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.
Yep, one of his (and ours - the voters) accomplishments.
IBTBBIT
This is the most significant realignment of the SCOTUS in 50 years.
You have not been paying attention.
Just one more please!
Wonderful response.
I knew someone would manage to snatch defeat from the jaws of victory.
Give us conservatives some credit for objecting to Bush’s choice of Harriet Miers.
She would have been a Sandra Day O’Conner clone.
Please. Bush wanted to put Harriet Miers on the court. He thankfully was thwarted by the party.
Sure, but by the same toekn, he deserves credit for sending Alito.
It's the FR one-trick pony brigade. You can't read any article which even mentions Pres. Bush without them piling on. Great news about the SCOTUS - if only Ginsberg or Stevens (who's got to be at least 200 years old) would retire NOW, it'd be even better.
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!!
He eventually listened to the base on Miers and pulled her. If not for all these recent problems, Miers would have been forgotten.
Bush’s single strongest achievement has been in the area of right to life. He certainly deserves credit for that.
It was like playing a card game of "Old Maid." We missed it...
The odds of getting another Roberts are slim with this Senate.
Thank God the Republican voters really showed the Republican politicians who is boss in the 2006 election. If they hadn't the Dems would still be in the minority. Sarcasm off
Sadly true. And all too many seem ready to do it again, with even more disasterous results.
But they’ll really show ‘em! No victory except absolute victory.
I think they'll find it a Pyrrhic victory.
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