The number of unanimous opinions, that is to say without even a concurrence, where there is one opinion for the Court, that was one-quarter of the docket, the lowest number in a decade. So by another measure the Court was more fractured than it has been in the past. Not hugely so; the number of 5-4 cases picked up over the modern historical average, the number of unanimous cases kicked down. There were fewer pluralities, it is fair to say.

John Roberts had said in his confirmation hearings that one of his goals was to get clear decisions, and by and large, with the exception, actually, of the race cases, the Court managed to do that. There were plurality opinions where three conservative justices would say, “We would go this far,” and Justice [Antonin] Scalia and Justice [Clarence] Thomas would say, “We’d put our foot on the gas pedal; let’s go all the way.” You might get two different rationales for the same result, but you wouldn’t really call that a plurality. You knew what the rule was.

In terms of ideology, for the 24 5-4 decisions, the highest percentage by far, 13 of those cases, were decided by a conservative majority. That is to say, Justice [Anthony] Kennedy and everybody to the right of him: Roberts, Alito, Scalia, and Thomas. Six of the cases were decided by Justice Kennedy joining the more liberal members of the Court. That is the second-lowest number of wins for the liberal wing of the Court in the last 10 years, and so it fared pretty poorly. The biggest cases, with the exception of the global warming case [Massachusetts v. Environmental Protection Agency] really all went, to the extent they were decided on ideological lines, for the conservatives. So I think, ideologically, it is quite clear by the numbers that the Court took a genuine step to the right.

In terms of who is in charge, Justice Kennedy is in charge. Don’t have any doubts about this. If Justice Kennedy ever tells you you must do something, you must comply. In the 24 5-4 decisions, he was in the majority in all of them, every single one. In the 72 cases decided this term, he was in the majority in 70. Two times, I don’t know, he just felt like dissenting. You know, just to mix it up a little bit.

It is his world, and you just live in it. And that is a dominant, dominant theme. We were unable to identify in modern historical terms any sort of parallel. If you look to Justice O’Connor, for example, and we used to think of her as holding sway in the Court, she would be in the majority in roughly two-thirds of the 5-4 decisions over the last 10 years. Justice Kennedy, for his part, by the way, was in the majority one-half to two-thirds of the 5-4 decisions over the last 10 years. Suddenly, it is all of them.

There has not been a term since the mid-1960s that a justice dissented two or fewer times, and so that really gives you a sense that Justice Kennedy’s vote is more centrally important than any other justice in the history, the modern history, of the Supreme Court.

MAURO: How did the school race cases [Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education] fit into this picture?

GOLDSTEIN: Just to rehearse for you what happened, Seattle and Louisville had voluntary integration programs that were intended to address de facto, not de jure discrimination. That is, these were not currently attempts to respond to histories of purposeful segregation in the schools. Rather, these are non-neighborhood school programs so that you don’t go just to your local school, you can attend a different school throughout the district. The district had adopted a scheme that says, “Look, our basic goal here is to keep the racial proportions within the schools roughly the same within wide bands of the racial proportion in the district as a whole.”

Those programs had been challenged pretty widely as race-based government decision-making in violation of the 14th Amendment guarantee of equal protection of the laws. Three in a row had been challenged, one from Lynn, Mass., and these two, and they had all been upheld by the Courts of Appeals.

The Lynn, Mass., case came to the Supreme Court in Justice O’Connor’s last term, and the Supreme Court denied cert. Justice O’Connor leaves, Sam Alito arrives, and the Court grants cert in both of the cases with no circuit conflict. That is a fairly aggressive move for the Supreme Court.

Well, the Court decided the cases 4-1-4. This is the one time where we have a true plurality opinion. We have the four most conservative members of the Court and here, I think, we’ve got the illustration of how Justice Alito is a very solidly conservative vote. He and John Roberts had the highest proportion of agreement of any members of the Court, 89 percent in pure agreement, that is to say, not just in the result but in absolute, complete agreement, every word. They, along with Justice Scalia and Justice Thomas, essentially adopt a colorblind view of the Constitution, that the government should not be in what John Roberts regards as the ugly business of sorting people according to race.

