The court took mainly incremental steps in major cases concerning voting rights, employment discrimination, criminal procedure and campaign finance. But the chief justice’s fingerprints were on all of them, and he left clues that the court is only one decision away from fundamental change in many areas of the law.
Whether he will succeed depends on Justice Anthony M. Kennedy, the court’s swing vote. And there is reason to think that the chief justice has found a reliable ally when it counts.
“In the important cases, Kennedy ends up on the right,” said Thomas C. Goldstein, a student of the court and the founder of Scotusblog, which has compiled comprehensive statistics on the current term. The two justices agreed 86 percent of the time.
If Judge Sonia Sotomayor is confirmed by the Senate, she will succeed Justice David H. Souter, a liberal who spent almost two decades on the court. Her record on the federal appeals court in New York suggests that her views are largely in sync with those of Justice Souter, though there is some evidence that she will turn out to be more conservative in criminal cases.
The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era.
Chief Justice Roberts has certainly been planting seeds in this term’s decisions. If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.
The two newest justices, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush, agreed 92 percent of time, the highest rate for any pair of justices. But Justice Alito often wrote concurring opinions to underscore or try to extend conservative rulings, especially in criminal cases. He may well now be the court’s most conservative member.
“Alito is staking out some room to the right of the chief justice,” said Pamela Harris, the executive director of the Supreme Court Institute at Georgetown University Law Center, “and you would have thought there is no such room.”
Labels like “conservative” and “liberal” are, of course, imperfect. Political scientists often say judges are liberal to the extent they tend to vote in favor of, say, criminal defendants, environmental groups, people suing over injuries and plaintiffs claiming discrimination.
Decisions protecting individual rights may be said to be liberal, too, but many political liberals would reject that characterization where the First Amendment rights of rich campaign contributors or the Second Amendment rights of gun owners are at issue.
At the Supreme Court, though, voting alignments are so predictable that “liberal” and “conservative” are as much shorthand as principle. They refer to two groups, of four justices each, who generally vote the same way.
The court was remarkably polarized in the 74 signed decisions it issued this term, dividing 5-to-4 or 6-to-3 in almost half of them, up from roughly a third in the three previous years. The court reversed lower courts about three-quarters of the time, up from two-thirds in the last term.
Justice Kennedy was in the majority 92 percent of the time and in all but 5 of the 23 decisions in which the justices split 5-to-4. Those decisions were, moreover, often divided in the expected way: in 16, all four members of the court’s liberal wing were on one side and all four of its conservatives were on the other.
And in between them was Justice Kennedy, the most powerful jurist in America. He joined the liberals 5 times and the conservatives 11. That was a significant shift to the right: in the previous term, Justice Kennedy voted four times each with the liberals and the conservatives in cases divided along the traditional ideological fault line.
Justice Kennedy swung right in the cases that really mattered. The only major case in which he joined the court’s liberal wing — Justices Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer — was Caperton v. A.T. Massey Coal Company. The decision required the chief justice of the West Virginia Supreme Court to disqualify himself from a case involving a coal executive who had spent $3 million to elect him.
If there were surprises, they came from Justices Antonin Scalia and Clarence Thomas.
“For all the talk about Scalia and Thomas being the most conservative justices on the court, they are the justices most likely in play,” said Jeffrey L. Fisher, a law professor at Stanford who has argued several important criminal cases before the court.
Justices Scalia and Thomas are apt to follow what they understand to be the original meaning of the Constitution, even when the consequences might not align with their policy preferences. In Melendez-Diaz v. Massachusetts, for instance, Justices Scalia and Thomas joined three members of the court’s liberal wing to say that the Constitution’s confrontation clause requires crime laboratory analysts to appear at trial rather than submit written reports.
The current chief justice clerked for Chief Justice William H. Rehnquist, a famous strategist, and he seems to have learned some tactics from his old boss.
The most important case of the term, for instance, seemed likely to be Northwest Austin Municipal Utility District v. Holder, which concerned the constitutionality of a major provision of the Voting Rights Act of 1965. Judging from the questions at argument, Chief Justice Roberts appeared prepared to strike it down.
The law, reauthorized by Congress in 2006, used old data to decide which state and local governments had to obtain federal permission before making even minor changes to their voting procedures. Some officials, mostly in the South, bristled at what they said was the stigma, burden and federal intrusion that came with being covered by the law.
Instead of addressing that broad question, Chief Justice Roberts wrote a narrow decision for an eight-justice majority that allowed the Texas municipal water district that had brought the challenge to try to escape from coverage under the law while leaving the law itself intact.
In the process, though, he wrote that much has changed since the civil rights era and suggested that the law would not survive constitutional scrutiny. He all but invited a further challenge, and many voting rights specialists say that Congress must act soon to change the law if it is to survive another encounter with the Roberts court.
What accounted for the incrementalism? A likely explanation is that the chief justice did not yet have Justice Kennedy’s unqualified support and was biding his time until he did.
Something similar seemed to be going on in Herring v. United States, which cut back on but did not eliminate the exclusionary rule. The rule requires the suppression of some evidence obtained by police misconduct.
The majority opinion in Herring, by Chief Justice Roberts, said that an unlawful arrest based on incorrect information in a police database did not require suppression of drugs and a gun. The police error, the chief justice wrote, was “isolated negligence attenuated from the arrest.”
The balance of the opinion suggested that Chief Justice Roberts might be willing to excuse other kinds of police misconduct as well, and specialists in criminal law said they suspected the limiting principle was added to placate Justice Kennedy, who in a 2006 concurrence expressed support for the exclusionary rule even as he joined a majority opinion that harshly criticized it.
Even the court’s failure to decide a case could seem portentous.
In scheduling Citizens United v. Federal Election Commission for re-argument in September, Chief Justice Roberts appeared to be setting the stage for an overhaul of the law governing campaign spending by corporations.
The case involves a polemical documentary about Hillary Rodham Clinton that the F.E.C. said was an “electioneering communication” that could not be broadcast during the Democratic primaries this year because a corporation had financed it.
The Supreme Court could have ruled in favor of the group that made the film on a variety of narrow grounds. Instead, it asked for fresh briefing on the validity of laws limiting corporate campaign spending.
In two of the term’s most important cases, Justice Kennedy was the on-off switch in determining the meaning of the Constitution’s due process clause.
In District Attorney’s Office v. Osborne, Justice Kennedy was not prepared to find that due process requires allowing inmates to have access to DNA evidence that might prove their innocence, and so there is no such right in the Constitution.
In the Caperton decision, he said litigants’ due process rights required a state supreme court justice to step aside from a case involving an important supporter, and now that has become a constitutional principle.
The court’s liberals would have interpreted the due process clause to require both kinds of rights, the court’s conservatives neither. The Constitution, it turns out, means what Justice Kennedy says it means.