A less deferential high court

The judiciary is sometimes called the least dangerous branch of government because it supposedly acts with neither force nor will, only judgment.

But the 2007-08 term that just concluded at the US Supreme Court included the spectacle of justices accusing one another of endangering American lives and of staking out a less-than-modest role on the national stage.

In cases dealing with the threats of international terrorism, urban gun violence, and child sexual predators, critics say the Supreme Court appears to be positioning itself more as a player than as an umpire.

In three 5-to-4 landmark decisions, the high court rejected judgments made by political leaders and policymakers about how best to keep the country safe and free.

In each case, the majority justices struck their own balance between security and freedom.

Whether the country is now less safe remains to be seen. But the action is important because it signals a willingness of at least some of the justices to play a more aggressive role in ongoing national controversies, particularly Bush administration policies in the war on terror.

To critics it smacks of judicial supremacy. To supporters it is the high court taking principled and courageous stands.

Two of the decisions – striking down a death sentence for child rape and requiring judicial review for terror suspects held at Guantánamo Bay – are being hailed as liberal landmarks, while the third – enforcing Second Amendment gun rights – is seen as a conservative tour de force.

The losers in all three cases were elected officials who made policy choices.

•In Washington, city officials besieged by gun violence and fearful of firearms accidents enacted a ban on handguns. In a 5-to-4 decision last Thursday, the court struck down the ban, ruling that city residents – and all Americans – have a right to keep a loaded handgun at home for self-defense.

•State lawmakers in Louisiana wanted to protect children from sexual predators, so they passed a law making child rape a capital crime. In a 5-to-4 decision last Wednesday, the justices struck down the law, saying there was a national consensus that a death sentence would be cruel and unusual punishment for a child rapist unless he killed his victim.

•In 2006, Congress and the president passed a law that sharply limited the ability of foreign terror suspects to challenge the legality of their open-ended detention at Guantánamo Bay. In a 5-to-4 decision on June 12, the court struck down the law and ordered the government to give the detainees access to American judges.

The Guantánamo ruling prompted a fiery dissent from Justice Antonin Scalia, who warned that the decision "will almost certainly cause more Americans to be killed." He and Chief Justice John Roberts blasted the majority justices for failing to accord the proper level of deference to the political branches of government.

Justice Anthony Kennedy, author of the Guantánamo decision, said the court had a duty to act and say what the law is. "The political branches," he said, "can engage in a genuine debate about how best to preserve constitutional values while protecting the nation from terrorists."

Justice Scalia called Kennedy's approach "faux deference." He added: "What the Court apparently means is that the political branches can debate, after which the Third Branch will decide."

The Washington gun rights case produced a version of the same debate among the justices. But this time it was Scalia defending the importance of upholding a fundamental liberty. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad," Scalia wrote in the majority opinion in District of Columbia v. Heller.

"The Constitution leaves the District of Columbia a variety of tools...," he added. "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

The court's liberal wing responded with Scalia-like calls for judicial deference. "I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem," Justice Stephen Breyer wrote in his dissent.

The high court's blockbuster decisions could prove important in the upcoming presidential election. In addition to highlighting differences between John McCain and Barack Obama, they are a reminder that the next president will likely shape the future direction of the court.

At 88, Justice John Paul Stevens is believed to be close to retiring. And court watchers say two other justices, David Souter and Ruth Bader Ginsburg, may step down.

"There will be appointments in the next presidential term, it is just a question of how many," says Carl Tobias, a law professor at the University of Richmond Law School in Virginia.

In addition to the high court's more aggressive posture, the 2007-08 term featured hints of an apparent change in the internal dynamics at the nine-member court.

Justice Kennedy maintained his role as the most powerful justice, wielding influence as a centrist swing voter. He cast the decisive fifth vote in each of the three blockbuster decisions and personally authored two of them. But at the same time, Chief Justice Roberts appears to be working behind the scenes to build broader coalitions of six or seven justices in certain cases, analysts say.

When the term started last fall, many court watchers expected bitter 5-to-4 showdowns over the constitutionality of Kentucky's use of lethal injections to carry out the death penalty, and over a Republican-backed law requiring Indiana voters to produce photo identification before being allowed to cast a ballot.

Instead, the high court upheld Kentucky's lethal injection protocol by a 7-to-2 vote and declined to strike down Indiana's photo ID requirement by a 6-to-3 vote. Analysts say the broader coalitions appear to be the handiwork of the chief justice.

Roberts pledged during his confirmation hearings to pursue a strategy of judicial minimalism, seeking to narrow cases to facilitate broader agreement among justices.

Judicial minimalism means that when a judge can decide a case on narrow grounds, he or she need not reach broader issues in the same case. Legal scholars say this approach may account for a reduction in the number of 5-to-4 cases handed down this term compared with last term. In 2006, 33 percent of the court's decisions were 5 to 4, compared with 17 percent this year.

"This term is an attempt to behave more like a court and less like a political institution," Washington lawyer and Supreme Court scholar Tom Goldstein told a recent briefing at the Washington Legal Foundation. "There seems to have been from the very beginning of the term a conscious effort to bring the court together."

But such efforts go only so far, analysts say. And there are costs. Court watchers say that while narrow rulings may foster more unity and an image of collegiality, they often fail to produce clear constitutional principles that can be easily applied by lower court judges in future cases.

In addition, analysts say, when the stakes are high enough the justices revert to the more traditional 5-to-4 alliances.

"The blockbuster cases, the really big ticket cases have brought into sharp focus how closely divided the court really is on the very large and highly philosophically charged issues before the court," Washington lawyer Charles Cooper told reporters recently. "On those kinds of cases, what Kennedy says goes."

In other action during the term, the high court:

•Ruled 5 to 3 that a $2.5 billion punitive damages award against Exxon for the Exxon Valdez oil spill was excessive under maritime law and must be reduced to $500 million.

•Struck down by a 5-to-4 vote the so-called Millionaire's Amendment of the McCain-Feingold campaign finance law.

•Rejected by a 7-to-2 vote a First Amendment challenge to a law banning the pandering of child pornography.

•Decided 7 to 2 that federal judges have discretion to consider and then reject punishments suggested under the federal sentencing guidelines.

•Ruled 6 to 3 that a World Court order mandating compliance with an international treaty does not preempt state laws and procedures in death penalty cases.

•Ruled in two cases, 6 to 3 and 7 to 2, that workers may sue their employers for retaliation related to alleged discrimination claims even if the underlying statute doesn't specifically authorize retaliation suits.