Roberts Steered U.S. Supreme Court as It Trimmed Precedents

By Greg Stohr

June 29 (Bloomberg) -- John Roberts, ending his second term as U.S. chief justice with a ruling restricting school integration, spearheaded a shift in American law that cut back precedents from a more liberal era.

On abortion, campaign finance and student speech, the Supreme Court took Roberts's preferred approach, stopping short of overturning earlier decisions while limiting their force. In each case, he allied with Justice Samuel Alito, another appointee of President George W. Bush.

``This has been an extraordinarily successful term for conservatives and a very significant failure for the left on the court,'' said Tom Goldstein, a Supreme Court specialist at Akin Gump Strauss Hauer & Feld in Washington.

In the court's final week, Roberts wrote three of the term's highest profile decisions and delegated a fourth to Alito. Roberts wrote for the court in restricting student speech rights and bolstering the ability of interest groups, including corporations, to air pre-election advertisements.

Roberts, 52, also wrote the court's lead decision yesterday limiting efforts to make public schools more racially diverse. The decision struck down two school-district programs that used race as a factor in assigning students to schools.

``I do think it's a conscious effort to assert his leadership,'' said Roy Englert, a Washington appellate lawyer with Robbins Russell Englert Orseck & Untereiner.

Solidified Majority

Roberts and Alito, 57, who finished his first full term as retired Justice Sandra Day O'Connor's successor, solidified a conservative majority that typically left Justice Anthony Kennedy as the court's swing vote.

In the race case, Kennedy, 70, joined only part of Roberts's opinion, writing separately to say that school districts could work toward racial diversity through other means.

Kennedy was in the majority in all 23 of the court's 5-4 decisions this term, according to statistics compiled by Goldstein's law firm, Akin Gump. In 68 cases, he dissented only twice, the fewest since Justice William Brennan dissented twice in the 1968-69 term.

Kennedy ``has such complete control it is extraordinary and almost unheard of in American jurisprudence,'' Goldstein said.

Roberts's approach didn't always win plaudits from the court's most conservative members, Antonin Scalia and Clarence Thomas. In the campaign finance case, Scalia said he agreed with the court's liberal bloc that Roberts's opinion had, without saying so, effectively overruled a 2003 decision that upheld a federal law limiting pre-election ads.

Left Intact

Roberts, writing only for himself and Alito, left the 2003 decision intact while saying the law couldn't be constitutionally applied to three Wisconsin ads.

``This faux judicial restraint is judicial obfuscation,'' Scalia, 71, wrote in a separate opinion that Kennedy and Thomas joined.

That basic lineup, featuring a 5-4 majority with separate opinions among conservatives, was a recurring one. In upholding a ban on what critics call ``partial-birth abortion,'' Roberts, Alito and Kennedy stopped short of explicitly discarding a 2000 precedent that Scalia and Thomas, 59, would have overturned.

Similar divides took place in the abortion and student speech cases, as Roberts and Alito refused to overturn precedents their conservative colleagues would have jettisoned.

``What has been intriguing has been the split between Roberts on the one hand and Scalia and Thomas on the other,'' said Cass Sunstein, a law professor at the University of Chicago. Unlike his two colleagues, ``Roberts typically favors sticking with precedent.''

Consistent Coalition

Still, Roberts, like Alito, sided with Scalia and Thomas in case after case, at least on the outcome. The court divided 5-4 on ideological grounds in 19 cases this term.

Roberts has ``been unrelenting in his conservative voting pattern, at least in the big cases,'' Sunstein said.

The ultimate test may come in future years when Roberts and Alito are asked more directly to overturn landmark rulings, such as the 1973 Roe v. Wade abortion-rights decision.

On issues of race, Roberts left no doubt of his conservative leanings. He said yesterday that the 1954 Brown v. Board of Education ruling, which sought to end segregation in American schools by abolishing the notion of ``separate but equal,'' now restricts integration efforts.

``The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,'' Roberts wrote.

The court stopped short of barring school districts from making race-conscious decisions. Kennedy said districts can take such steps as locating schools in areas that would attract a diverse student body.

Segregated Housing

But the decision strips school boards of a tool for offsetting the impact of segregated housing patterns. Lawyers say assigning pupils to schools by race is common, probably involving hundreds of districts and millions of children.

The schools case and other high court opinions this term have left critics seething.

That includes the eight Democratic presidential candidates, speaking at a forum last night in Washington, who were critical of the court's ruling.

The decision ``turned the clock back'' on the 1954 ruling that outlawed segregation, said New York Senator Hillary Clinton, 59. Former North Carolina Senator John Edwards, 54, said it failed to take into account the ``two public school systems in America: one for the wealthy, one for everybody else.''

Illinois Senator Barack Obama, 45, who is black, said that if it weren't for the Supreme Court ruling 53 years ago that sparked desegregation of public schools ``I would not be standing here today.''

``When they were nominated, John Roberts and Samuel Alito insisted they would be neutral umpires,'' Senator Edward Kennedy, a Massachusetts Democrat, said in a statement this week. ``Now that they are on the Supreme Court, every big call seems to go in favor of corporate and government power, and against ordinary citizens.''

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net .

Last Updated: June 29, 2007 00:13 EDT

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