The four most liberal members of the Court find that these programs are laudable as an attempt to increase integration and therefore are completely consistent with the principles of the 14th Amendment. Justice Kennedy ends up in the middle.

Now, I think the bottom line of that opinion is that there really isn’t that much difference between Kennedy and the majority, because I don’t know of many school districts, and I wrote a brief for the National Association of School Boards, that really can look at each third-grader and say, “You know, I’ve looked at Kenny’s essay, I’ve evaluated his socio-economic status” in the way that you do with college and law school admissions, right? It is really much more en masse. School districts don’t have the resources, and there isn’t the background information.

So I think this will present a substantial obstacle to school districts really doing much to account for race. I do think the race case, just to close, does illustrate the Court’s step to the right.

If you asked true conservatives, they recognize that the Court took a step to the right this term, but they have an expression of real disappointment or a view of enormous unfinished business that Justice Kennedy, like Justice O’Connor, still presents an obstacle to true doctrinal reform. I think more liberal members of the legal community are dismayed, are basically giving up, saying, “Maybe we should shut the Supreme Court down. Is it really all that necessary?”

There are many, many more questions still to come. The stare decisis [doctrine] in the constitutional area means relatively little these days in particular, and so it opens the door to all kinds of fascinating issues under the 14th Amendment and other constitutional provisions.

MAURO: So the fact that Kennedy in the race cases and perhaps Alito and Roberts in some of the other cases weren’t as willing to go all the way as the conservatives were, that doesn’t mitigate the point that the Court has still gone very far [to the right]?

GOLDSTEIN: I don’t think it does, for there are two different questions about how far you go compared to Scalia and Thomas, for example. And sometimes it’s Justice Alito and John Roberts saying, “Not yet.”

I think as a practical matter the conservatives in the Court are largely in the same place when it comes to the outcome of cases.

Doctrinally, I think that Justice Scalia and Justice Thomas have the more sweeping vision, the more aggressive vision. They have been in the wilderness, if you will, for a long time, and now that they perceive that they have the votes to correct what they view as serious missteps in the law, they would like to push ahead, but Justice Alito and John Roberts are much more modest in their ambitions in that respect.

MAURO: Now Eve Gartner, on the abortion cases in which you argued [Gonzales v. Carhart, Gonzales v. Planned Parenthood Federation of America], how do you see that decision fitting into this overall theme and how this Court is dealing with precedent?

EVE GARTNER: Just to give you a little background: The Court decided two of the three challenges that had been filed challenging a statute that Congress passed in 2003, the federal ban on so-called partial-birth abortion. All three of the cases that were filed were successful in all of the six lower courts in having the law enjoined and found unconstitutional. This was in large part because the statute that Congress passed is virtually identical to a statute that the Court had struck down only seven years ago in 2000 in a case called Stenberg v. Carhart.

In that case, which at this point we are calling Carhart I, the Court, by a 5-4 vote with Justice O’Connor at that time in the majority, found the Nebraska ban on so-called partial-birth abortion unconstitutional for two reasons. One, because the statute lacked a health exception [for the mother] and two, because the law was found to be so broad as to ban virtually any second-trimester, pre-viability abortion method.

The federal law that Congress passed in 2003 suffered from the identical constitutional flaws that the Court found in the Nebraska law, and, in fact, Congress passed the law very pointedly to create a vehicle for the Court to reconsider its Carhart I decision. So the abortion case, in addition to all the other ways that it presented very interesting constitutional issues for the new Roberts Court, it presented really a kind of test case to see how this Court was going to treat its own recent precedent . . .

The Court, as we know, came out the other way, saying, “Yes, Congress can ban so-called partial-birth abortions, even without a health exception.” So this shows us where the Court .�.�. that at least in this particular context, the Court completely disregarded its precedent.

