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Roberts: 'The hard part is coming up'

Supreme Court shows signs of split as key issues await rulings

By Bill Mears
Chief Justice John Roberts has led a harmonious Supreme Court, but divisive issues lie ahead.


Supreme Court
Guantanamo Bay Naval Base (Cuba)

WASHINGTON (CNN) -- The Supreme Court has shown a surprising degree of unanimity and harmony since Chief Justice John Roberts took over last fall.

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 that court."

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 controversial cases."

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 opinion.

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.

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