Let's talk about so-called "activist judges", shall we?

In Steps Big and Small, Supreme Court Moved Right

By LINDA GREENHOUSE

WASHINGTON, June 30 — It was the Supreme Court that conservatives had long yearned for and that liberals feared.

By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.

As a result, the court upheld a federal anti-abortion law, cut back on the free-speech rights of public school students, strictly enforced procedural requirements for bringing and appealing cases, and limited school districts’ ability to use racially conscious measures to achieve or preserve integration.

With the exception of four death penalty cases from Texas, where the state and federal courts remain to the right of the Supreme Court and produce decisions that the justices regularly overturn, the prosecution prevailed in nearly every criminal case, 14 of the 18 non-Texas cases.

Fully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines, demonstrating the court’s polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The court’s last-minute decision, announced on Friday, to hear appeals from Guantánamo detainees required votes from at least five of the nine justices.

Of the ideological cases decided this term, the conservative majority, led by Chief Justice John G. Roberts Jr. and joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., prevailed in 13. The court’s increasingly marginalized liberals — Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — prevailed in only six, including the four Texas death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases. In the 68 cases the court decided by signed opinions, Justice Kennedy dissented only twice.

The statistics underscore what case after case demonstrated as the term unfolded: Justice Kennedy’s role in the position that Justice Sandra Day O’Connor once held at the court’s center of gravity. “Kennedy is very much the median justice now, as Justice O’Connor was, and he is to her right,” said Steven G. Calabresi, a professor at Northwestern University School of Law.

NYT Article