High court has entered a new era

WASHINGTON —  In what may signal a generational shift in power, new Chief Justice John G. Roberts Jr. led a confident conservative majority at the Supreme Court this year and moved the law to the right on abortion, religion, campaign funding and racial diversity.

Working with a 5-4 majority, Roberts prevailed in nearly all the major cases.

In just his second term, the 52-year-old chief justice wrested control from the 87-year-old John Paul Stevens, the remaining justice who served on the court during its liberal era. Roberts was able to prevail because of the key votes cast by Justice Samuel A. Alito Jr., 57, who last year succeeded centrist Justice Sandra Day O’Connor.

Roberts and Alito were appointed by President Bush.

And though Bush may fall short of creating a permanent GOP political majority in Washington, his selection of the two justices appears to have cemented his legacy of a long-term conservative majority on the high court.

Conservatives saw the rulings as historic and overdue.

“These are the most important decisions on the use of race since Brown vs. Board of Education,” said Sharon Browne, a lawyer for the Pacific Legal Foundation in Sacramento. “The high court has decided correctly that children must not be stereotyped by the color of their skin, but treated as individuals.”

Senate Minority Leader Mitch McConnell (R-Ky.) saw the campaign funding decision as “a victory for the 1st Amendment and political debate.”

Liberals, including some on the high court, sounded an alarm.

“It is not often in the law that so few have so quickly changed so much,” Justice Stephen G. Breyer, 68, said in the courtroom on the final day of the term.

Said Steven R. Shapiro, legal director for the American Civil Liberties Union: “The Roberts court has moved with lightning speed to roll back fundamental rights. Having begun with a promise to respect precedent and seek consensus, the Roberts court has so far done neither.”

Several Democratic presidential candidates have said the court is emerging as a major issue in the next election. The two most senior justices -- Stevens and Ruth Bader Ginsburg, 74 -- are its steadiest liberals. They will probably be replaced by the next president.

Roberts and Alito probably have at least two decades ahead of them, along with like-minded conservative Justice Clarence Thomas, 59.

“If a conservative Republican president has the opportunity to replace a mainstream justice with one more right-wing vote, this country would be in a lot of trouble,” former Sen. John Edwards of North Carolina, a Democratic candidate for president, said in a statement last week.

He continued: “We can’t take that chance.”

Conservative lawyers say the rulings this term were neither dramatic changes in the law nor sweeping in significance. In the school integration case, for example, the court struck down race-based limits on who can enroll at certain campuses, but education officials say these limits are rare today.

Pepperdine University law professor Douglas W. Kmiec said Roberts was showing maturity in running the court. He has “a better sense of what it takes to form a majority coalition and to keep it,” he said.

The final week of the term showed Roberts in full control.

On Thursday, he spoke firmly in the courtroom as he demanded an end to racial integration policies that call for “assigning students on a racial basis.” He invoked the famous 1954 Brown vs. Board of Education ruling, saying it established the principle that children must not be turned away “based on the color of their skin.”

Next to him, looking glum, sat Stevens. A generation older, white-haired and wearing a bow tie, Stevens had been at the high court for four years when in 1979 Roberts, just a year out of Harvard Law School, came to the capital as a law clerk.

Though Stevens was silent in the courtroom, he took on Roberts directly in a written dissent.

“There is a cruel irony in the chief justice’s reliance on our decision in Brown,” he said.

Roberts’ invocation of Brown’s principle “reminds me of Anatole France’s observation: ‘[T]he majestic equality of the la[w] forbid[s] rich and poor alike to sleep under bridges, to beg in the streets and to steal their bread.’ The chief justice fails to note it was only black schoolchildren” who were turned away from school because of their skin, Stevens wrote.

He continued: “In this and other ways, the chief justice rewrites the history of one of this court’s most important decisions.”

A similar sharp divide over history and how to read the law was on display in the campaign funding case.

