A year ago, when the U.S. Supreme Court finished its second term under Chief Justice John G. Roberts Jr., the court was criticized -- including on this page -- for giving the lie to Roberts' paeans at his confirmation hearings to consensus and respect for precedent. Twenty-four cases were resolved by 5-4 votes, and on some key issues there was no majority at all. Far from respecting precedent, the Roberts court in its 2006-07 term executed unseemly U-turns on two issues, approving a federal ban on "partial-birth" abortions and overriding school districts that sought to achieve a modicum of racial integration in the classroom.
Last week, the court ended its 2007-08 term, still reckless in its treatment of precedent but more in line with Roberts' comments about consensus. We say this even though three of the most significant cases were decided 5 to 4 on predictable ideological lines: the invalidation of the District of Columbia's gun-control law, turning decades of precedent upside down; a ruling that the death penalty may not be imposed on child rapists; and a rejection of the Bush administration's and Congress' view that detainees at Guantanamo Bay lack the protections of habeas corpus.
Those decisions may be the exceptions that prove the rule of a more collegial court. According to a calculation published on ScotusBlog, the percentage of 5-4 decisions this term was roughly half of what it was last term. Even the D.C. gun decision, which we deplored, was more cautious and modest in its rhetoric than one would have expected from an opinion written by the strident Justice Antonin Scalia. Was a more circumspect majority opinion the price Scalia had to pay for the signatures of Roberts and Justice Samuel A. Alito Jr.? It's impossible to know, but in other cases, President Bush's two appointees redeemed somewhat their reputation for uncritical allegiance to a conservative political agenda.