New York Times

June 30, 2010

NEWS ANALYSIS; Roberts Court Comes of Age

By ADAM LIPTAK
WASHINGTON -- Last June, the Supreme Court term ended with restraint and a cliffhanger, as the court left the Voting Rights Act intact and ordered re-argument in Citizens United, the big campaign finance case.

A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.

That will only intensify with the retirement of Justice John Paul Stevens, a 35-year veteran of the court and the leader of its liberal wing, and his likely replacement by Elena Kagan, the solicitor general, whose confirmation hearings in the Senate are under way this week.

Chief Justice Roberts, who joined the court five years ago, took control of it this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues, including some liberals, on an array of other issues.

He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court's swing vote.

''More than in any other year since he became chief justice, this has truly become the Roberts court,'' said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.

The centerpiece of the last term was, of course, the 5-to-4 decision in Citizens United, allowing unlimited corporate spending in elections. The ruling generated waves of criticism, including comments from President Obama at the State of the Union address in January. It was the most controversial decision since the Rehnquist court handed the presidency to Mr. Bush a decade ago in Bush v. Gore, and it was easily the most debated of the Roberts court era so far.

The outcry did not chasten the court.

''I don't think it made the least bit of difference to the five justices in the majority,'' said Paul D. Clement, who also served as solicitor general in the second Bush administration and is now with King & Spalding.

The Citizens United decision contained not a trace of minimalism, and it showed great solicitude to the interests of corporations.

''They're fearless,'' Lisa S. Blatt, who served in the solicitor general's office for 13 years before joining Arnold & Porter last year, said of the justices in the majority. ''This is a business court. Now it's the era of the corporation and the interests of business.''

That trend, lawyers and legal scholars said, may well threaten recent legislation overhauling financial regulations and the health care system when challenges to them reach the court.

Some of the issues that have most engaged the court in recent years were missing this term, which included only one decision concerning national security and none about abortion or about prisoners held at Guantánamo Bay, Cuba.

The court continued its push to broaden Second Amendment rights, ruling on Monday that the amendment's protections apply to state and local gun control laws as well as to federal law.

And the justices further limited the rights of criminal defendants. Last term, the court narrowed earlier decisions barring the use of evidence obtained through police misconduct.

This term, the court was focused on the Miranda rule, which requires the police to warn suspects in custody of their rights before interrogating them. In three decisions this term, the court allowed the police to vary the language of the warning, insist that suspects speak in order to protect their right to remain silent and resume questioning after suspects have invoked their rights.

''The court continues its march to restrict exclusionary rules,'' said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. ''The court is refusing to exclude what the court thinks is reliable evidence in criminal cases. None of the conservatives are unpredictable in any of these cases. They're leading the retreat.''