POLITICS
07/06/2008 05:12 am ET Updated May 25, 2011

McCain Win Could Mean A "Fundamental Shift" To A Consistently Conservative Supreme Court

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.

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