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High court quickly grew contentious

Expect more of the same after a term marked by dustups over Guantanamo Bay, the death penalty and wetlands.

Published July 1, 2006

WASHINGTON - Last October, long-serving liberal Justice John Paul Stevens welcomed conservative Chief Justice John Roberts to the court by wishing him "a long and happy career in our common calling." In February, it was Roberts' turn to welcome fellow conservative Samuel Alito with the same collegial greeting.

Yet for all the talk of consensus and harmony on the new Supreme Court, the justices had fractured rulings on some of the most contentious cases of the court's term.

And this transitional year likely served as a mild prelude to far bigger dustups to come.

Roberts, the smooth and savvy chief justice, promised at his confirmation hearings last September to be a "modest" justice rather than an activist.

Roberts has spoken publicly of his desire to achieve unanimity through narrow rulings that would offer "clarity and guidance." And he has had some success, evidenced by a healthy share of unanimous opinions.

Even some cases that were expected to split the court - on abortion, campaign finance and disabled inmates, for example - were resolved unanimously and without creating upheaval.

But as more difficult cases trickled out before the justices began their summer break on Friday, it became clear that "the early buzz of peace, love, harmony and Kumbaya was probably overstated," said Ohio State University law professor Douglas Berman.

In a 5-4 case on Monday upholding Kansas' death penalty law, the four liberal dissenters called the statute "obtuse by any moral or social measure." Justice Antonin Scalia countered that the liberals were contributing to international "sanctimonious criticism of America's death penalty."

In a 5-3 ruling on Thursday, the court's last day, moderate Justice Anthony M. Kennedy joined liberal members in finding that President Bush had overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees. Justice Clarence Thomas underscored his strong opposition by reading his dissent from the bench for the second time in his 15-year-career.

In a wetlands case, the court produced five separate opinions covering 100 pages. Roberts lamented that, because of the muddled result, interested parties "will now have to feel their way on a case-by-case basis."

The divisions aren't just along liberal-conservative lines.

Within the reinforced conservative wing of the court, there are strong and sometimes conflicting opinions.

Scalia took fellow conservative Alito to task for making "illegitimate and ill-advised" use of legislative history in one opinion. In another case, Alito faulted Scalia for making "a subtle but important mistake" in his analysis of a defendant's right to counsel.

The jurist to watch is 69-year-old Anthony Kennedy, who has been on the bench nearly two decades. This term, Kennedy has provided the fifth vote on some of the court's toughest cases, including the death penalty, Guantanamo and wetlands cases.

More often than not, he has sided with the conservatives. Court watchers expect that trend to be more pronounced next term, when the docket includes contentious issues such as affirmative action and a federal ban on late-term abortion.

Senate Majority Leader Bill Frist, R-Tenn., said he will introduce legislation after the July 4 congressional recess to authorize military commissions and appropriate due process procedures for detainees held at Guantanamo Bay, Cuba.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., introduced a bill Thursday that did essentially the same thing.

"To keep America safe in the war on terror, I believe we should try terrorists only before military commissions, not in our civilian courts," Frist said.

The White House said Friday the prison at Guantanamo Bay will remain open until the United States deals with the terror suspects being held there.

President Bush had said he wants to close the detention center but was waiting for a Supreme Court decision about his plan to put some Guantanamo detainees on trial before military commissions. The high court ruled the plan was unconstitutional because the commissions were not authorized by Congress and violated international law.

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