now believes the death penalty is unconstitutional.

The 88-year-old justice also wrote the main opinion in the voter ID case, upholding an Indiana law intended to combat voter fraud. Stevens said the law was permissible, even though the state could not show any instances of fraud that the law would prevent. He also said the challengers had scant evidence that voters were kept from casting ballots.

In business cases, the justices handed major wins to ExxonMobil Corp., lopping $2 billion off a punitive damages judgment resulting from the Exxon Valdez disaster, and limiting lawsuits related to securities fraud and against the makers of medical devices. Two cases that test limits on suits against pharmaceutical and tobacco companies will be argued in the fall.

One exception to the trend in the increasingly busy business docket was in the area of employment law, where the court reaffirmed employee rights to sue over alleged civil rights violations.

The current lineup of justices has been in place for roughly two-and-a-half years, since Alito took his seat.

They seem sure to have at least one more term together, but several justices could retire in the next few years. Stevens is the oldest and longest-serving among them, but four others will be at least 70 when the court reconvenes in October.

The demographics and the division could make the court an issue in the presidential campaign, though not as prominent as the war or economy. Both Democrats and Republicans point to the rulings they like least to showcase why they consider Supreme Court nominations among a president's most important decisions.

Off the bench, the term was notable for nationally televised interviews given by two justices, Clarence Thomas and Scalia, to promote new books. Thomas' memoir, "My Grandfather's Son,' was on bestseller lists last year, while Scalia co-wrote a book on lawyering.

Scalia even got to repeat, to viewers of CBS' "60 Minutes," his favorite piece of advice to Democrats still upset over the court's decision in Bush v. Gore in 2000. "Get over it. It's so old by now," Scalia said. (To which Jon Stewart pointed out on Comedy Central's "The Daily Show" that the winner in that old Supreme Court case remains in the White House.)

Even Justice David Souter - constitutionally averse to publicity - gave a speech that reporters were allowed to cover. Unlike Scalia and Thomas, however, Souter said nothing about the court or his personal life.

[Associated Press; By MARK SHERMAN]

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