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Supreme Court Closes Deeply Divided Term

Publication Date: 
July 02, 2009
National Public Radio
Nina Totenberg

Professor Pamela S. Karlan and Lecturer in Law Thomas C. Goldstein are quoted in a Supreme Court end-of-term summary by National Public Radio's Nina Totenberg.

With the close of the term, the justices of the U.S. Supreme Court are fleeing Washington for their summer teaching gigs. And as the words of the court's opinions settle into law books, a picture is emerging of a conservative court on a slow but steady march to the right.


The current Supreme Court is deeply split, dividing 5-4 or 6-3 in almost half its cases. Supreme Court advocate Tom Goldstein, founder of the leading Supreme Court blog, calls this the most divided term in the court's modern history.

"While it wasn't a clean sweep for the conservatives, they won really the cases that mattered the very most," Goldstein said.

Yet the court did not go as far as some liberals had feared. In the two most high-profile cases of the term, the court did not strike down the Voting Rights Act as unconstitutional, and it did not strike down a key provision of the law governing civil rights in employment.


Goldstein has no doubt about the direction of the court. "Step by step, the court is moving the law to the right," Goldstein said. "There is no rush. John Roberts knows he's going to have this conservative majority for at least almost 10 years."


"It's long been the case in the American courts that you would use the filing of your lawsuit to get the evidence you need to prove your case," said Goldstein. "But the Supreme Court is now saying no way."

Critics say the decision poses litigants with a Catch-22: How do they prove their case at an early stage, before they are allowed to subpoena documents and take depositions?

At the same time, the court, in another 5-4 decision, made it easier for institutions like welfare agencies, prisons and schools to get out from under court orders requiring them to comply with federal mandates or constitutional provisions.

While the frequent targets of such suits applauded these decisions, Stanford University law professor Pam Karlan says these cases illustrate a desire to close the courthouse door to many kinds of litigation.