When Chief Justice John Roberts took the helm of the Supreme Court, he indicated he would strive for greater consensus among his new colleagues in handing down decisions, presumably as a way to repair what in many eyes was the Court?s damaged credibility.
Ever since the court, led by Chief Justice William Rehnquist, put George W. Bush in the Oval Office in 2000 by a 5-4 vote on partisan lines, a shadow has hung over it, so Roberts?s intent was a welcome one.
But if more consensus really was his objective, it took a severe blow the other day in the 5-3 decision rebuking President Bush?s right to create new military commissions to try suspected terrorists detained at the camp at Guantanamo Bay.
On such a momentous ruling, one could have wished for more agreement among the nine justices, as Roberts suggested broadly in his earlier appeal for more consensus on the court. Instead, the whole basis for Bush?s virtually unlimited exercise of executive power rested on the judgment of one swing vote, from the usually conservative Justice Anthony M. Kennedy.
The case was not the only recent blow to Robert?s plea for togetherness. In upholding the transparently partisan 2003 redrawing of congressional district lines in Texas a few days earlier, the nine justices went every which way in six separate opinions explaining the decision.
In effect, the ruling swallowed the handiwork of recently resigned House Majority Leader Tom DeLay, in which he engineered a Republican majority in the Texas state legislature that in turn gerrymandered the state to produce six new GOP seats in Congress, making a mockery of the process.
The verb comes originally from such a partisan redrawing of voting districts in early Massachusetts when Elbridge Gerry, a delegate to the Constitutional Convention, was governor of the state. The shape of the district created was said to resemble a salamander. The label didn?t hurt him politically, however. He later became James Madison?s second vice president.
By long accepted practice, congressional redistricting has occurred every 10 years, based on the latest U.S. population census. But only a year after a federal court had redrawn the Texas lines based on the 2000 census, the reconstituted Texas legislature blatantly jumped in and reshaped the map, achieving DeLay?s objective.
Though seven of the Supreme Court?s nine members voted to uphold this sham, the flurry of opinions failed to provide any firm criteria for what constitutes over-the-top gerrymandering. An obvious consequence of the decision may be other states? redrawing lines outside the 10-year cycle, whenever shifting population encourages such partisan action.
The constitutional stipulation of two-year terms for members of the U.S. House of Representatives already assures almost continuing election campaigning in many congressional districts, as incumbents are required to legislate with one eye on their next encounter with the voters. Their advantage over challengers in name recognition and fund-raising, however, often counters such uneasiness.
The two justiceswho dissented from the majority opinion, John Paul Stevens and Stephen G. Breyer, stalwarts of the liberal minority on the court, argued unsuccessfully that the earlier court-imposed redistricting had been “manifestly fair and neutral,” while the Texas legislature?s intercession “violated (its) constitutional obligation to govern impartially.”
Roberts? pursuit of decisions-by-consensus suffered another setback in a second ruling regarding the Texas gerrymandering, with a 5-4 vote throwing out the reshaping of the district in West Texas held by Republican Rep. Henry Bonilla, on grounds it violated the Voting Rights Act.
These and other recent Supreme Court decisions indicate that Chief Justice John Roberts has a long way to go in his reported objective of building greater consensus among his colleagues. At this stage, the Bush White House likely would settle for split decisions going its way from a court obviously bolstered in its favor with the Bush appointments of Roberts and Justice Samuel A. Alito.
Meanwhile, it will no doubt take more than that sought-for greater consensus to erase from Democratic memories, and probably the judgment of history as well, the court?s momentous and controversial split decision that gave Bush Florida?s electoral votes in 2000 ? and the presidency.
Jules Witcover, a Baltimore Examiner columnist, is syndicated by Tribune Media Services. He has covered national affairs from Washington for more than 50 years and is the author of 11 books, and co-author of five others, on American politics and history.
