Neither was it the Roberts court, at least not yet. Although Chief Justice John G. Roberts Jr. was in the majority in 90 percent of the decisions, more than any other member of the court, the more liberal justices won their share of the high-profile cases. The rulings granting the Guantánamo detainees access to federal court and rejecting capital punishment for those who rape children were issued over the dissent of the chief justice.
Nor was it a court in repose in the third year under Chief Justice Roberts. There was, in fact, less unanimity: just under 30 percent of the cases were decided without dissent, compared with just over 40 percent in the term before, and just over half in 2005-6. Over all, the court decided the fewest cases since the 1953-54 term.
In the case for which history may ultimately remember the term — the decision interpreting the Second Amendment to protect the right to own a gun for private use — the court’s conservative bloc won a stunning, if narrow, victory. As in the Guantánamo decision, the crucial vote in the Second Amendment case was cast by Justice Anthony M. Kennedy.
So if the Roberts court in its third term — one that left a complicated and, to some extent, blurred imprint — were to be summed up in a sound bite, it would be this: It was, once again, Justice Kennedy’s court.
Justice Kennedy, who marked his 20th anniversary on the court in February, did not compile quite the pitch-perfect voting record in this term that he did in the last, when he dissented only twice in 68 decisions and voted with the majority in all 24 of the cases decided by votes of 5 to 4. This term, Justice Kennedy dissented 10 times (compared with the chief justice’s seven), including in four of the 5-to-4 decisions.
And his vote was not always as essential. Two of the major decisions of the term, in which the court upheld Kentucky’s method of execution by lethal injection and Indiana’s law requiring voters to produce photo identification at the polls, were decided by more comfortable margins of 7 to 2 and 6 to 3.
In those decisions, the justices gave some evidence of trying to find a modicum of middle ground. In both the lethal injection case, Baze v. Rees, and the voter ID case, Crawford v. Marion County Election Board, the court found the evidence insufficient to declare the challenged practices unconstitutional, but left the door open, at least theoretically, for more fully substantiated lawsuits in the future. First principles, in other words, were not necessarily in play.
But there were no such signs of a search for middle ground in the term’s signature cases, the rulings on Guantánamo and guns. The justices spoke at each other across a wide gulf of instinct and perception. In each case, the dissenters accused those in the majority of indulging in rank judicial activism, of injecting the court into a realm where it did not belong.
Justice Kennedy wrote the majority opinion in the Guantánamo case, Boumediene v. Bush, joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. He silently joined Justice Antonin Scalia’s majority opinion in the gun case, District of Columbia v. Heller, along with Chief Justice Roberts and Justices Clarence Thomas and Samuel A. Alito Jr. Joined by the liberal justices, he wrote the 5-to-4 majority opinion in Kennedy v. Louisiana, the case that ruled out the death penalty for child rape, and in Dada v. Mukasey, a 5-to-4 decision that granted additional procedural rights to immigrants facing deportation.
There is no reason to suppose that Justice Kennedy’s role will be any less important in the near future. In striking down the District of Columbia’s ban on handguns, the court began writing a new chapter of constitutional law. The decision raised more questions than it answered, and it may take many more cases to flesh out how far the court intends to go to displace legislative choices for gun regulations.
Since Justice Kennedy did not write separately, there is no way of knowing whether he is in full agreement with Justice Scalia’s historically based analysis, or whether he would accept as reasonable some restrictions that lack the historical pedigree that language in Justice Scalia’s opinion appears to demand. For example, it is not clear whether Justice Scalia’s analysis would permit licensing and background checks of gun owners or, if it would not, whether Justice Kennedy would regard such measures as acceptable.
The term, which began on Oct. 1 and ended on June 26, included some unanticipated developments, like a string of victories for employees in workplace discrimination cases. In the previous term, a 5-to-4 decision that imposed tight time limits on workers’ ability to file pay discrimination cases drew a strong response, including an unsuccessful effort in Congress to overturn it by amending the statute the court had interpreted.
But the plan by liberal groups to use that decision, Ledbetter v. Goodyear Tire and Rubber Company, as a focus for generating concern about the future of the court was blunted by the rulings in five discrimination cases that favored employees in this term. In two cases, the court ruled by votes of 7 to 2 and 6 to 3 that federal statutes cover claims of retaliation against employees who complain to management about discrimination.
Further defying easy categorization, the term also included a number of favorable rulings for criminal defendants. Overturning a Louisiana death-row inmate’s conviction by a vote of 7 to 2, with only Justices Scalia and Thomas dissenting, the court gave added teeth to its rule against racial discrimination in jury selection. By wide margins, the court also narrowed the application of two federal money-laundering statutes and gave federal judges added discretion to show leniency in sentencing defendants for crimes involving crack cocaine.
“It’s not as if every case that’s visible turns on ideology,” Christopher L. Eisgruber, a Supreme Court scholar who is provost at Princeton University, said in an interview. He said many cases present questions about “other kinds of values, about process and precedent.” But he added that the term demonstrated that “in cases that really raise ideological questions, the court remains ideologically divided.”
Students of the court across the ideological spectrum made similar points. There was no “new ‘era of good feelings’ ” on the court, said Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute, which sponsored the successful lawsuit that led to the gun-control ruling.
But, Mr. Shapiro added, unanimity was not necessarily an end in itself. While “we would prefer the highest court in the land to speak with one voice in resolving the nation’s deepest disputes,” he said, “it is better for five justices to hold to their constitutional duty to say what the law is than to have nine produce a lukewarm opinion that either splits the baby or, worse, legislates from the bench.”
There was nothing lukewarm about the justices’ performances in the cases that mattered the most to them. The Guantánamo decision, the court’s third consecutive rebuff to the Bush administration’s efforts to keep the detainees outside the jurisdiction of the federal courts, prompted Justice Scalia’s warning that the ruling “will almost certainly cause more Americans to be killed.”
Justice Stevens and Justice Breyer, in dissenting opinions in the Second Amendment case on handguns, refrained from leveling such a charge against Justice Scalia’s majority opinion, although Justice Breyer described at length the landscape of urban violence that he said gave “compelling” support for the District of Columbia’s effort at gun control. Addressing process rather than outcome, Justice Stevens said that in bypassing “judicial restraint, the majority had thrown the Supreme Court into the ‘political thicket’ ” that Justice Felix Frankfurter, a conservative judicial hero, had warned against in a different context long ago.
Justice Stevens announced his dissent from the bench on Thursday morning, a signal of the depth of feeling on a dissenter’s part and a step none of the liberal justices had felt impelled to take earlier in the term. Justice Scalia’s announcement of the decision and the eight-point rebuttal Justice Stevens read in response offered the courtroom audience 23 minutes of drama before Chief Justice Roberts announced, with a smile that might have signified relief, that the term was over.
In past years, the final morning on the bench has been the occasion for the announcement of a justice’s retirement. No such announcement was expected in the midst of a presidential election year. It may be a different story next year. But as this term demonstrated, each Supreme Court term is in some respects a different story.