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The Supreme Court in summation

The Supreme Court term just ended was marked by close rulings but also surprising consensus.

July 05, 2009

The most important prism through which to view the U.S. Supreme Court term that ended last week is the wisdom of the court's decisions -- or the lack of it. But the results of Justice David H. Souter's last term on the court also illuminate questions about the court's role that are sure to figure in the Senate confirmation hearings of his designated successor, Judge Sonia Sotomayor.

Our own view of the court is that it isn't a legislature by another name in which liberals and conservatives pursue predetermined agendas in the guise of interpreting the Constitution. Although every justice brings personal and philosophical predilections to the bench, the credibility of the court depends on the perception that its members strive to subordinate those preferences in particular cases.

As for "judicial activism," a charge hurled mainly at liberals by conservatives and occasionally vice versa, we believe that the court ought to defer to other branches of government when the legal issues are clear. The problem is that they often aren't clear. Justices shouldn't act as algorithms to process facts; they are selected by presidents to apply enduring constitutional principles to evolving conflicts. In cases in which the Constitution doesn't clearly command a particular result -- on issues as diverse as racial equality, gun ownership and the rights of criminal defendants -- there is a principle that should guide the court. It's the motto engraved on its own building: "Equal Justice Under Law."

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Factions vs. consensus

By those two standards -- open-mindedness about individual cases, coupled with a special vigilance about violations of individual rights -- this past term produced mixed results but not the rightward lurch that some feared.

The fact that 23 out of 74 signed decisions were decided by 5-4 votes, with Justice Anthony M. Kennedy again playing the pivotal role, perpetuates the image of inflexible factions on the court. At the same time, in some cases the court achieved consensus in a way that didn't upend protections for civil rights or usurp the prerogatives of Congress. That may have reflected a rededication by Chief Justice John G. Roberts Jr. to the ideal of judicial modesty he trumpeted at his confirmation hearings -- or, as more cynical observers suspect, Roberts may be engaged in an incremental undermining of precedents he opposes. Either way, the wrecking crew feared by some civil rights groups never materialized.

The court didn't gut a provision of the Voting Rights Act requiring states with a history of voting discrimination to clear changes in election procedures with the Justice Department, though Roberts' opinion in the 8-1 decision put Congress on notice that it should reconsider whether those states have redeemed themselves. It did not declare unconstitutional a rule requiring employers to show that tests that disproportionately exclude minorities are job-related, even as it held 5 to 4 that New Haven, Conn., misread that principle in discarding a test on which no black firefighters earned a promotion. It upheld on a 5-4 vote punishment for broadcasters who inadvertently air vulgar expletives, but left for another day whether such reprisals violate the 1st Amendment. In one action that does suggest the court might soon abandon a precedent, it postponed a ruling on whether an anti-Hillary Rodham Clinton documentary violated part of the McCain-Feingold campaign-finance law. In September, it will hear arguments on whether that section of the law violates the Constitution.

Other rulings were unalloyed victories for those who depend on the court to right wrongs committed, or ignored, by other institutions. By an 8-1 vote, the court ruled that school officials violated the rights of a 13-year-old girl when they strip-searched her on suspicion that she was hiding a prescription painkiller. By a 5-4 margin, it held that an elected West Virginia Supreme Court justice should have recused himself from a lawsuit involving a major campaign benefactor. In another 5-4 vote, it ruled that the 6th Amendment's confrontation clause requires that forensic experts be cross-examined about their findings, a recognition that crime labs aren't infallible. Deferring to Congress' decision to make special accommodations for disabled students, it ruled 6 to 3 that parents may be reimbursed for private-school tuition if a public school is found to have ignored a child's disability.

There was one decision that can only be deplored as a dereliction of the court's duty to provide a last resort for victims of injustice. By another 5-4 vote, it ruled that convicted defendants have no constitutional right to DNA evidence that might exonerate them. Roberts' majority opinion rationalized inaction by noting that most states offer access to DNA results, small comfort for prisoners who live elsewhere.

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Questions for Sotomayor

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