Hamilton, Madison, and Jay

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Wednesday, June 13, 2007

Tom Goldstein wraps up this Supreme Court term

Wghile most court watching pundits have weighed in on certain cases from this term's high court, Tom Goldstein, of SCOTUSblog, weighs in on the overall term, and the significance of it:

As we enter the last few decision days of the Term – with 17 cases remaining – I want to raise the prospect that the Term will ultimately reveal that the Court’s ideological shift has been far more profound than almost anyone outside the building has realized so far.

Here are the numbers to this point. Eleven cases have been decided by a five-to-four vote on classic ideological lines. Justice Kennedy has cast the deciding vote in each – six times with the right and five with the left. Those results suggest a balanced outcome.

But the numbers are very misleading. In almost all of the meaningful cases decided thus far – measured by their effect going forward – the conservatives prevailed. In particular, three of the five decisions in which Kennedy joined the left (Smith, Brewer, and Abdul-Kabir) were essentially fact-bound rebukes of the Texas courts and Fifth Circuit for their application of the Penry II mitigating evidence rule. Those decisions are similar in their importance to the Court’s various summary reversals of the Ninth Circuit. A fourth (Marrama) decides a pipsqueak of a bankruptcy question.

The only arguably significant decision with that voting alignment is the global warming case (Massachusetts v. EPA), which got a lot of press but may not amount to much. The Court merely told the EPA to consider regulating carbon. And its standing holding is quite fact-bound.

By contrast, the five-to-four decisions in which the conservatives have prevailed have tended to be genuinely significant. Most notable, of course, is the Carhart abortion case, more so for its doctrinal and public significance than the significance of that particular procedure. In Ledbetter, the Court broadly applied the Title VII statute of limitations in the context of a frequently recurring fact pattern.

To the same effect, the three Texas death penalty decisions discussed above pale in comparison to three other capital cases in which the Court adopted structural rules that will limit challenges to capital sentences: Ayers on mitigating evidence; Schriro on the right to an evidentiary hearing; and Uttecht on excluding jurors who have doubts about the death penalty.

But we are not done. The consensus is that the Chief Justice is writing an opinion invalidating the school assignment programs. The federal campaign finance law at issue in Wisconsin Right to Life is likely to be struck down on the same voting alignment.

That would truly be an extraordinary Term, but I get the sense that there may still be more. The fact that Justices Ginsburg and Stevens dissented from the bench in three cases – twice in late May and early June after all the votes had been cast – strongly suggests an exceptionally high level of frustration on the left. (Neither does such a thing lightly.) It seems entirely possible that the remaining cases involving, for example, challenges to public funding of programs with religious components (Hein), search and seizure (Brendlin), and the environment (Defenders of Wildlife) all will be decided five to four, with Justice Kennedy siding with the conservatives.

If that happens -- and I think it is likely that it (or something close to it) will -- the President will have gotten with his appointments precisely the Court he sought and that liberals feared. We can already count on conservative rulings on race, abortion, campaign finance, and the death penalty, and may be able to add to that religion, the Fourth Amendment, and the environment. It would be a memorable Term indeed.

After weeks of beating on the president for his immigration stance, it's now time to praise him for his choices on the high court. Marcie and I fought hard in the 'Sphere's trenches for both Chief Justice Roberts and Associate Justice Alito, arguing that both men were of the constructionist mindset; that they understood and abided by the simple fact that the Constitution says what it means, and means what it says. Thus far, both men have performed their duties superbly.

The surprise of the term is, as Mr. Goldstein points out, Associate Justice Kennedy. Now the lone swing vote on the high court who basically assumed the vacant mantle of former Justic O'Connor, Kennedy has shown that he still has the ability to understand the gravity of many decisions regarding Constitutional jurisprudence. The most notable departure, of course, is the Carhart case.