On Monday, Roberts cited the principle of free speech in throwing out part of McCain-Feingold Act of 2002, which barred corporate- or union-funded preelection broadcast ads that mentioned a candidate’s name. Under the 1st Amendment, “we give the benefit of the doubt to speech, not censorship,” he said for the 5-4 majority.

The dissenters pointed out that in 1907, President Theodore Roosevelt persuaded Congress to pass the Tillman Act, which made it illegal for corporations to spend any money “in connection with any election to any political office.” A similar ban for unions was set in law after World War II.

Where Roberts and the conservatives saw themselves as protecting “core political speech” from heavy-handed government, the liberals saw activist judges who would give more clout to “the campaign war chests of business corporations.”

A Stevens-led liberal bloc prevailed in only one major case, a 5-4 ruling that rejected Bush’s policy of inaction on global warming.

The only sure guide to the outcome in all the close cases was to watch Justice Anthony M. Kennedy. In 24 cases this term, the court was split 5 to 4, and Kennedy was in the majority every time.

Kennedy, 70, said in an interview Friday that he was pleased to see Roberts become chief justice. He agreed with Roberts on some of the major issues before the court this year. For example, he consistently voted against “racial classifications” that treat individuals differently because of their race, and he believes the limits on campaign ads violate the free-speech principle.

But the Sacramento native also sometimes refers to himself as a “California Republican.” Unlike the court’s other conservatives, he has sided with environmentalists in key cases. Last year, he cast the key vote for a 5-4 majority that preserved federal protection for wetlands, and this spring he supplied the fifth vote for the liberal bloc in the global warming case.

Kennedy also wrote a separate opinion in the school integration case that set out something of a middle position. On the one hand, he said school officials had a duty to prevent “resegregation in schooling,” and he said Roberts was “too dismissive” of efforts to bring about integration.

At the same time, he voted to strike down policies adopted in Seattle and Louisville, Ky., because they set racial guidelines that limited which students could enroll in a school. He suggested school boards “adopt general policies” to encourage integration, but “without treating each student in different fashion solely on the basis” of race.

Kennedy also holds a controlling, middle position on abortion. He has said that abortions may not be banned by law but that some regulations and restrictions may be enacted. In April, he spoke for the 5-4 majority upholding the federal Partial Birth Abortion Ban Act of 2003.

The conservative bloc cannot count on Kennedy’s vote on issues of presidential power and right to habeas corpus, which loom again as key issues in the new case of Guantanamo detainees. Last year, Kennedy voted with a five-member liberal majority that struck down the Bush administration’s rules for military trials at Guantanamo Bay, Cuba, but the White House persuaded Congress to pass a law stripping these prisoners of their rights to appeal in federal court.

On Friday, the Supreme Court agreed to hear an appeal by Guantanamo detainees, which will be taken up in the fall.

david.savage@latimes.com

--

(BEGIN TEXT OF INFOBOX)

Who said it? A Supreme Court quiz

Match these nine quotes from opinions issued this year with the justices who said them:

Quotes

_____ 1. “Our precedents did not provide [the state judges] with ‘clearly established’ law, but instead a dog’s breakfast of divided, conflicting and ever-changing analyses.”

-- From a dissent in Abdul-Kabir vs. Quarterman, one of three rulings overturning Texas death sentences.

_____ 2. “It follows that everything airborne, from Frisbees to flatulence, qualifies as an air pollutant.” This reading of the statute defies common sense.”

-- From a dissent in Massachusetts vs. EPA, when the court ruled that greenhouse gases are air pollutants under the Clean Air Act.

_____ 3. “I find it hard to believe the court would support punishing Frederick for flying a ‘Wine Sips 4 Jesus’ banner.... Surely our national experience with alcohol should make us wary of dampening speech suggesting -- however inarticulately -- that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.”

-- From a dissent in Morse vs. Frederick, which rejected a free-speech claim by Joseph Frederick, a student who held up a “Bong Hits 4 Jesus” sign.

_____ 4. “Frederick asserts a constitutional right to utter at a school event what is either gibberish or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical.”

