Supreme Court swing vote tends toward confusion

Freedom Newspapers

The case that will be remembered from the most recent term of the U.S. Supreme Court is Hamdan v. Rumsfeld, in which the court told President Bush that he couldn’t simply create military commissions — especially commissions authorized to deliberate and render decisions with the defendant not even present — without authorization from Congress and without taking into account valid laws and treaty obligations.

It was an important exercise in judicial independence, reining in an executive branch intoxicated with its supposed “plenary” powers during wartime and reaffirming the wisdom of the founders in creating three co-equal branches of government assigned to watch over one another jealously.

How significant this case is when it comes to assessing the first Supreme Court term under its new chief justice, John Roberts, is another question. The chief did not participate in Hamdan, having ruled on it a year earlier as an appeals court judge. Had he participated and ruled as he had before, he would have been in the minority.

It’s a little early, then, to see this as the Roberts Court.

The chief justice has imposed a quiet style on the court. He is always in charge and prepared, graceful with an occasionally biting wit during oral arguments. Early on in this session he managed several 9-0 decisions, reflecting his stated preference for a court that speaks decisively even if that means ruling narrowly on some controversial issues to gain unanimity or something close.

Toward the end of the session, as more controversial cases were decided, the tendency toward consensus fell apart and, Justice Anthony Kennedy, generally conservative but with a split-the-difference attitude on numerous issues, emerged as the swing vote. On several cases the court became a court of one. Why? The narrowest interpretation prevails when there are several positions in the majority, and Justice Kennedy often supplied it.

Thus he supplied the fifth vote in the Rapanos “wetlands” case, deciding that the Army Corps of Engineers had overstepped its legitimate power to regulate wetlands under the Clean Water Act. Whereas the four conservatives (Thomas, Scalia, Alito, Roberts) would have limited the Corps’ jurisdiction to actual navigable waters, as the law specifies, Justice Kennedy offered a convoluted set of standards that are likely to leave the Corps with the same amount of power it has asserted in the past if it does more paperwork.

In Hamdan, Kennedy joined the court’s liberals but wasn’t sure if military commissions violated the Geneva Accords. In Hudson v. Michigan he joined the conservatives in deciding that the ancient “knock and announce” rule when serving warrants didn’t mean much anymore.

“To some extent this is a lawless court,” said Roger Pilon, director of constitutional studies at the libertarian Cato Institute. He pointed out that many of the same justices who thought “navigable waters” meant any puddle found no First Amendment problem with a Vermont law limiting campaign contributions to $200.

The court is political rather than disinterestedly judicious, he said, “but that may be a function of what many have come to expect of the court — that it be the ultimate arbiter of everything.”

Two new justices tilted the court in a slightly conservative direction. Jason Harrow of the Scotusblog Web site calculated that Justice Samuel Alito voted with the conservatives 15 percent more often than had retired Sandra Day O’Connor.

While some counterintuitive splits occur, however, the court consists of four liberals, four conservatives and Justice Kennedy. It runs smoothly, but this is a court in transition that is often confused.