High court remains politically divided

WASHINGTON -- One year ago, Chief Justice John Roberts laid out a vision of moving the Supreme Court away from its recent history of politically divided 5-to-4 rulings, saying he hoped to use an approach to deciding cases that would achieve "broader agreement among the justices."

"The rule of law is strengthened when there is greater coherence and agreement about what the law is," Roberts said, telling graduates and parents at Georgetown University that the court must try harder to achieve unanimity.

But as the Supreme Court completes its first full term with Roberts and President Bush's other nominee, Justice Samuel Alito , consensus has failed to materialize. Instead, the court's term was defined by a series of 5-to-4 decisions between sharply divided liberal and conservative factions.

The court handed down 24 such rulings in its 72 cases -- the highest percentage of one-vote decisions in at least a decade, according to data compiled by Tom Goldstein , founder of the court-watching website, SCOTUS Blog.

The close decisions encompassed nearly every major issue to come before the court, including abortion rights, the use of race in school integration plans, gender discrimination, campaign finance rules, free speech, and global warming.

Roberts's faction prevailed in all but one of the major cases decided by one vote. Fulfilling predictions that the arrival of Roberts and Alito would shift the court to the right, the just-completed term gave the conservative legal movement its strongest taste of success in its multidecade project to reshape the federal judiciary.

Curt Levey of the Committee for Justice, which promotes the confirmation of conservative judges, called the term "a victory for moving the court away from its liberal position of the past several decades." He also said the frequent 5-to-4 outcomes were not surprising, given the make up of the court.

"I think where we have had these hot-button issues, where there is just a huge gulf between what the four liberals want and what the rest of the court wants, it is hard to imagine . . . that there would be consensus," he said.

Still, Laurence Tribe , a liberal-leaning law professor at Harvard University, warned that the recent history of 5-to-4 holdings on major cases, along with the court's change in direction on several high-profile issues, could erode respect for the court -- a respect which is based on the idea that its decisions are based on law, not politics.

"Any member of the general public who pays the slightest attention to what the court is doing has to regard it now as almost entirely a political body," Tribe said. "The fact that many people are perceiving that new faces means new law really undercuts . . . the court's role as an institution."

The court's term was marked by the views of Justice Anthony M. Kennedy, who often provided the deciding vote between the factions of four liberal and four conservative justices. Kennedy alone was in the majority in every one of the 5-to-4 decisions.

A nominee of President Reagan, Kennedy sided with the liberals in just one major case, Massachusetts v. E.P.A., which allowed states to sue the federal government for failing to regulate gases that contribute to global warming. Otherwise, Kennedy sided with conservatives in the most important 5-to-4 decisions:

In Hain v. Freedom from Religion Foundation, for example, Kennedy and the conservative bloc ruled that taxpayers could not challenge Bush's faith-based initiatives program, which helps religious groups win federal grants.

In Ledbetter v. Goodyear Tire, the court restricted the ability of women to sue their employers over past gender discrimination, even if it has an impact on their current salary.

In the so-called "Bong Hits 4 Jesus" case, the court ruled that public schools may punish a student who displays a sign at school events that conflicts with the school's anti drug policies.

And in Gonzales v. Carhart, the court upheld the federal Partial-Birth Abortion Ban Act of 2003. The ruling was the first time the court upheld an abortion restriction with no exception for the health of the woman.

The case represented a quick reversal for the court, which had struck down a similar state law in 2000. The abortion case was one of several in which the court made an abrupt shift from recent holdings, based on the views of its newest justices.

In Federal Election Commission v. Wisconsin Right to Life, for example, the court held that the government couldn't restrict corporations and unions from running "issue ads" that implicitly criticize candidates close to an election. In 2002, the court had upheld such restrictions on corporations and unions.

And in a set of cases involving school systems in Seattle and Louisville, the court ruled that local governments may not classify children by race to achieve diversity when assigning students to public schools. The ruling reversed course from a 2003 case in which the court had upheld a race-conscious admissions policy at a law school.

The 5-to-4 decision in the race case provoked an unusually bitter dissent from the court's senior justice, John Paul Stevens, who suggested that the shifting stance on race was entirely because of political changes on the court. And Justice Stephen G. Breyer quipped from the bench that "It is not often in the law that so few have so quickly changed so much."

Dennis Hutchinson, a University of Chicago law professor and Supreme Court historian, said that the frequent 5-to-4 votes of the current era stand in marked contrast to previous periods, when the court more often managed to reach unanimous decisions. In some eras, justices consciously tried to maintain consensus to protect the institution's reputation, especially in politically sensitive cases such as Brown v. Board of Education, which outlawed school segregation.

When new justices have arrived in the past, he added, many have waited a few years before seeking to overturn precedents. But this term, he said, the court moved forward with changes at a "breathtaking rate."