-- From a concurrence in Morse vs. Frederick saying students have no free-speech rights.

_____ 5. “When public school authorities regulate student speech, they act as agents of the state,” and must not have “a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed.”

-- From a concurrence in Morse vs. Frederick stressing his support for free-speech rights for students.

_____ 6. “It is intolerable for the judicial system to treat people this way.”

-- From a dissent in Bowles vs. Russell, which threw out a convict’s appeal for missing the filing deadline even though the judge gave his lawyer the wrong date.

_____ 7. “Today’s decision is alarming. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases.... And for the first time since Roe, the court blesses a prohibition with no exception safeguarding a woman’s health.”

-- From a dissent in Gonzales vs. Carhart, which upheld the Partial Birth Abortion Ban Act of 2003.

_____ 8. “Who exactly is white and who is non-white? ... Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.”

-- From a concurrence in Parents Involved in Community Schools vs. Seattle School District No. 1, which struck down the use of racial guidelines for assigning students to schools.

_____ 9. “This is not to deny that there is a cost in applying a ‘state-mandated racial label.’ But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system and 80 years of legal racial segregation.”

-- From a dissent in the schools case from Seattle.

Answers

--

1) E, Roberts; 2) F, Scalia; 3) H, Stevens; 4) I, Thomas; 5) A, Alito; 6) G, Souter; 7) C, Ginsburg; 8) D, Kennedy; 9) B, Breyer

A. Samuel A. Alito Jr.

B. Stephen G. Breyer

C. Ruth Bader Ginsburg

D. Anthony M. Kennedy

E. Chief Justice John Roberts

F. Antonin Scalia

G. David H. Souter

H. John Paul Stevens

I. Clarence Thomas

Graphics reporting by David G. Savage

--

(BEGIN TEXT OF INFOBOX)

Key decisions

Major rulings from the Supreme Court this year:

School integration

Officials may not use race to assign students to public schools, even to bring about diversity. A 5-4 ruling in Parents Involved in Community Schools vs. Seattle School District No. 1, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. in the majority.

Campaign finance

Corporations and unions have a free-speech right to run preelection broadcast ads that mention candidates’ names. A 5-4 ruling in FEC vs. Wisconsin Right to Life, with Roberts, Scalia, Kennedy, Thomas and Alito in the majority.

Abortion

A federal ban on “partial birth” abortions does not put an undue burden on women seeking to end a pregnancy. A 5-4 ruling in Gonzales vs. Carhart, with Roberts, Thomas, Kennedy, Scalia and Alito in the majority.

Global warming

Federal environmental regulators must consider limits on greenhouse gases under anti-pollution laws. A 5-4 ruling in Massachusetts vs. EPA, with Kennedy, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer in the majority.

Religion

Taxpayers may not sue the White House for allegedly promoting religion in violation of the 1st Amendment. A 5-4 ruling in Hein vs. Freedom From Religion Foundation, with Roberts, Scalia, Kennedy, Thomas and Alito in the majority.

Punitive damages

Juries may not punish companies for their products’ effects on thousands of others who are not part of the lawsuit. A 5-4 ruling in Philip Morris vs. Williams, with Roberts, Kennedy, Souter, Breyer and Alito in the majority.

Gender bias

A female employee who learns she had been paid less than men cannot sue her employer unless she can point to recent discrimination, because the law sets a 180-day deadline for claims. A 5-4 ruling in Ledbetter vs. Goodyear, with Roberts, Scalia, Kennedy, Thomas and Alito in the majority.

Student free speech

A student’s right to free speech does not extend to holding up a sign that appears to promote drug use. A 5-4 ruling in Morse vs. Frederick, with Roberts, Scalia, Kennedy, Thomas and Alito in the majority.

Retail prices

Manufacturers may set a minimum price for their products and forbid discounting by retailers. A 5-4 ruling in Leegin vs. PSKS, with Roberts, Scalia, Kennedy, Thomas and Alito in the majority.

Compiled by David G. Savage