The October Term of the Sup. Ct. might redefine the court as less conservative

ALAN BOCK Sr. editorial writer The Orange County Register   Sept. 30, 2007

Tomorrow, the traditional first Monday in October, the U.S. Supreme Court once again will begin hearing cases that may have more influence on how we are governed over the long haul than all the deliberations and fulminations of our elected representatives in Congress.
The upcoming term just might create confusion as to the ideological character of what might be called the Roberts-Alito court in acknowledgment of the two newest members, who seem to be fairly reliable conservatives, as the term is commonly understood as applied to judicial decisions.
During the 2006-07 term, generally viewed as marking a decided shift to the right, the high court might more accurately have been called the Kennedy court, as Justice Anthony Kennedy was the deciding vote in all the major hot-button decisions.
Confounding Chief Justice John Roberts’ initial desire to preside over a court that, for the most part, issued narrow decisions supported by a preponderant majority of the nine-person court, in the 2006-07 term fully one-third of the court’s decisions were by a 5-4 margin. In all 24 of those 5-4 splits, Justice Kennedy was in the majority, making him the swing vote par excellence. In fact, he was in the majority in all but two of the cases the court decided.
In 13 of those 5-4 decisions, all the court’s acknowledged conservatives – Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas – were in the majority, including the most prominent hot-button decisions involving abortion and the use of race in school admissions and assignments. In addition, the Ledbetter case limited back pay as a remedy for employment discrimination, and the Wisconsin Right to Life case acknowledged a First Amendment issue when it came to campaign finance regulation, supporting issue advertising that mentioned candidates, without urging a vote for or against, in the final days of a campaign.
The court’s liberals – John Paul Stevens, Stephen Breyer, David Souter, and Ruth Bader Ginsburg – were in the majority in only six of the 5-4 decisions, and four of those were Texas death penalty cases. The only important 5-4 liberal victory was in Massachusetts v. EPA, which directed the Environmental Protection Agency to regulate tailpipe emissions in light of concern over global warming.
So the court has turned to the right? The cases scheduled for decision this coming term could change that perception.
The most significant case that could alter perceptions could be the Guantanamo detainee cases the court agreed to hear in June after declining to take them up in April. In Al Odah v. United States and Boumedienne v. Bush, the District of Columbia Circuit appeals court held that the Military Commissions Act of 2006 properly denied the right of habeas corpus (to have the reasons for one’s detention heard in a civilian court) to foreign detainees at Guantanamo. These decisions were in substantial tension with the Supreme Court’s decisions in Rasul v. Bush and Hamdan v. Rumsfeld. It seems unlikely that the Supreme Court would have granted rehearing and certiorari (contraction of a Latin phrase meaning “to make sure.” An appellate court issues a writ of certiorari in response to a petition from an interested – usually the losing – party in a lower-court case. “Granting cert” means agreeing to review a case.) in these cases unless it intended to reverse the lower court – although any predictions regarding what the high court will do should be taken with a grain of salt.
As Tom Goldstein, in charge of Supreme Court litigation at the law firm Akin Gump Strauss Hauer & Feld and editor of the influential (and highly useful) SCOTUSblog.com Web site, pointed out at a forum at the Cato Institute two weeks ago, “the next-highest-profile case involves the crack-powder disparity in sentencing ( Kimbrough v. United States).” The U.S. Sentencing Commission in the 1980s during the crack cocaine epidemic/panic laid down guidelines for sentencing for crack cocaine that were 100 times as punitive (by weight) as for powder cocaine. The court is likely to overrule that indefensible guideline.
Then there’s a child pornography case. In United States v. Williams, a man shared nonpornographic images of children with an undercover federal agent and promised but didn’t deliver genuine child pornography. He was convicted of violating the PROTECT Act, which makes it a crime to distribute something that purports to be child pornography even if it isn’t. The 11th Circuit appeals court struck down the statute as overbroad and vague. The Supreme Court – especially in light of its decision in a similar set of circumstances in Ashcroft v. Free Speech Coalition– could well agree.
So we could have three high-profile cases in which the headlines will be (as Goldstein put it), “that accused terrorists deserve more rights, crack dealers deserve lighter sentences, and the First Amendment protects would-be child pornographers.”
In Kennedy v. Louisiana, the court could very well rule that Louisiana’s law authorizing the death penalty for child rape is unconstitutional. That would be in keeping with court precedents, but the crime was brutal (rape of an 8-year-old) and such a decision could be unpopular.
The Supreme Court has also agreed to hear District of Columbia v. Heller, the case in which the D.C. Circuit court overturned the District of Columbia’s handgun ban and sever restrictions on owning rifles and shotguns. The Supreme Court has not issued a significant Second Amendment decision since 1939 ( U.S. v. Miller), which was hardly a model of clarity. Since then scholarship has evolved. The District clings to the theory that the right to keep and bear arms is tied only to membership in a state militia, while an increasing number of scholars support the position elucidated by the D.C. Circuit, that the right is an individual right, and states cannot regulate it too strictly.
The D.C. gun-ban case is being heard because there is a disagreement among federal appellate courts over interpretation of the Second Amendment. That seems to be a key criterion for the high court to agree to hear a case these days. During the heyday of the liberal Warren-court the high court took a significant number of cases because it wanted to use them to move the direction of the law.
The court last week also agreed to review two cases ( Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita) involving an Indiana law that requires voters to present a government-issued photo ID before voting. The 7th Circuit upheld the law, with the majority arguing that it imposed no genuinely significant burden and a dissenter arguing that voter fraud is a minor problem that doesn’t warrant such a Draconian remedy.
Ex parte Medellin is a case with a complex history involving a Mexican sentenced for rape and murder who argued that an International Court of Justice decision mandated that he should have had access to Mexican consular officials before trial. President Bush then directed state courts to honor that decision, but the Texas courts held that he didn’t have that power.
In U.S. v. Watson, the defendant purchased an unloaded firearm with illegal drugs. He was convicted of using a gun in a drug transaction. The Supreme Court will decide whether Congress really meant that or had gunslinging in mind.
The Supreme Court evolves gradually rather than suddenly. It will take more than one term to determine whether the Roberts-Alito-Kennedy court is as conservative as advocates hope and critics bemoan. Interestingly, more because of the selection of cases than the thinking of the justices, it could develop a reputation as surprisingly liberal and become a campaign issue just about the time presidential campaigning heats up next summer.

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