Trading Places: Supreme Court Justices Diverged from Old Alliances in Recent Decisions. (Law)

Article excerpt

This term, the U.S. Supreme Court revamped death row, revolutionized school policies and expanded state rights, but 15 decisions that might have been expected to be decided 5-4 came in at 6-3, as the usual alliances subtly shifted. The most stable high court in history--the same nine justices have served together for eight terms--slowly has turned more fractious and less conservative on some issues.

The shifting alliances occurred in lower-profile cases than the blockbuster decision for which the 2002 term best will be remembered, when the high court ruled that the Constitution allows vouchers backed by taxpayer funds to be used at parochial schools. That case reflected the lideological split in place since the current lineup began in October 1994. Chief Justice William H. Rehnquist wrote the vouchers opinion joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Dissenters were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

This year, the "Rehnquist Five" lined up in 10 of the 18 cases decided by a 5-4 margin. For the first time in five terms, the chief justice was in the majority for 63 of the court's 75 decisions, as often as O'Connor, who usually leads that category.

But the chief justice and O'Connor disagreed with each other on 14 cases. Also, O'Connor did not participate in four cases because of investment conflicts, tying the present court's record for recusals in one term, set by Breyer in his first term on the bench.

At the same time, Rehnquist agreed less often with Thomas--53 cases as opposed to 59 last term--while more frequently joining Ginsburg (48 times compared with 44 the year before) and Breyer (49 times compared with 41 in the 2000-2001 term). These splits showed up in unexpected ways. Most surprising of all was Breyer, who traditionally helps anchor the court's so-called liberal wing. This term he supplied the crucial swing vote in two important 5-4 cases when those who typically vote conservative left the fold:

* To allow schools to drug test the 7 million schoolchildren who join extracurricular programs, even without suspicion that a child used drugs (O'Connor opposed that ruling).

* To reject arguments that juries must confirm factors involved in federal guidelines for imposing mandatory minimum sentences (his vote filled the gap left when Thomas voted with the liberal justices).

But 6-3 votes revealed deeper divisions. In six of those votes the chief justice was in a majority that did not include his usual allies, leaving Scalia and Thomas in a minority. …