Copyright 2004 Journal Sentinel Inc.  
Milwaukee Journal Sentinel (Wisconsin)
August 8, 2004 Sunday ALL EDITION
SECTION: CROSSROADS; Pg. 05J

LENGTH: 801 words

HEADLINE: Supreme splits: Conservative justices often disagree

BYLINE: THOMAS M. KECK

BODY:
The justices of the Supreme Court are on vacation, having recessed for the summer in late June. As is their custom, they issued some of their most significant and contentious decisions at the end of the term, just before leaving town. This generally causes a flurry of attention in the press, and this year was no different.

Despite all the attention, however, most commentators ignored the most revealing fact about the seven decisions announced in the term's final week: In only one of them -- that of the alleged "dirty bomber" Jose Padilla -- did the court split neatly along conventional political lines, with the five most conservative justices rejecting Padilla's arguments on jurisdictional grounds and the four most liberal justices offering a biting dissent.

This division between the liberal and conservative justices has been familiar to court watchers for some time now, but it is not the most significant division on the current court. Of much greater import has been a split among the conservative justices themselves. In each of the other six cases decided during the final week, the outcome of at least one important legal issue was determined by a disagreement among the conservative justices.

In the free-speech context, Justices Anthony Kennedy and Clarence Thomas sometimes join with their more liberal colleagues, leaving Sandra Day O'Connor, Antonin Scalia and William Rehnquist in dissent, as in this year's Internet pornography ruling.

On certain issues, the government's infringement of a liberty deeply rooted in our legal traditions leads Scalia to join his more liberal colleagues as well, as with his stirring defense of the "great writ" of habeas corpus in Hamdi vs. Rumsfeld. In this case, in fact, the Bush administration's assertion of executive power reached so broadly that four of the conservative justices (and all four liberals) were persuaded that the court must step in, with only Thomas arguing for deference to the president.

Most common, however, have been the cases in which either O'Connor or Kennedy (or sometimes both) has defected from the conservative bloc to enforce a constitutional right in the liberal Warren Court tradition.

The most momentous decision of the court's final week came in Rasul vs. Bush, as O'Connor and Kennedy joined their liberal colleagues to form a six-justice majority holding that foreign nationals captured on an overseas battlefield and detained abroad were entitled to challenge their detention in the federal courts. This was a significant defeat for the Bush administration, and it prompted Scalia, Thomas and Rehnquist to denounce the court for its lack of deference to the executive branch.

Though it didn't garner as many headlines, the court's decision in Sosa vs. Alvarez-Machain is likely to be equally significant in the long run. The justices' votes were fractured across a number of different issues, but on the most important point, O'Connor and Kennedy joined the liberals to hold that American courts can enforce international-law-based norms (such as the prohibition of torture) even if they have not specifically been enacted by Congress.

Scalia's opinions in this case and in Rasul, each joined by Thomas and Rehnquist, voiced the long-standing conservative argument that "this court seems incapable of admitting that some matters -- any matters -- are none of its business." Thomas carried this theme even further in his solo dissent in the Hamdi case, complaining that his colleagues were reaching far beyond the realm of judicial competence and dangerously handcuffing the commander in chief.

Despite this rhetoric, however, Scalia, Thomas and Rehnquist are no more restrained than any other judges. They demand judicial deference when the court is asked to defend liberal conceptions of legal rights, but they are perfectly willing to exercise judicial power to defend conservative conceptions of legal rights.

The division among the court's conservative justices is not a division between activists and practitioners of restraint. It is a division between those who regularly support the active defense of constitutional rights when they cut in a conservative direction, but almost never when they cut in a liberal direction, and those who regularly support the active defense of both liberal and conservative rights claims.

If and when President Bush has the chance to nominate a Supreme Court justice, it will matter a great deal whether he chooses another O'Connor or another Scalia.

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Thomas M. Keck is an assistant professor of political science at the Maxwell School of Citizenship and Public Affairs at Syracuse University and is the author of the forthcoming book "The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism."

LOAD-DATE: August 9, 2004