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Supreme Court Justice Stephen Breyer had a public confession to make in August. “I had a difficult year,” he told the American Bar Association at its annual meeting in San Francisco. “I was in dissent quite a lot, and I wasn’t happy.” Breyer quickly added he still has faith in the system, but it was a revealing moment for an exhausted liberal leader overwhelmed by the Court’s sharp right turn in 2007. Conservative majorities upheld the federal partial-birth abortion law, disapproved the use of race in public school class assignments, struck down a major part of the new campaign finance law, and restricted student free speech. “It is not often in the law that so few have so quickly changed so much,” Breyer lamented in an impassioned dissent in the cases involving Seattle and Louisville, Ky., public schools. The “few” Breyer probably had in mind could be boiled down to one: Justice Samuel Alito Jr., whose more predictable brand of conservatism replaced former Justice Sandra Day O’Connor’s pragmatism and equivocation. O’Connor’s absence also put Justice Anthony Kennedy at center stage as the Court’s swing vote, and in 2007 he swung right almost every time. Remarkably, Kennedy was in the majority in all 24 of the Court’s 5-4 rulings. Liberals who had forecast this trend when Alito was nominated were in a “told ya so” mode. “This Court has shown the same respect for precedent that a wrecking ball shows for a plate glass window,” says Ralph Neas of People for the American Way. But the game is not over. The Court unexpectedly took on another Guant�namo detainee case this term, and in January it examines the use of lethal injections for executions. Another surprise: At the Court’s final session of the year Dec. 10, criminal defendants won all three cases handed down.
Tony Mauro can be contacted at [email protected].

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