Pattern emerges in high court decisions

WASHINGTON -- The Supreme Court on Monday confirmed the contours that are taking shape under Chief Justice John G. Roberts. Roberts and Justices Samuel Alito, Anthony Kennedy, Clarence Thomas and Antonin Scalia supported an Alaska high school pri...

WASHINGTON -- The Supreme Court on Monday confirmed the contours that are taking shape under Chief Justice John G. Roberts.

Roberts and Justices Samuel Alito, Anthony Kennedy, Clarence Thomas and Antonin Scalia supported an Alaska high school principal who forced a student to take down a banner proclaiming "Bong Hits 4 Jesus." They also blocked taxpayers from challenging President Bush's faith-based initiatives.

The Roberts circle likewise united in ruling that Wisconsin Right to Life should have been permitted to run pre-election ads targeting Democrats. The same five justices sided with home builders over environmentalists in agreeing that the state of Arizona could take over clean-water enforcement without first being reviewed by the federal Fish and Wildlife Service.

On Thursday, the court will finish its spring term with a handful of opinions, including a much-anticipated decision on affirmative action.

While three of the five decisions Monday arrived on a 5-4 majority, they showcased what has become an ideologically conservative and business-friendly, if narrow, majority.


Since last October, in Roberts' second term as chief justice, the U.S. Chamber of Commerce has claimed 11 victories and seen only two defeats on business-related cases.

"We always thought the [Chief Justice William] Rehnquist court was a good forum for business," noted Maureen Mahoney, a lawyer who has argued 18 cases before the court, "but the Roberts court is even better."

"This is a victory for a ... common-sense approach to environmental regulation," said Damien Schiff, an attorney with the conservative Pacific Legal Foundation, based in Sacramento, Calif.

The court has been irrevocably changed by the departure of former Justice Sandra Day O'Connor and her replacement by Alito.

In December 2003, for instance, O'Connor wrote part of the opinion in which the court upheld a sweepingcampaign-finance law. On Monday, Alito helped undermine part of the earlier opinion regulating pre-election ads run by unions and corporations.

"It goes without saying that nothing has changed about the facts," Justice David Souter noted in dissent. "It is only the legal landscape that now is altered," he added.

Even more than in previous years, the court was skeptical of the San Francisco-based 9th U.S. Circuit Court of Appeals, considered the nation's most liberal. With Monday's decisions, the Supreme Court has reversed the 9th Circuit on 17 out of 19 opinions issued since October.

The 70 decisions expected by the time the court leaves for summer vacation reflect a continually shrinking workload for a court that handled twice as many cases a generation ago. The rulings also show that Roberts hasn't had the success he wanted in forging a more unified court.


With the decisions issued Monday, 19 opinions issued this term have come on 5-4 splits. Last term, only 12 decisions were split 5-4.

At his Senate confirmation hearing, Roberts had suggested that he would be getting different results.

"I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution," he told the Senate Judiciary Committee, "and that would certainly be a priority for me if I were confirmed."

Nor was Roberts simply talking about unanimity, which is frequently elusive. In particular, he was hoping to steer the court away from the fractured decision-making in which a majority is constructed by multiple justices writing multiple opinions.

"That undermines the importance of providing guidance," he told senators.

Nonetheless, some of the decisions Monday provided nearly as many opinions as there are justices.

For instance, five justices agreed that a 2002 campaign-finance law unconstitutionally infringed on Wisconsin Right to Life's free-speech rights. The law bans unions and corporations from directly financing political ads within 60 days of general elections and 30 days of primary elections.

But two concurring opinions and a dissent complicated the ruling, with even the justices seeming to disagree about its implications. Roberts, for instance, declared that the decision left the underlying campaign-finance law untouched, while Souter said the ruling effectively struck down part of the law.


"The new test announced by the court today is vague and undoubtedly will be the subject of interpretation by the FEC [Federal Election Commission] and lower courts as they struggle to apply it to future ads," cautioned J. Gerald Hebert, the executive director of the Campaign Legal Center.

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