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.
And who would Romney appoint?
“We” have very little control about who appears on the scandal page. People are imperfect, and the MSM is highly selective about who and when scandals are allowed to develop. If a Republican gets a speeding ticket, it is a scandal. If a Democrat is found with $100,000 in bribe money in his freezer, it is not a scandal (at least until after the election).
The only way to truly combat this activism on the part of the MSM is to grow the new media and cheer the demise of the old.
His only conservative legacy.
Kennedy was considered to be a reliable conservative when he was appointed. It was only after he came to Washington, that he "grew". It may be that when faced with reasoned conservative arguments he is reverting to his base. The Washington social and media life is seductive, but not necessarily pervasive.
Well, at least AFTER the THRASHING we gave him over Miers.
Ah....a bot feel-good thread, I see.
The conservative judiciary, at least on the SCOTUS, has nothing to do with Jorge. The man wanted that incompetent Harriet Miers instead of solid, conservative judges. It was FReepers and the conservative grassroots movement that forced him to backtrack and appoint judges like Roberts and Alito.
Don’t allow the facts to sully your feel-good thread in any way.
Thank God we chided him out of the feeble Meirs choice.
Sadly true. And all too many seem ready to do it again, with even more disastrous results. hsalaw
Relax guys. I'm not going into details. But. With a FDT dominating victory in '08, the Senate and House follows. The Dems -- like the Soviet Union of the '80s -- is hollow and fading. Hillary and Barak are game show hosts at best.
For this judicial victory, he will rightly be remembered as a President who slowed, perhaps even stopped communism in America.
Now, let’s keep up the pressure on the border and illegal immigrant issues so he will not be El Presedente Boosh in history books.
Do it for Presdient Bush.
You sound young and naive. I hope you're right.
Myself, I think we should have held on to our lead when we had it.
The same feckless GOP Congress who formed the gang of 14 and has failed to confirm many of the President’s nominees to the Circuit Courts?
The same feckless GOP Congress who confirmed more circuit nominees in 97-98 under Clinton than 05-06 under Bush?
Sorry, with the whole of the judiciary, the President has done his job here, almost perfectly. The rest of the bunch failed.
Better that than the foolish idiocy of Ford, Reagan and Bush Sr. with Stevens, O’connor, and Souter.
I guess you can’t bash the first as he was never elected.
That is a patently stupid statement. Of course it has everything to do with Jorge and the GOP Senate. Without him, you think we would have Roberts and Alito, if Clinton were in the White House? Also, after the Miers fiasco, its not like Alito was some automatic choice that was picked up by the Senate. Jorge had to select and nominate Alito, out of dozens of potential nominees.
Sorry, not so fast. It is the gang of 14 that resulted in Priscilla Owens, Janice Rogers Brown, and lately Brett Kavanaugh on the Circuit Courts. It is thanks to the last 2 that the DC gun ban was thrown out.
gosh the anger in your response is extremely evident!you sound so bitter about Bush you cant see anything good hes done-which far outweigh his mistakes-John Roberts was a stunning pick and done so purposely-not by accident as you portray-and Meirs in my opinion was a bait and switch-you dont have any idea as to how she wouldve judged these issues-yet your crystal ball lets you make predictions that she was a liberal!with no evidence-maybe the immigration issue is what you dont like yet time and time again Bush said he was pro -immigrant and was against mass deportation-when he was running for office!!!!it isnt like he lied or pulled a fast one it was a known fact !now I take it either your a communist or just dont respect democracy -because BUSH was voted in by your peers -so what your getting is the will of the majority of American people-
how do you know Meirs was a Sandra clone?wheres your evidence?she had just as much conservstive record as John Roberts did -we didnt know anything about this guy when he was nominated-I guess Bushs’ record on the appeals courts count for nothing-and his choice for SCOTUS(Meirs) woulda beena blazing liberal like all those appeals court nominees-’sarcasm’
his only conservative legacy—good enough for the next 25 yrs or so -likely more and your complaining?he has changed America more so than Regan -which in my opinion was a dreamer who never reached goals like Bush-reform Scotus and appeals court-Education enhancement -Free Trade-head on battle with Islamic Fundementalism-path to citizenship for immigrants -hes been a great awesome president-and he met almost all his goals -which were probably different then yours but hes achieved what he set out to do -if you mention Iraq he said from the very begining that it would be the next presidents job to handle it-and likely the rest of our future presidents for God knows how long-
me too-but the decision on partial birth abortion really swayed me in their favor if you look at the way they overturned precedent (health issue)it was quite a victory-
This time their going to really show the GOP by getting HelleryCare and a 60 vote majority. That will really stick it to the GOP!!
Pray for W and Our Troops
There have always been "conservatives" that became sudden liberals after the appointing president left office. I will withhold my final judgment for hat 25 years
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