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5-4 votes nudge Supreme Court to the right

  • Story Highlights
  • One-third of Supreme Court's decisions during past just-ended term decided 5-4
  • Court leaned to right with abortion, school diversity, environmental rulings
  • Samuel Alito, newest justice, emerged as key conservative
  • Swing vote Anthony Kennedy sided with conservatives
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By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- The Supreme Court began the term last October with renewed calls for unanimity from the chief justice, but it ended the session Thursday with the latest in a series of two dozen closely divided rulings.

Chief Justice John Roberts leads a divided court that has taken a turn to the right during its last term.

Whether it is abortion, race, the environment, political campaigns or the death penalty, the Roberts court is narrowly divided on the hot-button issues of the day. And, it seems to be shifting to the right.

"The lines between the two sides are more sharply drawn than ever before with conservatives prevailing in the great majority of really important and monumental decisions," said appellate attorney Thomas Goldstein, an observer of the court.

On Thursday, the high court showed its conservative bent by sharply restricting the use of race in public school placements. By a 5-4 margin, it ruled that school choice plans in Louisville, Kentucky, and Seattle, Washington, aimed at maintaining classroom diversity were unconstitutional

The numbers tell the story: Of the 72 cases decided since October, fully a third were decided by 5-4 votes. Compare that with the previous session, when only 15 percent of the cases in the previous term were decided by one-vote margins. And, while 45 percent of the cases in the previous term were unanimous, only a quarter were so easily resolved this term.

It was a good year for the conservative bloc led by Chief Justice John Roberts. In 13 of the 24 cases decided by a single vote (one case was 5-3), the majority included the votes of Roberts along with Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.

Six 5-4 votes could properly be labeled "liberal" victories, with the majority views favoring Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer and the ubiquitous Kennedy, who is considered the court's swing voter and power broker.

Five other 5-4 cases were divided in a mix of conservative and liberal justices.

"This has been the most overwhelmingly, consistently conservative term of the Supreme Court in recent memory," said Erwin Chemerinsky, a constitutional scholar at Duke University's law school.

"It's tempting to think of Justice Kennedy as the swing justice, but he really hasn't swung sides this term," Chemerinsky added. "With the rare exception, he's been with the conservative justices."

Kennedy has been on the winning side in all the 5-4 cases this term.

With the 70-year-old Californian's vote, conservatives upheld a federal ban on a later-term abortion procedure critics call "partial birth"; tossed out campaign finance restrictions on "issue ads" aired by unions and corporations; and limited the means for alleged victims of pay disparity to prove long-term gender discrimination.

The few bright sports for the liberal bloc -- again with Kennedy's vote -- included a ruling ordering the Bush administration to justify why it will not regulate carbon dioxide emissions from cars and factories; and ones dismissing in separate opinions the pending capital sentences for four Texas death row inmates.

While Kennedy has generally sided with conservatives, it is the newest justice, Alito, who has added momentum to the rightward tilt. Legal analysts point to Alito's consistently conservative stances in a variety of cases, particularly ones involving business law.

But much of the Alito Factor is a result of the retired justice he replaced: Sandra Day O'Connor. For 24 years the moderate conservative served as the court's swing justice.

"What a difference a single justice makes in the results and composition of the court," said Goodwin Liu, a law professor at the University of California-Berkeley.

Among those cheering the court's decision this year are big business and state prosecutors, who prevailed in a number of important criminal appeals. The Bush administration had a mixed record. It prevailed in the abortion cases but suffered setbacks in several environmental cases and campaign finance reform.

And the White House learned Friday the justices will for the fourth time hear an appeal over President Bush's "war on terror." Arguments this fall will focus on whether suspected enemy fighters captured and held overseas by the military deserve a chance to challenge their detention and possible prosecution before tribunals.

The justices have resisted efforts by the Justice Department to keep the courts out of the detainee issue. Two previous high court rulings favored the detainees, while another was put off on a technicality.

But Bush's two high court picks-- Roberts and Alito-- have in general been one of the few bright spots to rally conservatives in the past couple of years.

"I think the message of this term of the court is that elections matter," said Edward Lazarus, an appellate attorney and author of "Closed Chambers," an inside look at the high court.

The 2008 presidential election, to be specific.

""It's most likely that additional liberal members of the court will be the next ones to retire," Lazarus observed added. "So if there is a conservative president nominating additional conservatives, this court is going to move yet further to the right."

But, he added, "If it's a more liberal president that appoints and the Senate confirms, really you may be only maintaining the status quo because it's not clear which if any of the conservatives would be retiring in the term of the next president.

Bush's judicial legacy could last years, if not decades.

No Supreme Court retirements are expected this year, but the two oldest justices are also among the most liberal: 87-year-old old Stevens and 74-year-old Ginsburg. Sources close to them say they have no intention of stepping down, and some court watchers suggest they have good reason to ignore any such suggestions.

The three youngest justices are conservatives Roberts, Thomas and Alito, all in their 50s.

Legal experts say the liberal wing held together this term, speaking with one voice in the biggest cases, often in dissent.

"As the course of the term wore on Justices Ginsburg, Stevens, Breyer and Souter -- growing increasingly angry -- began reading their dissents from the bench," said Lazarus, "which is the Supreme Court equivalent of pounding on the table and yelling, 'I'm mad as hell, and I just wont take it anymore.'"

Roberts tried to put a happy face on the term, telling an audience of judges recently that the court remains a cordial and dynamic group, despite the ideological differences.

But it was left to Breyer to sum up succinctly the past nine months. Reading a passionate dissent on the school race cases Thursday, he offered a pointed, if indirect, reference to the power of the newest court members.

"It is not often that so few have so quickly changed so much," he said. E-mail to a friend E-mail to a friend

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