A lot of the commentators have talked about how the Roberts Court is taking an incremental approach and they are not going as far as Justices Scalia and Thomas would necessarily like, but at least in this case, this wasn’t an incremental approach, even though the Court didn’t use the word “overturn.”

The other really interesting part of this ruling, and, from our perspective, [a] very problematic part, does relate to what are these state interests that can justify trumping a woman’s interest in protecting her own health. For the first time, the Court identifies two interests it has never used before to justify a restriction on a safe pre-viability abortion method. It says the ban can be justified because of the Court’s moral and ethical concerns about the use of this procedure.

2006 Term: Percent in Majority in 5-4 Decisions
Justice Percentage
Kennedy 100%
Alito 71%
Roberts 67%
Scalia 58%
Thomas 58%
Breyer 46%
Souter 38%
Ginsberg 33%
Stevens 29%
Source: Akin Gump Strauss Hauer & Feld



But this moral and ethical concern rationale flies in the face of Justice Kennedy’s own opinions in both Lawrence v. Texas and in Planned Parenthood v. Casey, the 1992 case where the Supreme Court reaffirmed Roe v. Wade as the law of the land despite the view at that point of many that the Court was on the cusp of overturning Roe.

In both cases, Justice Kennedy had written that the job of the Supreme Court is to define the liberty for all, not to state the moral code of a few. But now we have the moral code of five justices, the current five justices, trumping the woman’s interest in her own health. And there is no real limiting principle to this moral and ethical concern rationale, because if the moral and ethical concerns of these five justices that voted in the majority today can justify a ban on one method of abortion, well why can’t the moral and ethical concerns justify a ban on all abortions? There is just no limiting principle there whatsoever.

MAURO: Michael Dreeben, how do you see these trends playing out in the criminal cases of the term? I know you had one adversary who died while the case [Claiborne v. United States] was pending.

MICHAEL DREEBEN: And he still managed to win the case. So that sort of sums up the criminal term for me this year. I think we’ve heard some of the themes that Tom and Eve have articulated here for characterizing the term that we’ve just finished.

One, of course, is the role of Justice Kennedy and the arguable ascendancy of the conservative wing of the Court.

So if you ask me how those themes played out in the criminal docket, I would say that to an extent, the criminal docket was a microcosm of some of these larger issues, but it also is a good illustration that the Court is a very complicated institution. I couldn’t even begin to multiply the number of mathematical possibilities when you have nine different justices, each one applying his or her own philosophy, and not necessarily consistently, in an effort to produce opinions. So what I will illustrate in the criminal docket is that, yes, some of these themes were there, some of them were not, but the Court is actually a much more complicated and, in some cases, less clearly definable ideological institution than the hot-button social cases would lead somebody to believe.

Now, just by the numbers, I count 21 criminal or criminal-related cases on the Court’s docket out of the 72 total that it decided. I know that Tom’s blog counts them a little bit differently.

That’s a large percentage of the Court’s docket, and yet what is noteworthy about this term is that there were really no blockbuster cases in the criminal area.

There were some ripples and some interesting cases, but it shows the Court more at work in shaping an area of law, trying to make things work, playing out over time with its own internal disputes. In those cases, though, a very high percentage were 5-4 decisions�I count 11�so more than half of the Court’s criminal docket was decided by a 5-4 majority.

I really would say, in this area you can see liberal frustration boiling over, with the exception of the cases where Justice Kennedy decided that Texas needed to be reminded that the Supreme Court was in charge, as opposed to its own way of looking at the law.

The criminal defendants did not do too well in the 5-4 cases that the Court decided, and increasingly, the liberal justices were expressing some frustration. Justice [John Paul] Stevens announced his dissent from the bench in one case, involving jury selection in a capital case, which he felt unduly skewed capital juries toward death sentences, and in some of the other cases he also wrote very strong dissents. It was very unusual to see him writing that many dissents in one area.

