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If this was the new look of harmony and consensus at the Supreme Court, it needs some work. There, on the final day of the Court’s term, June 29, was Justice John Paul Stevens, calmly defiant as he read from his landmark opinion in the Guant�namo Bay, Cuba, detainee case Hamdan v. Rumsfeld. The 73-page ruling against the Bush administration’s military commissions thoroughly trashed an appeals court ruling joined by the man sitting next to Stevens, Chief Justice John Roberts Jr., when he was on the U.S. Court of Appeals for the D.C. Circuit. Then came Justice Antonin Scalia, reading his dissent with a mournful tone of disgust, as if he were disowning a child. “I vigorously dissent,” he said, pointedly omitting the word “respectfully,” which justices usually recite in dissent, even if they don’t mean it. Justice Clarence Thomas was next, also in dissent, and he joked bitterly that the Court was more willing to heed the Army Corps of Engineers’ definition of navigable waters than it was to defer to the president of the United States in wartime. So much for unanimity at the Supreme Court. A term that began with hope and at least limited evidence that a new era of consensus had dissolved in its final weeks into a blizzard of quarrelsome writing that clarified little and robbed some decisions of their precedential force. In some of the Court’s most important rulings, justices tossed consensus aside and penned lengthy opinions, partial concurrences, and dissents that left readers crying “Uncle” or pleading, “Can’t they all get along?” Several factors, including the increased importance of Justice Anthony Kennedy as the Court’s swing vote, appear to explain the messy finale. And some think the June disarray may just be a preview of next term, when the Court will face even thornier cases on race-conscious public school policies and abortion. “There was a lot of avoidance of decision-making” this past term, said former Stanford Law School Dean Kathleen Sullivan at an American Constitution Society discussion on June 29. The Court’s major June decisions on Texas redistricting, Vermont campaign finance reform, and the scope of the Clean Water Act � in addition to Hamdan � were “all over the place,” Sullivan said. “We didn’t see that unanimity yet.” Expectations were high � falsely so, it appears in retrospect � that the Court under Roberts would be singing a different tune than it was under his predecessor, the late William Rehnquist, who seemed in recent years to have given up any notion of dislodging his colleagues’ entrenched positions. The early rulings of the first term of the Roberts Court often were, in fact, unanimous, and even after June’s spate of splintered opinions, overall statistics show the Court was less divided than in previous terms. Almost exactly half the cases of the Court were decided without dissent, up from 38 percent the previous term, according to statistics released by Georgetown University Law Center’s Supreme Court Institute. And the justices wrote fewer separate concurrences and dissents � 91 this term, compared with 125 the term before. Also fueling the expectations of harmony were reports from inside the Court of warm feelings toward Roberts. As a frequent former advocate before the Court, Roberts was a familiar figure, enthusiastically embraced by Stevens and the other justices, with the possible exception of David Souter, some say. And human nature, if nothing else, led the veteran justices to be on their best behavior for the benefit of newcomers Roberts and Justice Samuel Alito Jr. And then there was Roberts’ May 21 commencement speech at Georgetown University Law Center, in which he spoke of “the clear benefits of a greater degree of consensus on the Court.” Unanimity or near unanimity, he said, promotes “clarity and guidance” for the judges and lawyers who must live with the Court’s rulings. “The rule of law is strengthened when there is greater consensus and agreement about what the law is.” It turns out to have been a short-lived honeymoon, however. Viewed now, Roberts’ speech might have been less of a harbinger of the future and more a last-ditch plea aimed at his colleagues. By the time of his talk, sharp divisions in the big cases of the term � Guant�namo, Texas redistricting, Vermont campaign finance reform, and the Clean Water Act, among others � were surely evident inside the Court. But there may have still been time to close the gap on some issues at the margins. In parts of the Georgetown speech that got less attention at the time, Roberts spoke almost wistfully of past chief justices who battled expectations that they would bring harmony to the Court. He quoted Justice Felix Frankfurter’s assertion that “on the Supreme Court, every man is his own sovereign.” No single justice, Roberts suggested, can bring unanimity to the Court. While justices should not suppress their views, Roberts said they do have an obligation to weigh the “considered views of others.” One of the shared aims of all justices, he said, should be “working toward broad agreement.” That turned out to be a lot to ask, though no one seems to fault Roberts for failing to achieve that goal. Justices who have disagreed over campaign finance or political gerrymandering for years are not going to suddenly join hands in broad consensus. In Hamdan, for example, all the justices participating, except Alito, had already staked out positions on executive war powers in 2004 in a series of war-on-terror cases. Alito joined Scalia and Thomas in dissent. And because Roberts had ruled on Hamdan at the circuit level, he recused, leaving him in no position to twist arms or change minds. “The Court just doesn’t turn on a dime,’ says Vikram Amar, a professor at the University of California’s Hastings College of Law, who also thinks Supreme Court cases nowadays are more complex and more laden with multiple issues than they were 20 years ago, making agreement harder. Swing time The departure of Justice Sandra Day O’Connor may also have changed the dynamics among justices and produced less consensus on tough cases. Without O’Connor, a former Arizona state senator, the Court was left with no member who had stood for elective office. Though she was often criticized for her fretful concurrences, she sometimes pushed for practical compromise and accommodation. Without her, justices may have been more content to let differences persist. And that may have been the only way for the Court to get through a hectic, transitional term, says veteran Court advocate Carter Phillips of Sidley Austin. With Roberts joining the Court just days before its term began, and Alito coming on to the bench midterm, Phillips says ragged edges were to be expected. “They just punted on a lot of cases,” Phillips said at a National Chamber Litigation Center briefing. He was struck by the Court’s “creativity” in finding ways to say “the least amount humanly possible” to decide a case. One case in point was eBay v. MercExchange, in which Phillips argued. At first the ruling, which made injunctions against patent infringers less automatic than before, seemed like a major shift in patent law, but concurrences by Roberts and Kennedy made it less dramatic, many commentators agree. But the biggest factor in the demise of definitive decision-making in June may be Kennedy’s central importance in the wake of O’Connor’s departure. “In the old days there were two centrists you could appeal to,” says Jenner & Block’s Paul Smith. Now, Kennedy is the key. “It’s Justice Kennedy’s world, and you just live in it,” says Thomas Goldstein of Akin Gump Strauss Hauer & Feld. He adds that unlike O’Connor, when Kennedy casts a crucial vote, he tends to write � either the main opinion or a separate concurrence. Goldstein points to two cases in which Kennedy concurrences played a crucial role. In Rapanos v. United States, decided June 19, Scalia wrote the main opinion for four justices, articulating a narrow view of the scope of the Clean Water Act. Kennedy wrote a concurrence that agreed with Scalia’s bottom line but offered a broader interpretation of the law. The Kennedy concurrence may be viewed as the governing opinion, in the same way that Justice Lewis Powell Jr.’s solo concurrence ruled the day on affirmative action in the 1978 case Regents of the University of California v. Bakke. In Hudson v. Michigan, decided June 15, a Kennedy concurrence tempered another Scalia opinion � this one on police violations of the “knock and announce rule.” Kennedy presided over a fractured Court in another opinion in the final week of the term. He wrote the main opinion in LULAC v. Perry, upholding most of the Texas Republican middecade redistricting plan. But five other justices wrote separately to distance themselves from one part or another of his opinion. These and other cases have led some to think Kennedy is relishing his position at the fulcrum of the Court. Whereas O’Connor sought to “hammer out differences,” says Cambridge University professor David Garrow, “Kennedy is more attracted to the sound of his own voice.” Tony Mauro can be contacted at [email protected]

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