A Win by McCain Could Push a Split Court to Right [SIZE=-1]By Robert Barnes[/SIZE] [SIZE=-1]Washington Post Staff Writer[/SIZE] [SIZE=-1]Sunday, June 29, 2008; A01[/SIZE] For much of its term, the Supreme Court muted last year's noisy dissents, warmed to Chief Justice John G. Roberts Jr.'s vision of narrow, incremental decisions and continued a slow but hardly steady move to the right. But as justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path. A victory by the presumptive Democratic nominee, Barack Obama, would probably mean preserving the uneasy but roughly balanced status quo, since the justices who are considered most likely to retire are liberal. A win for his Republican counterpart, John McCain, could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right. "If there's one thing you can see about this court, it is that it still sits on a knife's edge," said Jeffrey L. Fisher, a Stanford University law professor who argued three cases before the justices this year. That was readily apparent in the court's closing days, as it whipsawed from left to right and back again on the constitutional rights of terrorism suspects, individual gun ownership and the ability of government to restrict it, and the increasingly narrow view of who is eligible for the death penalty. Each case pitted the court's four consistent conservatives against its four slightly less consistent liberals, with Justice Anthony M. Kennedy returning to his role of last term as the deciding vote. "The blockbuster cases, the really big cases, have now brought into very sharp focus how closely divided the court is on the really large and philosophically charged issues before the court," said Charles J. Cooper, a Washington lawyer who was an official in President Ronald Reagan's office of legal counsel. It has cast "the sharpest possible focus how important the court is going to be, I should think and should hope, in the upcoming election debate," Cooper added. The next appointment to the court will almost surely fill the seat now held by one of the court's liberals, whose average age at the beginning of next October's term will be 75. For Obama, any initial appointment would likely replace one liberal with another, albeit with a younger and perhaps more outgoing advocate for his views of the court's role. But a McCain victory could give the conservative bloc a clear-cut majority for years to come. President Bush has provided the model with his nominations of Roberts, to continue the conservative legacy of former chief justice William H. Rehnquist, and Samuel A. Alito Jr., to replace the former justice found most frequently in the middle, Sandra Day O'Connor. "I think on any measure one would have to agree this is a more conservative court than was the court a couple of years ago, because on any measure Justice Alito is a more conservative justice than was Justice O'Connor," said R. Ted Cruz, a former Rehnquist clerk who argued before the court several times this year as Texas's solicitor general. "But that being said, this is very much an almost exquisitely balanced court, with Justice Kennedy remaining at the fulcrum of most -- if not practically all -- close decisions." It is telling that Kennedy, currently the court's most influential justice, is never mentioned as a model by either McCain or Obama. Kennedy's iconoclastic views -- conservative on some constitutional questions, more liberal on others -- would not appeal to either candidate's base. Kennedy's record this year is not as auspicious as last year's, in which he was in the majority of every one of the court's 5 to 4 decisions. But his role at the end of the term cannot be overstated. He wrote the court's decisions declaring that terrorism detainees held at Guantanamo Bay, Cuba, have a constitutional right to take their cases to U.S. courts, and that it is unconstitutional for states to impose the death penalty on child rapists. That broad decision established that capital punishment is appropriate only for the most violent of those who take another human life, and perhaps for crimes against the state such as treason and espionage. Kennedy provided the fifth vote for the court's decision to strike the District ban on handguns and to find in the Second Amendment the right of private gun ownership. He joined the conservative majority in striking as unconstitutional the "Millionaire's Amendment" in the McCain-Feingold campaign finance reform act, which increased contribution limits for candidates with wealthy, self-financed opponents. (McCain's endorsement of Roberts and Alito as his models for judicial appointments is somewhat ironic, since each has authored an opinion dismantling part of the senator's most notable legislative achievement.) The addition of a conservative in the mold of Roberts or Alito to replace the court's longest-serving justice, 88-year-old John Paul Stevens, would make Kennedy's role less pivotal. For instance, it would not be hard to imagine the court's jurisprudence on the death penalty changing dramatically without Stevens, who this year announced that his 30 years on the bench had convinced him that capital punishment cannot be fairly administered. Likewise, O'Connor had often been a pragmatic ally for the liberals on issues such as abortion rights, affirmative action and the separation of religion and government. Some of those issues already have been affected by Alito's appointment, and additional changes in those areas would seem likely. The rush of one-vote constitutional rulings at the end of the term overshadowed the court's earlier ability to resolve equally controversial issues by larger margins. The court voted 6 to 3 on a complicated separation-of-powers case to deny the president's ability to tell courts to rehear a case. By the same margin, it said that requiring voters to present photo identification before casting a ballot was not an unconstitutional burden, an issue that starkly divides Democrats and Republicans. It voted 7 to 2 to uphold lethal injection against a challenge that the process could sometimes cause pain that constitutes cruel and unusual punishment, and to approve a congressional rewrite of child pornography law that some said could violate First Amendment rights. In all of those cases, the lopsided majorities were formed by members of the usually liberal wing joining conservatives. Conservative commentators credit Roberts. "I think those [cases] reflect the success of Chief Justice Roberts's stated intent to promote what he's characterized as judicial minimalism," Cruz said. "I think it's a theme one sees heavily his term." By that, he means Roberts wants to focus on the specific facts of the case, and demands proof that the law has caused harm, rather than finding it unconstitutional on its face. Critics such as Steven R. Shapiro, national legal director of the American Civil Liberties Union, said such a "wait-and-see attitude" means voters' rights must be demonstrably abridged, or an inmate inhumanely executed, before the court takes action. Roberts has also made strategic use of the one real power the chief justice has over this colleagues: the ability to decide who writes the opinion when he is in the majority. He assigned the voter identification case, for instance, to Stevens, and has reportedly urged others to forgo broad pronouncements in the interest of attracting more votes. Cooper said the narrow opinions "really don't establish far-reaching constitutional principles that will be readily and easily applied in cases down the line." And that may be fine for the core of the conservative wing, which could be revisiting them for years. Roberts is 53, Alito 58, and even Justice Clarence Thomas, who has been on the court for nearly 17 years, turned only 60 last week.