Robert Barnes in the Washington Post:
Term Saw High Court Move to The Right
Roberts-Led March Likely to Continue
OK so this isn't exactly shocking, but I'm glad the Post put it on the record.
On the verge of declaring the key provision of the Voting Rights Act unconstitutional, but then stepping back. Looking hard at whether some protections of minorities amount to violations of the Constitution, then leaving the topic for another day. Appearing sympathetic to school officials for their decision to strip-search a 13-year-old student, but shielding them only from any liability for their actions.
Doesn't lack of liability essentially mean it's allowed?
The court's conservatives made it harder for those pressing civil rights claims to get into court, and the same for environmentalists. Conservative justices raised the bar for those alleging age discrimination, a decision that liberal Justice John Paul Stevens called "an unabashed display of judicial lawmaking." They declined to find a constitutional right to DNA testing for prisoners who say the tests could prove their innocence.
I suppose, if one takes a strict constructionist view, that videotaped testimony could be excluded. No mention of that in the Constitution.
It is a familiar ideological split: Roberts, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. on one side; Stevens, Ginsburg, Stephen G. Breyer and Souter on the other. Justice Anthony M. Kennedy remains in the role of the decider, finding himself in the majority more than any other justice and siding twice as often in 5 to 4 votes with conservatives as he did with liberals.
I know Jeffrey Rosen has annoyed some people lately, but his book The Supreme Court: The Personalities and Rivalries that Defined America is quite good, and he and Jeff Toobin, in The Nine, shaped my negative view of Justice Kennedy. You're almost better off with Scalia -- almost. Scalia has been known to shift to make the wind blow to the right.
Yale law professor Jack M. Balkin, who runs a popular liberal blog on the court, wrote that the court's decision to stop short of finding the provision unconstitutional -- as well as its decision to put aside equal-protection questions about Title VII of the Civil Rights Act -- was due to the country's changing political climate.
"If I am correct, what put the conservative Justices (and especially Justice Kennedy) on the defensive was the assumption that they would risk sacrificing the Court's legitimacy in a climate in which neither the President nor the Congress would support their gambit and would in fact do everything possible to undermine their legitimacy," he wrote.
I can remember when I thought the court was nine great legal minds doing their best for our country. I still think that, sometimes, in the same way I irrationally believe baseball players don't do steroids. Then they get tested, and I have to face the truth. It's not pleasant.
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