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Harmonious Week For The Roberts Court

Publication Date: 
June 29, 2009
Source: 
Los Angeles Times
Author: 
David G. Savage

Professor Pamela S. Karlan is quoted in a Los Angeles Times story about last week's Supreme Court decisions. David Savage, reporting from Washington, writes:

When John G. Roberts Jr. took over as chief justice at the Supreme Court four years ago, he sounded the same theme that President Obama did more recently.

The court was too divided and too polarized, he said, and he proposed a type of judicial bipartisanship. He said he would seek a broader agreement among the justices, even if it sometimes meant deciding cases more narrowly.

But the chief justice, like the president, soon found it was easier to talk about finding common ground than to reach agreement on a common decision. On issues such as abortion, affirmative action and Guantanamo, the justices remained sharply split 5 to 4.

Last week, however, saw the Roberts approach at work in two of this year's most important cases. The normally fractured court spoke with near unanimity to preserve the historic Voting Rights Act and to declare unconstitutional the strip-search of a 13-year-old girl at school.

In both cases, the conservative and liberal justices joined in 8-1 decisions, even though they did not fully resolve the issues at stake.

...

Instead of striking down as unconstitutional the section of the Voting Rights Act requiring the Justice Department's preapproval of any electoral changes in Southern states, Roberts wrote an opinion simply allowing municipalities to "bail out" of the system if they have a good record. And justices who have voted in the past to give school officials wide latitude in searches agreed with the liberal wing that the strip-search of a 13-year-old suspected of hiding ibuprofen went too far. Only Justice Clarence Thomas stood apart from the majority.

So are the 8-1 decisions signs of a new harmony on the Supreme Court, or examples of smart, tactical moves by the chief justice?

Stanford University law professor Pamela Karlan says it is the latter. "He didn't have the votes" to overturn the Voting Rights Act, she said, so Roberts opted for a decision that weakens the law.

It takes five votes to have a majority at the Supreme Court, and many lawyers questioned whether Justice Anthony M. Kennedy would supply a fifth vote to strike down the key part of the Voting Rights Act.

"Kennedy is sensitive to the racial dynamics. And they all knew the court would take a huge hit" had they struck down the law, Karlan said.

"That decision would be very hard to explain to the American public. The message would have been: 'Conservative activists strike down voting rights,' " she said. "Besides, Roberts is young, and he's in it for the long haul. He can afford to wait."