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WASHINGTON � The end of the first full term of the newly constituted Roberts Court marked the beginning of a historical, sharper shift to the right that may go unchallenged for the next decade or longer. Amid the flurry of major decisions in the final week and the fascinating statistics on voting patterns and related aspects of the term, it is the political reality that looms largest. Retirements from the court in the next five years or so probably will come from the left. If a Democrat is the next president, his or her appointments likely will do little to alter the court’s direction. An appointment by a Republican president, on the other hand, could eliminate the need for the only “wild card” in the conservative majority’s deck � Justice Anthony M. Kennedy � who is not much of a wild card in general. Kennedy now clearly and solidly occupies the pivotal swing seat on the court. But unlike Justice Sandra Day O’Connor, with whom he often shared that seat, Kennedy “swings” to the left in a narrower band of cases. “I think this [rightward movement] was quite predictable and not at all a return to the rule of law,” said former Reagan Justice Department official and high court litigator Michael Carvin, a partner in the Washington office of Jones Day. The court’s conservatives, he said, are in a “holding pattern” and will need one more vote to complete the sweep and a “return to the rule of law.” But a fellow high court litigator, Thomas Goldstein, head of the Supreme Court practice at Akin Gump Strauss Hauer & Feld, said, “This has been an extraordinarily successful term for conservatives and a very significant failure for the left on the court, and it portends continued failures for the next 20 years.” The June 2007 ending of the term, he said, may be viewed some day like the June 1961 term ending that marked the beginning of the Warren Court era. “It may be the birth of an entirely new jurisprudential era,” he said. “This is the birth of a new constitutional era,” said a more emphatic Pamela Karlan of Stanford Law School. “All I can say is: What an ugly baby.” The term generated an intriguing and important set of questions to be followed as the court led by Chief Justice John G. Roberts Jr. continues to come of age: First, to borrow a phrase from Justice Stephen G. Breyer’s dissent in the term’s school race cases, “And what has happened to stare decisis?” The court, often by 5-4 votes but sometimes with larger majorities, either “beat to a pulp,” to borrow from Justice Antonin Scalia’s concurrence in the term’s key religion decision, or overruled outright roughly 10 precedents. In a number of those decisions, such as the abortion, campaign finance and religion cases, the majority said it was not overruling precedents, but the decisions’ practical effect seemed to do so. “Across a variety of cases, it trimmed back or silently overruled precedent,” said Professor Goodwin Liu of the University of California, Berkeley School of Law. “One might say the court is always grappling with whether to extend precedent or limit it, but if you look across the entire run of cases, you see a fairly consistent pattern where respect for precedent goes by the wayside when it gets in the way of result.” Is the court practicing “faux” judicial modesty, in the words of Scalia? Second, along similar lines, is the refusal this term by Roberts and Justice Samuel A. Alito Jr. in key cases to move the law as far as Scalia and Clarence Thomas sometimes sought, the result of true jurisprudential differences, a concern about moving too far so early in their tenures or the pragmatic result of getting and keeping Kennedy’s vote? And finally, will a less heralded but significant theme of the term just ended � the court’s use of technical-procedural tools, such as standing, statutes of limitations and pleading requirements, to narrow access to the courts � become a major characteristic of the Roberts Court? Tacking right The court’s five-member conservative majority, led by a confident Roberts, moved the law to the right most notably in the areas of abortion, campaign finance, racial diversity, workplace discrimination and religion. The chief justice, just completing his second term, accomplished these shifts primarily with the help of the newest justice, Alito, who finished his first full term on the high court bench. Alito is generally more conservative, and more reliably so, than his predecessor, O’Connor. The chief’s confidence in and synergy with Alito was seen in their rate of voting alignment during the term � 84%, the highest frequency of agreement among the justices. And it also was reflected in his assignment of three major decisions to Alito � remarkable for so new a justice and notably better