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High Court Leaned a Little to the Right

In the term that ended Monday, the Supreme Court shifted more to the right, making it harder for people to bring civil rights claims, rejecting challenges by environmentalists and raising the standard for older workers alleging bias on the job.

One of its more consequential decisions came on the last day of the term, when the justices imposed a new hurdle for employers trying to scrap tests and other seemingly neutral practices that favor whites at the expense of racial minorities, or men at the expense of women.

Even in the cases where the Roberts Court did not rule as conservatively as expected, it trimmed legal remedies. Although a recent ruling said school officials' strip search of an eighth-grade girl violated her rights, the majority nonetheless decided she could not obtain money damages because the officials made a good-faith mistake about the law. Though the court spurned a constitutional challenge to the landmark Voting Rights Act, it created an opportunity for counties and other political entities to get out from under federal scrutiny of their election laws.

"There has been a modest evolution toward narrower, less sweeping opinions," Harvard University's Richard Fallon said. "Roberts' style in dealing with iconic precedents is to distinguish the older cases, leave them standing, but start tacking in the opposite direction - as in the (voting rights) case."

Fallon said Monday's case similarly shows the court pivoting away from precedent yet leaving the long-term effects uncertain.

"The Roberts Court (has shown) a desire to close the courthouse door," said Stanford University law professor Pamela Karlan, who noted that the court boosted the requirements in early litigation stages for people alleging a range of civil rights violations.

In one such case, the court ruled against a Pakistani man trying to sue former attorney general John Ashcroft for alleged abusive treatment in a federal jail after the Sept. 11, 2001, terrorist attacks. The decision sets a high bar for people trying to hold officials accountable for acts of abuse by underlings.

Many of the conservatives, including Chief Justice John Roberts and senior conservative Justice Antonin Scalia, have long argued that aggrieved individuals should in many situations look to legislators, rather than appointed judges, to solve societal problems. In a dissenting opinion this term, Scalia scoffed at the "quixotic quest to right all wrongs and repair all imperfections through the Constitution."

Opening on the bench

This was the last term for Justice David Souter, who joined the court in 1990. Roberts bid a fond, public farewell to his colleague who is eagerly returning home to New Hampshire, or as Roberts said, trading "white marble for White Mountains."

President Obama selected New York-based U.S. appeals court Judge Sonia Sotomayor to succeed Souter. Confirmation hearings will begin July 13.

Sotomayor, or any Democratic appointee in the near future, is unlikely to change the court's tilt.

The conservatives are the younger of the black-robed nine and less likely to retire. Roberts is 54; Samuel Alito, 59; Clarence Thomas, 61; Anthony Kennedy, 72; and Scalia, 73. Of the liberals, Stephen Breyer is 70, Ruth Bader Ginsburg is 76, and John Paul Stevens is 89. Sotomayor is 55.

Kennedy remains the court's key swing vote. As he has in the terms since moderate conservative Sandra Day O'Connor retired in January 2006, he was on the winning side of the tightest, most closely watched cases.

Kennedy mostly voted with his colleagues on the right, including to reject a constitutional right for prisoners seeking access to evidence for DNA testing to try to prove their innocence.

Kennedy was with the conservative bloc that voted to give Arizona education officials a chance to lift a federal judge's order to change the state's English-language program. The case stemmed from a lawsuit by parents in the border city of Nogales.

Breyer, one of the four liberal dissenters, read a lengthy statement from the bench, pointing to deficiencies in programs for Spanish-speaking learners and raising larger questions about U.S. judges' ability to spur improvements in schools, prisons and other institutions.

Other cases

Environmentalists lost a series of cases, including a challenge brought by the Natural Resources Defense Council against naval sonar exercises off the California coast that could harm marine life.

The justices also ruled against environmental group Riverkeeper when they decided the Environmental Protection Agency could consider the costs of upgrades in setting standards for power-plant intake structures that might trap aquatic life.

The four liberals vigorously protested that decision, as well as two involving job discrimination.

The majority ruled that an employee claiming age discrimination must show that the bias was the crucial reason for the adverse job action, not just one of many factors. The ruling said the burden of proof does not shift to the employer to show a legitimate reason for the action, as some lower courts had ruled and as is the practice in race and sex bias disputes. Dissenters said the majority went beyond the question in the case and engaged in "unnecessary lawmaking."

Monday's ruling in the closely watched case from New Haven, Conn., also drew a sharp exchange. Kennedy said the decision "clarifies" the law. Ginsburg countered that the majority "stacks the deck" against employers trying to remedy hiring practices that shut out minorities or women.

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