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.Goldstein may indeed be right in his assessment. I personally thought Justice Kennedy would move further to the center after Roberts and Alito joined the Court in an effort to moderate the Court's decisions. It looks like Indiana's Jim Bopp is going to get the opinion he's looking for in his Wisconsin Right to Life campaign finance case if Goldstein is correct.
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) is 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.
Hat tip to Indiana Law Blog.