assignments overall than given to his more veteran conservative colleagues this term � Scalia and Thomas. Alito authored the 5-4 majority opinions in: Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), which, rejecting the long-standing policy of the Equal Employment Opportunity Commission, held that Title VII’s statute of limitations period (180 or 300 days) for filing a pay bias charge begins to run when “each allegedly discriminatory pay decision was made and communicated” to the employee and does not start over with each subsequent paycheck. Hein v. Freedom From Religion Foundation, 127 S. Ct. 2553 (2007), holding that an old precedent permitting limited taxpayer standing to challenge government expenditures in violation of the First Amendment’s establishment clause does not allow challenges to the Bush administration’s use of federal funds to support its Office of Faith Based and Community Initiatives program. National Association of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007), which held that the consultation requirement in the Endangered Species Act does not apply to the Environmental Protection Agency’s transfer of water permitting authority to states under the Clean Water Act. “Those are great decisions [to be assigned to] any justice, much less a new one,” said Deputy Solicitor General Gregory Garre during a recent forum at the Heritage Foundation. Significance of Alito’s vote Alito’s vote, most court watchers and scholars agree, determined the outcome of the term’s major abortion challenge. He was among the 5-4 majority, led by Kennedy, upholding the federal Partial Birth Abortion Ban Act of 2003, which prohibits the intact dilation and extraction abortion procedure. Gonzales v. Carhart, 127 S. Ct. 1610 (2007). O’Connor voted to strike a nearly identical state statute because, like the federal law, it contained no exception to preserve the health of the woman. And his vote, they add, was critical in narrowing � some would charge “gutting” � the ban in the Bipartisan Campaign Finance Reform Act on so-called “electioneering communications” funded by corporate and nonprofit general treasuries shortly before elections. FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007). O’Connor had voted to uphold that provision four years earlier. Roberts led the 5-4 majority this term. Experts differ on whether the Alito-for-O’Connor change affected the outcome in at least two other major cases. Some suggest, and Justice Ruth Bader Ginsburg strongly implied in her dissent, that Ledbetter would have had a different result. And others believe the outcome of the term’s two school race cases, in which a 5-4 majority struck down K-12 assignment plans using race as a factor in the school assignments, also would have been different because O’Connor authored the opinion upholding affirmative action in higher education admissions at the University of Michigan School of Law in 2003. “There’s no question the Alito replacement of O’Connor moves the court to the right,” said high court litigator Roy T. Englert Jr. of Washington’s Robbins, Russell, Englert, Orseck & Untereiner. “At the same time, there’s a tendency to take every 5-4 decision and say it would have been different had O’Connor been on the court.” But Akin Gump’s Goldstein noted that one measure of the Alito-O’Connor difference is a voting comparison with hard-line conservative Scalia. Alito voted “some 20%” more often with Scalia this term than O’Connor ever did. The term left unanswered how conservative the Roberts-Alito axis will be. The two justices did not sign onto opinions by Scalia and Thomas that would have pushed the law even further to the right in several areas. In the First Amendment area, they did not adopt Thomas’ theory in the “Bong Hits 4 Jesus” case that there is no protection of student speech and the seminal precedent for that protection should be overruled. Morse v. Frederick, 127 S. Ct. 2618 (2007). They did not sign the Scalia-Kennedy-Thomas concurrence that would have overruled outright the electioneering communications ban in the campaign finance act. Similarly, they did not join a Scalia and Thomas concurrence in Ayers v. Belmontes, 127 S. Ct. 469 (2006), in which Scalia reiterated his belief that limiting a jury’s discretion to consider all mitigating evidence does not violate the Eighth Amendment. And they did not join the Scalia-Thomas concurrence rejecting the court’s substantive due process underpinnings of its abortion jurisprudence. But in some of those same cases, they were in the majority opinion that appeared to � as Liu of U.C. Berkeley noted and Scalia sometimes charged � either silently overrule or trim back the underlying precedents. This approach does little to achieve Roberts’ professed goal of clarity in the