We know that Roe won't be overturned immediately, and certainly not without painstaking debate. But the success in the Carhart case was significant. Not only did it set a new precedent regarding abortion as a whole -- that not all abortion procedures will be protected under the boondoggle of precendent established by the court -- but it also gave hope to many that abortion may be close to being dealt the death blow. Associate Justice Scalia did note not too long ago that the only way to take Roe down was by kicking in one door at a time.

Then there is also the rumor and conjecture that there may be another retirement before the president's term ends in January 2009. If that happens, it is highly likely that the shift can be made complete, depending on who steps down. Neither Justices Scalia or Thomas have made any mention of a decision to step down, and both of us doubt they will. It is much more likely to see either Justices Ginsburg, Kennedy, or Stevens to step down. The Blog of Legal Times observed that she is not well:

During the interview, Greenburg comments on the health of Justice Ruth Bader Ginsburg noting that this is “not a Justice Ginsburg that I have seen before,” adding that during oral arguments in the case of Hein v. Freedom From Religion Foundation, “all the reporters who covered the oral argument were just struck by the appearance of Justice Ginsburg—it took her a good 15-20 seconds to leave the courtroom, very unusual. Justice [David] Souter kind of stood behind her and helped her out of he courtroom.”

In September of last year, Justice Kennedy had a stent inserted in his arteries, but the doctors say he is doing fine. Justice Stevens has shown considerable frustration with the current composition of the court, especially with regard to Justice Alito. In February of last year, he reportedly had an outburst in which he declared he couldn't "put up with this sh*t anymore." Those frustrations have been corroborated by his law clerks that say he is unhappy. (I'd be unhappy, too, if I were an activist jurist, and I was watching the court shift back to it's proper role of interpreting the law rather than making it up out of thin air.)

For conservatives, and textualist like Marcie and I, this term for the Supreme Court has been better than expected. Granted, the EPA case was a doozy to handle, but as Mr. Goldstein notes, it's not as bad as initially made out to be. But the court has definitely started it's shift, and it's the sort of shift that the Left was afraid of. That means the next nominee, if made by President Bush, or a possible President Giuliani, Thompson, or Romney, will be a dogfight. We shouldn't be worried when that day comes. They will appoint the right person for the job. We both have that much confidence in them, and especially in President Bush. His two choices were vastly superior to his father's choices.

Publius II

ADDENDUM: This is an interesting aside tied to this post, and I just located it from the WaPo. Associate Justice Samuel Alito addressed a luncheon yesterday, and spoke on the subject of free speech:

Two of the court's biggest remaining cases focus on the First Amendment, and while Alito didn't mention either, he did make it clear that any restrictions on speech face a high hurdle with him.

"I'm a very strong believer in the First Amendment and the right of people to speak and to write," Alito said in response to a question of "where's the line" on what can be posted on the Internet. "I would be reluctant to support restrictions on what people could say."

The newest justice, who was protective of speech rights as an appellate judge, added that "some restrictions have been held to be consistent with the First Amendment, but it's very dangerous for the government to restrict speech."

Alito's vote is expected to be influential and perhaps decisive in two of the court's biggest cases concerning free-speech restrictions.

One is the "Bong Hits 4 Jesus" case in which the court is examining whether a principal violated the rights of a student who unfurled that message along a parade route across from the school. It's considered the most important student speech case to reach the court in decades.

And the court is also deciding a challenge to a part of the McCain-Feingold campaign finance law that says corporations, unions and special interest groups may not name federal candidates in ads broadcast in the run-up to elections. A group called Wisconsin Right to Life says that is an unconstitutional infringement on free speech.

The court broadly upheld McCain-Feingold's restrictions in 2003 on a 5 to 4 vote, with Justice Sandra Day O'Connor in the majority. Because Alito replaced O'Connor, his vote is seen as key in the new and specific challenge.

If Justice Stevens was irritated before, these two cases and how Justice Alito views the First Amendment's free speech clause may send him right over the edge.

Publius II


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