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Speaker 1: Good morning everyone. I want to welcome you to the ACLU's Annual Supreme Court
Breakfast. Steve Shapiro, our legal director, will give you a little bit of assessment of
where the Court has come so far and what we might expect from the coming term. I'll now
had the program over to Steve. Steven Shapiro: I think it is no great secret
that this is a Supreme Court that is very closely divided along ideological lines. We
are still learning more about the personality and judicial temperament of this court. It
will be the beginning of John Roberts' fourth term as Chief Justice of the United States
Supreme Court. It remains, nonetheless I think, very much Justice Kennedy's Court still. As
Justice Kennedy goes on major issues so goes the Supreme Court.
It is a different court than the Rehnquist Court in several ways. It is, I believe, a
fundamentally more conservative court than the Rehnquist Court and the Rehnquist Court
itself was quite conservative. It is also a more aggressive court in its willingness
certainly to take on not only past precedents but recent precedents and flex its judicial
muscle. Part of that I think is a reflection of John Roberts who has been much more aggressive
as a Chief Justice than I, at least, had expected him to be.
Part of that I think is because of the role that Justice Kennedy plays as the swing vote.
Justice Kennedy as a swing vote is very different than Justice O'Connor was a swing vote on
the Supreme Court. Justice O'Connor really believed in incremental justice, she moved
in small steps. Justice Kennedy has a much more grandiose vision of the court's role
and write much broader and more sweeping opinions than Justice O'Connor did during her long
tenure on the Supreme Court. What that means is when Justice Kennedy joins
with the conservative wing of this court with Chief Justice Roberts and Justice Scalia,
Thomas, and Alito you get a five person majority that is capable of writing very broad, aggressive,
and very conservative opinions. Adversely when Justice Kennedy joins with the liberal
wing of the court you can get very broad opinions in the other direction.
It is a Supreme Court where it is at least plausible that there will be some retirements
from the court sooner rather than later if for no other reason than Justice Stevens is
88 years old. As remarkable a physical and mental specimen he is, he probably cannot
go on indefinitely. Any change in the composition of the court has the capacity, depending upon
who retires, to alter this very delicate, delicate balance.