But it is also, I think, noteworthy that defendants did actually win some pretty significant cases in the criminal area.

In a unanimous opinion [Brendlin v. California], the Court ruled that when police stop a car and you are a passenger in the car, the police have stopped you, too, for Fourth Amendment purposes. And this is a case where the laws of physics and common sense happen to align with the Constitution, at the expense of the State of California this time.

And all nine Justices agreed that they would feel stopped if a police officer stopped them and they were a passenger in the car, so that should be national law.

Now, what about access to the courts? This was an area in which the cases on the criminal docket got a lot of attention. Perhaps one of the sleeper cases of the term, the most unusual case to get a lot of attention [Bowles v. Russell], was the question of whether filing a notice of appeal late creates a jurisdictional bar to a court of appeals hearing an appeal. I mean, this is something that, you know, grips the nation regularly, and when I go out, people ask me about this case.

And I have to explain that it involves certain statutory requirements and when you have to file a notice of appeal, and by that point they are all asleep. But what got the public’s attention, I think, was that the case involved a situation where a judge made a mistake and he told the defendant that the defendant had 17 days to file his notice of appeal. He really only had 14 under federal statute.

The defendant, relying on that extra time and doing what all good lawyers do, which is to wait until the very last moment to do anything, filed it on the 16th day, and the Supreme Court, by a 5-4 decision, holds “No, you can’t rely on the judge’s word and let it trump what Congress said. You’re out of luck. No matter how meritorious your claims are, it is just too bad, so sad, move on.”

Justice [David] Souter wrote a dissent. He was very upset about the sort of bait and switch, as he saw it.

There were other cases in the criminal area, one [Lawrence v. Florida] involving a state capital defendant who was shut out of federal habeas corpus because he had taken the time to try to seek Supreme Court review from his state decision, and the Court said, “Sorry, you can’t do that if you want to preserve your rights under the statute of limitations for federal habeas.”

In the capital area as well, the Court denied hearings to several defendants, including several defendants out of the 9th Circuit, which is traditionally to the left considerably of the Supreme Court. But there were exceptions.

In the Panetti [v. Quarterman] case, the Court recognized a new right of capital defendants to challenge their competence to be executed, pretty much at the time that they discover that they are, in fact, going to be executed and have developed incentives to lose their competency. Justice Kennedy wrote for the majority. This was a 5-4 decision. He crossed over and joined the liberals, and he sort of maneuvered around a number of jurisdictional obstacles that would have kept Panetti out of court, according to the dissent, and he recognized this new right.

MAURO: Now Jeff Lamken, this term has been declared as a very good term for business. We’ve also heard over the years that a conservative Court doesn’t always mean a pro-business Court. But was this a term where business finally got both a pro-business and a pro-conservative Court?

JEFFREY LAMKEN: I think on the whole the results were good, but I don’t think you can line up, even in this case, pro-business with conservative. In terms of the business community, I would caution: On the one hand, avoid irrational exuberance. A lot of good cases for you this year, but you don’t know what is going to happen next year, because these cases very much tend to turn on their individual merits.

And in these cases, you also have to recall that very often there is business on both sides. If you happen to be a business that had a marginal patent, as in KSR [v. Teleflex], it wasn’t a very good year.

If you happen to be a business that was put out of business by a competitor that you claimed engaged in predatory bidding [Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.]�not a very good year.

If you happen to be a business that was litigating against the government, claiming that its administrative damages claims were stale [BP America Production Co. v. Burton], which is the case I lost�not a good year.

And there’s a case called Microsoft v. AT&T. For Microsoft, it was a good year, setting aside the Xbox at the moment. For AT&T, not so much.

2006 Term: Number of Dissenting Votes
Justice Number
Stevens 26
Ginsberg 20
Breyer 17
Souter 16
Thomas 16
Scalia 14
Alito 10
Roberts 8
Kennedy 2
Source: Akin Gump Strauss Hauer & Feld

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