New Issues, Familiar Battles
Supreme Court Begins TermWith Kennedy Again as Swing Vote
Supreme Court Begins TermWith Kennedy Again as Swing Vote
By JESS BRAVIN
WASHINGTON -- Two years ago, John Roberts became U.S. chief justice pledging to seek greater cohesion on a Supreme Court in which individual justices preferred to stake their own ground rather than join a single opinion. Judging by the court's last term, he succeeded -- but not among his fellow conservatives.
As the court reconvenes today for its annual term, the overarching question will be whether the chief justice has ushered in a conservative era solid in outcomes if not unified in reasoning, or whether the liberal bloc, led by Justice John Paul Stevens, can show Justice Anthony Kennedy a route he can comfortably follow to form a majority. So far, the major cases on this term's docket differ significantly from those last year, suggesting that the court's intellectual and ideological battles will move to new topics.
Last term, the court's four liberals, distressed at the way the new conservative majority swept aside precedents or skeptically treated individual rights, adopted unified dissents and sometimes read them from the bench, hoping to focus public attention on the points they considered essential. Meanwhile, the five conservatives, despite prevailing on the outcome of important cases, repeatedly failed to settle on a cohesive approach to the law.
Justices Antonin Scalia and Clarence Thomas, the most doctrinaire in their method of legal interpretation, sought to reverse outright precedents they disliked. Chief Justice Roberts and Justice Samuel Alito took a more nuanced approach, narrowing those precedents while leaving them on the books. Justice Kennedy, the maverick conservative, cast his tiebreaking votes rightward, while leaving liberals a glimmer of hope in such contentious issues as abortion rights, racial integration and student expression.
At its first sitting -- the two-week periods during which the justices hear arguments -- the court's usual divisions likely will be muted. Many of the cases deal with areas that scramble the court's conventional factions, such as federal sentencing laws, where Justice Scalia, citing the Sixth Amendment, has steadfastly sought to protect a defendant from punishment for offenses beyond what a jury found.
Justices of all stripes have backed congressional efforts to rein in shareholder suits against corporations, suggesting it will be an uphill battle for plaintiffs' attorneys in StoneRidge Investment Partners LLC v. Scientific-Atlanta Inc., set for argument on Oct. 9, over whether third parties such as accountants or brokers can be held liable for helping public companies defraud investors. (See a related article on a separate case the court is to hear.)
Later cases are likely to illustrate the court's ideological split and could raise the kind of social issues the presidential campaign can amplify. On Oct. 30, the court will hear the government's plea to reinstate the Protect Act, which made it illegal to distribute "virtual" child pornography such as computer-generated images that could fool purchasers into thinking that an actual child was being depicted. Congress passed the act in 2003 after the court, in an opinion by Justice Kennedy joined by the four liberals, struck down a prior effort to prohibit such materials as too broad and vague to comply with the First Amendment. An appeals court found the replacement statute still went too far into protected speech.
(U.S. v. Williams)
As the court enters its last full term before President Bush leaves office, the highest stakes on the docket may involve the defining legal issue of his administration: the extent of presidential power. Since the Sept. 11, 2001, terror attacks, the administration invariably has argued for the broadest conception of executive authority over military, law enforcement and diplomatic powers, with a diminished role for Congress and the judiciary.
The justices repeatedly have rejected the president's claims, finding in past years that Mr. Bush was bound to honor the Geneva Conventions, that courts held jurisdiction to review detentions at Guantanamo Bay, and that the president couldn't establish military commissions to try alleged war criminals without congressional authorization.
The justices are now considering whether to hear a challenge to the war-crimes tribunals established under the Military Commissions Act, which Congress passed last year.
Already, the court has agreed to review whether Congress could deny Guantanamo inmates the right to habeas corpus, the petition that asks a court to rule on the legality of their detention. And the way the justices took the case suggests the administration may have a difficult time winning five votes for its position.
The case was brought by Lakhdar Boumediene, an Algerian national who was arrested in Bosnia in October 2001 on suspicion of a plot to attack the U.S. Embassy. Bosnian courts ordered Mr. Boumediene released, but local police instead turned him and five Algerian-born Bosnian citizens over to U.S. forces in Bosnia, and he was sent to Guantanamo.
The U.S. Court of Appeals for the District of Columbia Circuit dismissed the case, finding that the Military Commissions Act had stripped habeas rights from Guantanamo prisoners. In April, the Supreme Court declined to hear Mr. Boumediene's appeal, over the objection of liberal justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. But two other justices, Messrs. Stevens and Kennedy, issued an unusual statement saying that while they believed the case was premature, they might reconsider if new information came to light.
That information apparently was the affidavit of an Army lawyer who served on a Combatant Status Review Tribunal, an administrative panel that classifies Guantanamo prisoners and can recommend their release. The affidavit described an amateurish and unfair process, casting doubt on government claims that the panels could be trusted to ensure that only enemy combatants were held.
Such information apparently persuaded a justice to change his mind -- it takes four votes to hear a case -- because the court, without explanation, placed Mr. Boumediene's petition on the docket. Arguments will likely be heard this fall. (Boumediene v. Bush)
The term's first presidential authority case arises outside the war on terror. Instead, it deals with the untested relationships between state, federal and international law -- specifically, whether Mr. Bush holds the power to order a state court to comply with the ruling of an international tribunal. The case, to be argued on Oct. 10, puts the state of Texas in the position of arguing that its former governor, Mr. Bush, lacks the constitutional authority to tell it what to do.
Under the Vienna Convention on Consular Relations, foreign consulates must be notified when their nationals are arrested, and those nationals must be told that they can contact their consulates. But in many American jurisdictions, compliance with the treaty has been spotty, leading to occasional protests from foreign governments.
In 2004, the Mexican government filed suit against the U.S. at the International Court of Justice, the United Nations tribunal in The Hague that hears disputes between countries, charging that denial of consular rights had harmed the cases of 51 Mexicans who had been convicted of murder and sentenced to death. (Medellin v. Texas)
Write to Jess Bravin at jess.bravin@wsj.com
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