The Supreme Court’s 2005-06 term–the first to feature the newly confirmed Chief Justice, John Roberts Jr., and Justice Samuel Alito–began with a whimper and ended with a bang. The term’s early months saw the Court issuing an unusually high number of unanimous opinions, even in such potentially controversial areas as abortion and gay rights, as the Court sought to decide cases extremely narrowly and thereby avoid controversy. But by the end of the term, controversy was front and center, as the Court divided sharply on its most significant cases, culminating in the stunning 5-to-3 decision, the last day of the term, declaring George W. Bush’s military tribunals illegal.
In Hamdan v. Rumsfeld, the most important case of the term, the Court showed itself willing to do what neither Republicans nor Democrats in Congress have been able to do: Stand up to the President in the “war on terror.” The Court’s decision reaffirmed, as Justice John Paul Stevens put it, that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.” The Court’s capitalization of the “Rule of Law” underscored its effort to enforce the concept of legality on an Administration that has long since adopted the view that the law can impose little or no constraint on the President during wartime–whether it be the international laws of war, criminal prohibitions on torture and warrantless wiretapping of Americans, or the Uniform Code of Military Justice, a statute that establishes the rules for military trials.
But as much as Hamdan deserved celebration for rejecting the President’s vision of unchecked power in the post-9/11 world, the term also showed just how close the country is to a system of government that has no meaningful checks and balances. Bush’s two new appointees generally proved themselves reliable conservatives–if not exactly in the mold of Justices Scalia and Thomas, which Bush said he was striving for, at least very close. Justices Roberts, Alito, Scalia and Thomas proved a reliable four votes for conservative results, while Justices Stevens, Souter, Ginsburg and Breyer continued to be a fairly reliable four votes for moderate to liberal outcomes. (Long gone are the days of Justices William Brennan and Thurgood Marshall.)
That leaves Justice Anthony Kennedy smack dab in the middle, with the ability to cast the decisive vote in many of the Court’s most contentious disputes. Before the term began, it was an open question whether Kennedy would be persuaded to join the conservative bloc by the less acerbic and more politic conservative voices of Roberts and Alito, or whether he would maintain a swing-vote presence in the center, a position he shared with Justice Sandra Day O’Connor until her retirement. Thus far, he has remained in the middle. Justice Kennedy sometimes voted with the conservative bloc, including in a case upholding a Kansas death penalty statute, but went his own way on such significant issues as the military tribunals, the reach of the Clean Water Act, the exclusionary rule, gerrymandering and the Voting Rights Act.