Roberts: 'The hard part is coming up'
Supreme Court shows signs of split as key issues await rulings
By Bill Mears
Saturday, June 3, 2006; Posted: 10:03 p.m. EDT (02:03 GMT)
WASHINGTON (CNN) -- The Supreme Court has shown a surprising degree of
unanimity and harmony since Chief Justice John Roberts took over last
But recent signs of tension and a rush to finish the court's work by
month's end could fray the justices' tenuous show of unity.
"I feel at this point like the fellow who jumped off the Empire State
Building, passed the 50th floor and said, 'So far, so good,'" Roberts
said recently to a group of lawyers. "But the hard part is coming up."
The "hard part" will include issuing rulings in about 31 cases dealing
with thorny issues such as terrorism, the death penalty, politics and
campaign spending, the environment, and domestic violence.
'No shrinking violets'
"There's no question, the court benefited [from] having some breathing
room early on, where everyone could get used to the new members of the
court, and they could get a real feel for the institution and a new
dynamic," said Thomas Goldstein, a Washington appellate attorney who
has argued many times before the justices.
"The question is whether that feeling is long for the world, and it
seems unlikely," Goldstein said. "There are no shrinking violets on
Among the big cases to be decided: a major test of presidential
authority over planned military tribunals of suspected foreign terrorists.
Those trials have yet to begin, and the high court has been asked to
lay out clear procedures to ensure the defendants are treated within
constitutional and international norms.
About 500 prisoners are being held at the U.S. naval station in
Guantanamo Bay, Cuba, but less than a dozen would face military review
of alleged war crimes.
"It's a question that ignites a social firestorm, and the overlay on
the war on terror, and a very strong assertion of executive
authority," Goldstein said. "That authority has a sympathetic ear in
some members of the court. So it's going to be a very dramatic ruling."
The remaining cases lack the potential fireworks that abortion,
homosexual rights, and affirmative action have carried. But two
issues, judging by arguments in the cases, could split the court.
Death and politics
One involves capital punishment and last-minute appeals. A Tennessee
inmate wants to press his contention that new DNA evidence will clear
him of murdering a young woman two decades ago.
The court will examine whether this "actual innocence" claim is strong
enough to win him a new trial so late in the long appeal process.
And, a Florida cop killer won an unusual reprieve in January from the
justices, minutes away from his scheduled execution.
Clarence Hill claims the lethal injection procedure can cause
excruciating pain, and he will soon learn whether that will earn him a
new chance to make his case.
As they have with many big cases this term, the justices elected to
rule on a narrow question, avoiding for now the more contentious issue
of whether lethal injection itself is cruel and unusual punishment.
Politics is the other major issue.
The justices must try and craft a rule dealing with the 2002 Texas
congressional map created by GOP state lawmakers.
The map led to the defeat of five Democratic incumbents, and made the
state's congressional delegation majority Republican.
Supporters call it a legitimate exercise of political power. Opponents
say several of the redrawn districts disfranchised Hispanic voters.
The justices could throw out all or part of the map, and politicians
around the country will be looking for any hints over just when such
redistricting plans cross the line into "excessive" partisanship.
A separate case asks whether Vermont may restrict how much statewide
candidates can spend in political campaigns. The high court has said
in the past federal candidates have a free-speech right to spend as
much as they please.
"These are going to be questions that inevitably call for big broad
rulings on divisive questions," Goldstein said. "And the rubber is
going to hit the road in what could certainly be a series of 5-4
Toughest cases in June
The justices typically wait until late in the term to decide their
toughest cases, since divided rulings take more time to write.
Add to that the learning curve experienced by the court's newest
members, Roberts and Justice Samuel Alito.
The 55-year-old Alito became the junior justice in late January,
following the retirement of Justice Sandra Day O'Connor.
While Roberts and Alito have been generally siding with fellow
conservatives Antonin Scalia and Clarence Thomas, there has not yet
been a seismic shift to the right for the court.
"This is not going to be a court of extremes," said Richard Lazarus,
director of Georgetown Law Center's Supreme Court Institute.
"When the justices can find some greater agreement, they will, but not
to the exclusion of many big 5-4 decisions," Lazarus said. "That has
happened recently and will happen in the future. It's still a pretty
divided place, and things remain unpredictable there."
The inevitable tensions have risen to the surface in recent weeks.
A ruling last Monday on free speech rights of government employees
produced a 5-4 split.
Writing in dissent, Justice John Paul Stevens used words like
"perverse," "misguided," and "quite wrong" to criticize the majority's
The new power broker, in the eyes of many, is Justice Anthony Kennedy,
who carries the swing vote.
Kennedy, 69, has already seen his influence blossom in several big
opinions he wrote this year.
He was the deciding vote against the Bush administration, which sought
to override Oregon's law allowing doctors to prescribe lethal doses of
medicine to help terminally ill patients end their lives.
In a year that saw Chief Justice William Rehnquist pass away after a
third of a century on the bench and O'Connor leave after a quarter
century as the first woman justice, there there has been little talk
of another pending retirement.
Court sources say the justices as a group are very pleased with
Roberts' leadership, and no retirement is expected.