law, according to Walter Dellinger of Duke Law School and partner in the Washington office of O’Melveny & Meyers. “It just creates incoherence in the law,” he said. “What’s a lower court to do when someone cites Flast [ v. Cohen] as the basis for standing [in establishment clause lawsuits]? They said in their [ Hein] opinion they were not overruling it, but they did. It just leads to more cynicism.” Swinging Kennedy? Besides the Alito factor, the dominant force in the conservative majority’s movement to the right was Kennedy. Much has been written and said about Kennedy’s remarkable term. The term’s statistics dramatically tell the story. The court was sharply divided in 24 decisions (23 with 5-4 votes, one with a 5-3 vote). Kennedy was in the majority in all 24 split decisions. In the entire term, he dissented only twice. The number of split decisions increased substantially from the number last term. Last term, 23% of the decisions had five-vote majorities. This term, 36% of the cases fell into that category. Of the term’s 24 split decisions, 19 broke along the usual ideological conservative-liberal lines. Kennedy was in the conservative camp in 13 of the 19 and swung to the left in six. Just how bad a defeat was suffered by the court’s liberal wing can be seen in its six 5-4 victories. Four of the six came in Texas death penalty cases that involved no major changes in the law but were primarily corrections of the application of precedents by the 5th U.S. Circuit Court of Appeals. The only major liberal-wing victory came in the court’s first brush with global warming. In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the 5-4 majority, led by Justice John Paul Stevens, held, first, that states had special standing to bring a suit challenging the Environmental Protection Agency’s refusal to regulate greenhouse gas emissions from new motor vehicles, and, second, that the Clean Air Act provided authority for that regulation by the EPA. Kennedy was not always willing to go as far as some of his conservative colleagues wanted. In the school race cases, although he voted to strike down the two district plans, he called “too simplistic” the chief justice’s statement that “The only way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” His concurrence stressed that school districts could address reintegration and racial isolation in less race-conscious ways, such as strategic siting of schools. Parents Involved in Community Schools v. Seattle School District No. 1; Meredith v. Jefferson County Board of Education, 127 S. Ct. 2738 (2007). But in the campaign finance decision, he signed on to a Scalia concurrence advocating outright overruling of the electioneering provision upheld by the court in 2003. Kennedy’s vote is now key to any future victories by the liberal wing. That will depend as much on the nature of the cases as on the abilities of the court’s master strategist, Stevens, and the justice most willing to think “outside the box,” Breyer, to persuade him to join them. “At end of the day, you just need to count to five,” said Jones Day’s Carvin, adding, “Kennedy is the court now.” This term presented some issues on which Kennedy was “solid,” he explained � solidly conservative, such as on campaign finance and abortion. “It was an opportunity to trim back the excesses of recent terms,” he said. “But if you get a different balance of cases, like Bowers [which upheld Georgia's anti-sodomy law and was overruled by Kennedy in Lawrence v. Texas], he could move in the other direction.” Uncivil justice system? While the court’s increasing conservatism on hot-button issues involving race, religion, abortion and elections is the headline theme of the term, a second theme with perhaps major implications for the civil justice system is the extraordinary success of the business community, which generally meant defeat for plaintiffs and consumers. Fully half of the court’s decisions in argued cases were business-related decisions, according to high court litigator Mark Levy, of counsel to the Washington office of Atlanta’s Kilpatrick Stockton. “The court has complete discretion to take the most important cases and they think the business cases represent a very important component of the court’s docket,” he said. “It’s in keeping with what the business community hoped for when Roberts became chief justice.” On the Rehnquist Court, he recalled, business cases traditionally represented about a third of its docket. And the term was “tremendously successful” for the business community, said Levy, adding that, while it is sometimes hard to qualify a win or loss because business may be on both sides, such as in patent cases, “I don’t think there was a significant business case that was lost this term.” The only exceptions, he