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Supreme Court More Conservative, Fragmented

For the first time in 11 years, the Supreme Court had a new membership, a new ideological makeup, and a new chief justice. The court wrapped up its current term with a bang, issuing a historic decision on presidential power by striking down military tribunals for detainees at Guantanamo Bay.

With the departure of Justice Sandra Day O'Connor and the arrivals of Chief Justice John Roberts and Justice Samuel Alito, the court shifted to the right, as expected.

It would have moved far more dramatically to the right had it not been for the court's new swing justice, Anthony Kennedy. It's a role Kennedy has played in the past. But he's been more reliably conservative than O'Connor, and less likely to defect to the more liberal bloc of justices.

For instance, Kennedy's vote prevented the court's four conservatives, including Roberts and Alito, from essentially gutting the Clean Water Act as it has been enforced for more than 30 years.

Kennedy's vote was pivotal in upholding most, but not all, of the contested Texas redistricting plans. He also joined O'Connor and the court's liberals in the first indication of skepticism about the Bush administration's assertion of executive power, the administration's claim that it could, in essence, override Oregon's assisted-suicide law. And in the court's blockbuster Guantanamo case, Kennedy rejected almost every assertion of unilateral executive power claimed by President Bush in setting up war crimes trials outside the code of military justice.

Kennedy is expected to play a pivotal role in the court's next term as well, in cases involving voluntary racial integration of schools, abortion, and federal regulation of the air, and this time he may be on the other side.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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