SC Lawyer, September 2006, #5. A Tale of Two Terms: A Transitional Year for the United States Supreme Court.

South Carolina Lawyer


SC Lawyer, September 2006, #5.

A Tale of Two Terms: A Transitional Year for the United States Supreme Court

South Carolina LawyerSeptember 2006A Tale of Two Terms: A Transitional Year for the United States Supreme CourtThe Supreme Court term that adjourned on June 29 revealed a Court in transition. After a decade in which the Court's membership remained unchanged, the Court welcomed two new members: Chief Justice John Roberts (who was sworn in just in time for the term's first arguments) and Associate Justice Samuel Alito (who replaced Associate Justice Sandra Day O'Connor in late January). While it remains much too early to draw any firm conclusion about the direction of the newly constituted Court, some important themes began to emerge as the year unfolded.

To begin with, Chief Justice Roberts has worked hard to achieve greater consensus on the Court, with at least superficial success. The number of cases decided by the narrowest possible margin (5-4 or 5-3) declined from 24 to 15. According to statistics gathered by the law firm Akin Gump, the new Chief Justice achieved the statistically improbable feat of voting more often with every single one of his colleagues than did his predecessor, the late William Rehnquist.

While these aggregate statistics are worth note, they tend to obscure the degree to which the Court's consensus broke down as the year wore on, particularly in high profile cases. The replacement of Justice O'Connor by Justice Alito neatly cleaved the Court's term into two distinct periods. The twenty-odd opinions issued during Justice O'Connor's final months of service include a series of surprisingly narrow and surprisingly unanimous decisions in such contentious areas as abortion, federalism and voting rights. For the first few months of the term, the Justices calmly waited for the arrival of a new era, quietly going about their business in routine cases and avoiding broad rulings in potentially explosive ones.

After Justice Alito joined the Court, the Justices appear to have spent several more months feeling each other out, moving slowly to issue decisions and agreeing more broadly than usual in the ones that they did issue. However, when the Court finally turned to its most difficult cases in the final months of the term, sharp and unsurprising divisions began to emerge, with Chief Justice Roberts and Justice Alito almost uniformly aligning themselves with Justices Antonin Scalia and Clarence Thomas on the Court's right wing. As is often the case, the last days of the term Court included a number of sharply divided decisions laced with biting rhetoric.

In the cases that divided the Court, Justice Anthony Kennedy consistently emerged as the swing vote. In the term's most momentous case, Hamdan v. Rumsfeld, Justice Kennedy provided the decisive fifth vote for a broad decision invalidating the military commissions established by President George W. Bush to try terror suspects detained at Guantanamo Bay, Cuba, and largely repudiating the theory of broad unilateral executive powers consistently forwarded by the present administration. While Hamdan was the most prominent instance of Justice Kennedy's growing power, his (at times idiosyncratic) views proved dispositive in a wide range of cases in areas stretching from voting rights to environmental regulation to the death penalty.

With only a single bifurcated year under its belt, it is difficult to predict the ultimate storyline of the Roberts Court. More clues will certainly emerge next term when the Court confronts a docket already chock full of important cases, including two raising constitutional challenges to the federal statute banning certain late-term abortion procedures. Until then, those interested in examining the Roberts Court are left with this term's output, a modern low of 71 opinions in argued cases. The following paragraphs summarize 25 of those opinions, selected on the basis of legal importance, public notoriety and relevance to South Carolina.

I. Civil casesA. The "War on Terrorism" and the powers of the Executive BranchHamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)

In the term's most closely-watched case, the Court (5-3) invalidated the military commissions established by the President to try some of the terror suspects being held by the United States at Guantanamo Bay, Cuba. Before reaching the merits of the case, the Court held that a recently-adopted law limiting the courts' jurisdiction to hear challenges to the commissions did not apply retroactively to lawsuits already pending before the statute's passage. Upon reaching the merits, the Court determined that the President lacked the power to establish such commissions on his own initiative, at least in the face of Congressional statutes that seem to reflect an assumption that military trials will follow the normal-court martial procedures laid out in the Code of Military Justice. The Court also found that some aspects of the commissions violated a provision of the Geneva Convention that requires nations to try foreign prisoners through "a regularly constituted court." The decision is broad in its language and holdings and appears to have far-reaching consequences for both separation of powers law and the rights of detainees in the ongoing terror conflict. As to military commissions themselves, the action now moves to Congress, where the Bush administration is seeking legislative approval for commissions similar to those struck down by the Court but meeting resistance from members (including Sen. Lindsey Graham) who believe that even directly-authorized commissions might not pass muster under the Geneva Convention or who simply prefer that terror suspects be processed through a system based on the traditional court martial procedures.

B. First Amendment freedom of speech 1. Wisconsin Right to Life, Inc. v. Federal Elections Commission, 126 S. Ct. 1016 (2006)

In a very short and unanimous opinion, the Court left open the possibility that a provision of the McCain-Feingold campaign finance reform legislation barring the airing of certain advertisements within 30 days of a primary or 60 days of a general election might violate the First Amendment rights of some advocacy groups. While the Court had previously upheld the provision in question against a facial...

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