suggested, might be the global-warming case and Environmental Defense v. Duke Energy, 127 S. Ct. 1423 (2007), involving modifications to old coal-fired plants under the Clean Air Act. Levy views those as primarily administrative law cases in which the court was reviewing and rejecting the performance of the executive branch. Unlike the 5-4 ideological splits in the hot-button cases, the court has ruled by generally broad margins in the business cases, said Robbins Russell’s Englert. “The court has inflicted a world of hurt on the class action bar,” he said. And it’s not just massive class actions, added Englert. It has shown a distrust of “lawyer-driven litigation” in decisions involving the False Claims Act ( Rockwell International v. U.S., 127 S. Ct. 1397 (2007)) and the Fair Credit Reporting Act ( Safeco Insurance Co. v. Burr, 127 S. Ct. 2201 (2007)), he said. “We’re seeing a lot of cases where the justices don’t see real injured people bringing real claims. They see lawyers trying to extort.” Levy believes the court has come to the conclusion that the civil justice system is out of balance. “It has become too burdensome, too expensive, too unpredictable and even erroneous in results in cases,” he said. Exhibit A of that trend, according to Levy and others, is the antitrust case Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). The court explicitly said that discovery had gotten out of control and its costs posed such a threat and burden that businesses often were forced to settle to avoid it. In Twombly, the court overruled a bedrock civil procedure precedent from 1957 and made it easier for cases to be dismissed at the outset. The court acted similarly in the securities area in Tellabs Inc. v. Makor Issues & Rights Ltd., 127 S. Ct. 2499 (2007), by raising the bar on pleading a claim under the Private Securities Litigation Reform Act. A test of this term’s trend, said Englert, will come next term in Stoneridge Investment Partners v. Scientific-Atlanta, No. 06-43, raising the question of the liability of those who are not the primary wrongdoers in securities cases, such as accountants or lawyers. Roberts and Breyer have recused themselves, so seven justices will decide. Patent parallel Levy sees parallels here with what the court has been doing in the patent area. The court believes the patent system is out of balance � too many weak or bad patents issued. In order to bring the system into balance, it corrected the threshold test for patentability � obviousness � which the Federal Circuit had made too narrow and rigid ( KSR v. Teleflex, 127 S. Ct. 1727 (2007)), and it made it easier for patent licensees to challenge the validity of a patent without first breaching its contract by bringing a declaratory judgment action ( MedImmune v. Genentech, 127 S. Ct. 764 (2007)). At the start of the term, Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007), a punitive damages case, appeared to be the most important general business case on the docket, noted Englert. But the court never reached the question of the excessiveness of a 100-to-1 punitives to compensatory damages award ratio. Instead, a 5-4 court ruled narrowly but importantly that juries may not factor harm to third parties into a punitive damages award. Roberts and Alito joined the majority, and did not join Thomas and others on the court who believe that the Constitution does not limit punitive awards. If the court had reached the ratio issue, Englert said, “I’m not sure there would have been five votes to overturn the award.” Roberts and Alito, noted Levy, “cut their teeth” as young lawyers in the Reagan Justice Department. That department viewed as of singular importance the use of technical defenses, such as standing, pleading, statutes of limitations, ripeness, justiciability and other tools at play in many of the term’s business and some of the term’s criminal cases. For example, in a criminal case parallel to Ledbetter, the Title VII case in which the court strictly applied the time limits for filing pay discrimination charges, a 5-4 court in Bowles v. Russell, 127 S. Ct. 2360 (2007), dismissed an appeal by a murder defendant who filed his notice of appeal two days late because of a calculation error by the trial judge. The majority, in an opinion by Thomas, not only said the filing deadline has always been strictly applied, but rejected a “unique circumstances” argument and overruled two precedents establishing that excuse. A dissenting Justice David H. Souter wrote, “It is intolerable for the judicial system to treat people this way.” “The Reagan lawyers knew those doctrines provide keys to [the] courthouse door, and by rigorous or stringent application of those doctrines the kinds of cases that can get into our system can be narrowed dramatically,” Levy