Posted on 06/16/2007 8:50:33 PM PDT by nwrep
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.
Thank the base for raising hell and keeping his woman friend off.
The poor dear. If he doesn't like his treatment at FR, maybe he could desist in his frantic efforts to provide permanent legal residence to an untold number of millions of illegals, including felons, he wouldn't have that problem
Harriet Miers was proposed by Bush and squelched by the Senate.
I will not give credit to Bush before I give credit to a GOP Congress.
If I needed proof, you’ve provided it. I rest my case.
So you’re already blaming Bush for any SC appointments made after he leaves office? And what’s “pulling a Nixon”? Bush has made a lot of mistakes, but give him credit where it’s due.
Thank God for stellar conservatives who held George W. Bush's feet to the fire, ensuring that he would appoint a conservative judiciary whether he wanted to or not. Don't forget about the whole Meirs debacle, etc.
It was close though - we could have gotten Meyers (Meiers?)
Sure, but by the same token, he deserves credit for sending Alito. Its not like Alito was automatically next in line in seniority to her. It took Bush to nominate him. Bush rocks on Alito and Roberts. Heck of a job, Jorge!!
Sure, but by the same token, he deserves credit for sending Alito. Its not like Alito was automatically next in line in seniority to her. It took Bush to nominate him. Bush rocks on Alito and Roberts. Heck of a job, Jorge!!
Sure, but by the same token, he deserves credit for sending Alito. Its not like Alito was automatically next in line in seniority to her. It took Bush to nominate him. Bush rocks on Alito and Roberts. Heck of a job, Jorge!!
Sure, but by the same token, he deserves credit for sending Alito. Its not like Alito was automatically next in line in seniority to her. It took Bush to nominate him. Bush rocks on Alito and Roberts. Heck of a job, Jorge!!
Both Alito and Roberts were suggested by the GOP Senate.
After the Harriet Miers debacle, Bush acquiesced to what the GOP Senate suggested.
Hmmmm....
Awful lotta blue sky in this piece.
Personally, I still consider both Alito and Roberts to be largely untested.
Too many 5-4 rulings. If we don’t win in 2008, we’re screwed.
“If we don’t win in 2008, we’re screwed.”
We will win in 2008 if:
1) We stay on Conservative message - America will respond to strength and stability.
2) We stay off the scandal page - we lost because of Abramoff, Foley, and Allen.
He didn’t pull her, at least not publicly. She withdrew her name. Just like Linda Chavez — another underqualified crony appointee — back in 2001.
“Well. I am sure he still thinks Meir’s was a better choice.”
If he still thinks that, his position is as idiotic as his belief in his ‘comprehensive’ give-illegals-amnesty immigration bill.
I don't even know what you mean by "pulls a Nixon." What, are there impeachment hearings that I've missed?
Besides, you are unduly pessimistic about losing to Hillary. I do think that she's likely to be their nominee (barring a Gore entry), but she's got such incredibly high negative ratings that I don't think she'll get ANY of the 2004 Bush states against a reasonably strong candidate. Thus, she loses. IMHO, Fred Thompson is going to be the Republican candidate, and a comparison of how his views stack up vs. her in comparison to the American public gives him the win. Plus, the character and corruption issue are solidly in his favor. Plus he has genuine charisma, vs. her shrillness, arrogance and nastiness. No contest....
and then you have President Thompson appointing successors to Ginsburg and Stevens. That's going to be about as close to a lock as one side is likely to ever get, unless that wimpish liberal Souter also retires.
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