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Roberts-led Supreme Court marks 5 years

By Bill Mears, CNN Supreme Court Producer
Chief Justice John Roberts has led the Supreme Court for five years.
Chief Justice John Roberts has led the Supreme Court for five years.
STORY HIGHLIGHTS
  • The Supreme Court's new term begins Monday
  • The addition of Kagan may push a more partisan divide in the court
  • Court-watchers believe Breyer will now assume a leadership role, writing more important cases

Washington (CNN) -- The Supreme Court under Chief Justice John Roberts is marking its fifth year under his leadership, with a high-powered bench that has been invigorated with four new members in that time to make for a shaky, divided conservative majority.

The new members and a host of big issues on the judicial horizon have made the Supreme Court more relevant and more controversial than ever in this politically-charged social environment.

The nine-member bench officially begins its new term Monday, with a number of hot-button cases awaiting them: anti-gay protests, immigration reform, violent video games, and tax credits for religious schools. Political and legal scholars are at odds over the direction the court will take.

"It's too early to tell what the Supreme Court is going to be like," said Thomas Goldstein, founder of scotusblog.com, who has argued nearly two dozen cases before the justices. "We know we have a lot more youth, we have people who have been appointed in their 50s, and people who are in their 70s and 80s are leaving the Supreme Court. We have a new generation, and there are a whole set of new ideas from both the right and the left. What we don't know yet is exactly how it will all shake out. That's probably three or four years away from us knowing."

What is clear is that with the arrival of new Justice Elena Kagan, a clear, party-based partisan split could quickly settle in, with five Republican appointees now poised to dominate the four Democratic appointees on a range of issues. The recently retired John Paul Stevens and David Souter -- named to the bench by Republican presidents -- more often than not defied party labels to side with their liberal colleagues.

The nine current members can be expected to more "reliably" vote consistent with the party of the president who chose them. And when it comes to the direction of the federal courts, the old adage holds true: elections matter.

With all the changes in their ranks, several justices have publicly and privately stated they have found it a bit disorienting.

Behind the scenes, a number of story lines will keep this diverse court in the headlines:

-- The new member, Kagan: Will she stay within the loose liberal fold? And is another court retirement imminent?

-- There's Roberts, who jumped into the political fray over Obama's direct criticism of a high court ruling, with the justices in the audience at January's State of the Union address. Will tensions between the branches continue to grow?

-- Expect Justice Anthony Kennedy's clout to get ever more expansive, with the so-called "swing justice's" vote on big issues often the decisive one.

-- And is Justice Stephen Breyer poised to take over as the de facto leader of the Court's liberal wing, with the retirement of Stevens?

Big cases await Supreme Court's 2010-2011 term

Kagan's arrival has generated the most interest, since it is the first time three women will serve on the court at the same time.

"Her addition on the court is unlikely to cause a meaningful short-term change in outcome on cases that tend to divide the court along 'political' lines, given that she replaces a reliable liberal vote on the left," said Eric Jaffe, a Washington appellate attorney and conservative legal scholar.

Sources close to her say she has made a smooth transition thus far in her nearly two months on the job, mostly working quietly in her new chambers on pending appeals. She will be formally welcomed to the bench Friday, but has already been warmly embraced in private by her colleagues to this exclusive "club."

The 50-year-old Kagan has no judicial experience, and those sources say she has experienced a measure of anticipation and nervousness over how quickly she will fit in with the court's unique customs and rhythms. Her learning curb will be further slowed since she is recusing herself from at least 25 cases already on the docket. That means she will not sit in oral arguments or vote on the outcome. As the former solicitor general in the Justice Department, it was her job to supervise all pending appeals at the high court, and she has withdrawn from cases where she was involved or which might be considered a conflict of interest.

But make no mistake, it's Roberts' court. His confidence has grown considerably after five years on the job, and with four fellow Republican appointees, he is poised to keep the court tilting to the right for the near future.

That has alarmed Democrats in the other two branches, who, with their liberal allies, are convinced the Roberts Court is taking marching orders from big business and social conservatives. They point to several academic studies that subjectively conclude the current court is the most conservative in history.

The president himself pointedly attacked a January ruling that opened up federal election spending to a wider array of businesses, unions, and advocacy groups. His comments came in the annual State of the Union address, as Roberts and five of his colleagues sat in the audience. Roberts said a few weeks later he found such face-to-face criticism and partisanship "very troubling."

Democratic senators later used the Kagan nomination as a forum to attack the high court on a range of controversial issues.

"It looked like for a while the Obama administration and Congress was going to really go at the court hard after the big campaign finance ruling that the president brought up at the State of the Union," said Goldstein. "But that seems to have died down because the country is so focused on economic issues. There is a big debate that could be had about whether the court is too corporate or less sympathetic to the individual, but the truth is, it's mixed. Big businesses can win some and can lose some, so it's not fair to say that the Supreme Court is in the pockets of the business community."

Stevens' retirement has created an unusual dynamic. An unwritten court rule gives the senior justice in the majority the all-important duty of assigning the opinion writing. The court speaks through its rulings, and it is from where its authority and power derive. Normally that task falls to the chief justice, but when liberals prevail, that opinion-assigning task fell for the past 17 years to Stevens.

Many court watchers expect Breyer to now assume a leadership role within the liberal bloc. He is known for trying to reach across the aisle, seeking compromise. He could wind up writing many more important cases.

But if moderate-conservative Kennedy decides to side with his more progressive colleagues -- as he has done on several key death penalty, terrorism, race, and gay rights cases -- his seniority would allow him to inherit the power to assign the biggest cases to himself. His more moderate views could therefore temper the impact of any ruling-- whether he sides with conservatives or liberals.

The idea of a Republican appointee with the ability to shut out liberals from writing and strongly influencing those big cases, even when they are in the majority, does not sit well with many on the left. But conservatives on the bench like Roberts may well realize the benefits of working harder to keep Kennedy in the conservative camp.

That makes his "swing justice" position that much more powerful. Despite changes on the court, Kennedy's sway will be felt until he too decides to step down.

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