said. Andrew Siegel of the University of South Carolina School of Law, in assessing the term on PrawfsBlawg, recently noted that the use of those tools to restrain errant courts and the reversal of Warren Court and some Burger Court precedents, particularly abortion and criminal procedure rulings, were twin goals of the Reagan administration. “History is long and winding and it is way too soon to chalk up a victory for the Reagan agenda, but it is hard to imagine the Roberts Court getting off to a better start in that direction,” he wrote. Crime and punishment The court had a full criminal docket this term but no blockbuster rulings. The justices continued to deal with fallout from the sentencing revolution that Apprendi v. New Jersey, 530 U.S. 466 (2000), launched seven years ago. Their earlier rulings prohibited judges from finding facts that enhance sentences above the statutory maximums and invalidated the Federal Sentencing Guidelines, only to resurrect them as advisory rather than mandatory. In Rita v. U.S., 127 S. Ct. 2456 (2007), the court held that appellate judges may treat sentences within the guidelines range as presumptively reasonable even though the guidelines are only advisory. In two cases next term, the justices will examine whether a judge must find “extraordinary circumstances” before imposing a below-guidelines sentence ( Gall v. U.S., No. 06-7949), and whether a sentencing judge may consider the crack/powder cocaine sentencing disparity in imposing a below-guidelines sentence ( Kimbrough v. U.S., No. 06-6330). In two Fourth Amendment cases, the court ruled that a passenger as well as the driver of a motor vehicle may challenge the legality of a police stop ( Brendlin v. California, 127 S. Ct. 2400 (2007)), and that police were justified in using deadly force to stop a car chase, force that ultimately caused the fleeing car to crash and paralyze the driver ( Scott v. Harris, 127 S. Ct. 1769 (2007)). Brendlin was a unanimous decision, noted Stanford’s Karlan, an interesting change for a court that has been hostile to the remedy of suppression of evidence for Fourth Amendment violations. And, in Harris, she added, the 8-1 court seemed “absolutely convinced” that a tiny video camera in the police car showed everything necessary to determine the reasonableness of the police car ramming the chased car. The court had announced a bright-line rule on the use of deadly force in Tennessee v. Garner, 471 U.S. 1 (1985) � no deadly force unless the suspect poses an immediate danger � she said, adding, “The court here seems to dial back a little on Tennessee, saying it’s not a bright-line rule.” With O’Connor gone, Kennedy becomes the critical vote in death penalty cases. This term, he joined the court’s liberal wing to reverse 5th Circuit decisions that seemingly ignored prior directions from the high court. He wrote Panetti v. Quarterman, 127 S. Ct. 2842 (2007), preventing the execution of a mentally ill inmate who irrationally believed he was to be executed for preaching the Bible. But Kennedy also wrote Uttecht v. Brown, 127 S. Ct. 2218 (2007), which makes it easier to exclude potential jurors who voice qualms about the death penalty even though they indicate they would follow the law. “When it comes to the structure of the death penalty and the rules that apply to excluding jurors, giving deference to trial judges, the court is much less willing to second-guess decisions imposing death sentences,” said Akin Gump’s Goldstein, adding, “so in the bigger cases, the conservatives prevail.” Looking ahead Goldstein, who closely tracks the docket’s ebb and flow, noted that the number of this term’s signed decisions is a modern low for the high court. The court has granted review in 25 cases for next term. It needs nine more to fill its argument calendar through December. Those 25 new grants may already include the biggest case of the new term: the combined Guant�namo Bay detainee cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. U.S., No. 06-1196, which challenge the elimination of federal courts’ habeas jurisdiction by the Military Commissions Act of 2006. In addition to the above-mentioned Stoneridge securities challenge and the two sentencing guidelines cases, the high court also will hear challenges involving, among other issues, employment discrimination ( Federal Express v. Holowecki, No. 06-1322); child pornography ( U.S. v. Williams, No. 06-694); arbitration ( Hall Street Associates v. Mattel Inc., No. 06-989); money laundering ( U.S. v. Santos, No. 06-1005); election ballots ( Washington State Grange v. Washington State Republican Party, No. 06-713); and international treaty obligations and the death penalty ( Medellin v. Texas, No. 06-984).

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