As the 2005 term neared its June 30 end date, the Supreme Court, still adjusting to its first membership change in 11 years, had yet to decide dozens of cases that had defied quick resolution throughout the term.
The end of the term seemed a bit bumpy, especially when contrasted with earlier months in which 26 unanimous opinions had been issued with deceptive ease. One of those opinions, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), No. 04-1152, had been considered a possible harbinger of a new collegiality on the Court. Although the contentious issues at play in that case involved gay rights, free speech, and the military, it was resolved with dispatch and without dissent. Was this how the Court would operate under its new chief justice, John Roberts?
But with the last-minute release of seriously fractured decisions in many of the most-watched cases at the end of June, it became clear that the new Court could be as divided as the old. Many of the term's "big" cases, such as Hamdan v. Rumsfeld, No. 05-184, were decided by bare 5-vote majorities and accompanied by the now familiar bevy of concurrences and dissents. Even before the dust had settled, commentators, looking to the future, announced the increased influence of Justice Kennedy. The reason? In high-profile cases such as Hamdan, justices Antonin Scalia, Clarence Thomas, and Samuel Alito tended to align their votes with Roberts, while justices John Paul Stevens, David Sourer, Ruth Bader Ginsburg, and Stephen Breyer did not. It was thus frequently left to Justice Kennedy to determine the outcome of the case, either by casting his lot with one faction or the other, or even, as he did in Rapanos v. United States, No. 04-1034, by creating a 4-1-4 result after writing an opinion no other justice would join.
Justice Kennedy even ended up writing an opinion in League of United Latin American Citizens v. Perry, No. 05-204, that headed up a conservative majority for one aspect of the case (rejecting a charge of illegal gerrymandering brought against Republican statewide redistricting moves in Texas) and a liberal majority for another (upholding a Voting Rights Act challenge to the dismemberment of a specific Latino-majority congressional district).
Meanwhile, the 4-1-4 result that Kennedy's lone opinion caused in the Rapanos case created an immediate cloud of doubt over the true contours of federal jurisdiction to regulate wetlands under the 1972 Clean Water Act. "It is unfortunate that no opinion commands a majority of the Court," the chief justice noted in Rapanos. "Lower courts and regulated entities will now have to feel their way on a case-by-case basis."
The Court began the 2006 term on October 2 with 29 new cases in its inbox--eight fewer than had been accepted for review by this time last year, and only about a third of the total cases it will likely end up agreeing to review before the 2006 term ends in June 2007. Included in this initial batch of "cert granteds" are some genuinely big issues: abortion, environmental law, punitive damages, and the use of race when assigning students to public schools.
Before looking ahead to the new term, however, the decisions in a couple of last term's cases are worth a second look. Set against the backdrop of the Iraq War, the war on terror, and September nth, these cases are interesting, both for the way they show the Roberts Court's ability to speak with unexpected clarity one day and in a cacophony the next, and as a cautionary note for those who are tempted to pigeonhole the justices as "liberal" or "conservative" in a narrow political sense.
The 2005 Term Free Speech
The case of Rumsfeld v. FAIR began when a number of law schools that invited employers into their buildings to conduct job interviews decided to deny military recruiters that same access to students. These schools had all adopted antidiscrimination policies that made their career services and interviewing facilities unavailable to employers who discriminate on the basis of sexual orientation or other prohibited grounds such as race, religion, or national origin. …