Sunday, July 1, 2012

SCOTUS Roundup

Lots of term-end analyses to browse through on this 105 degree day. Particularly interesting is something a former student of mine pointed out way before the mainstream media caught on: regarding the healthcare decision from Thursday, it looks like Chief Justice Roberts initially sided with the conservatives on the court before reneging and going the other way. Read this CBS news story.

Also, make sure you head to SCOTUSblog for a fantastic summary of the year that was at the court. The NYT also nails it.

From Adam Liptak:

A look back at the term just concluded reveals that the court, which has had a reputation for predictable ideological splits, has entered a new phase. This term, it sometimes worked with striking unanimity and assertiveness to review the actions of the other branches of government. Partly for this reason, its relationship to the Obama administration has often been a distinctly adversarial one. 

When the court was divided, as it was in the immigration and health care cases, its voting often did not track the usual patterns. There is good evidence that Chief Justice John G. Roberts Jr. has worked hard to insulate his institution from the charge that it has political motivations, an accusation that it is especially vulnerable to because the court’s five more conservative members were appointed by Republican presidents and its four more liberal ones by Democrats. 
Not so sure about that. There have been a lot of  "in order to save the court in the eyes of the public, Roberts is becoming Souter" analogies, which are fundamentally silly. The chief justice is as doctrinaire as he ever was, and as I pointed out Friday, even the health care ruling was laced with lots of conservative and libertarian goodies. 

But Liptak points to an interesting emerging alliance between Kennedy and Kagan.
Justice Kagan, the newest member of the court, rose in influence. In closely divided cases, she voted with the court’s swing member, Justice Anthony M. Kennedy, more than any other member of the court. Justice Kennedy himself had an unusually balanced term, voting as often with the court’s liberal wing as with its conservative one in 5-to-4 votes along ideological lines.  

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.
Several of the cases in which Justice Kennedy joined the liberal bloc involved the rights of people accused and convicted of crimes. This year, the court turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice, in which plea bargains are the norm and harsh sentences commonplace. 

“What the court really was doing this term was bringing the Constitution to previous blind spots in the criminal justice system,” said Jeffrey L. Fisher, a Stanford law professor who argues frequently before the Supreme Court. 

In a 5-to-4 decision concerning sentences of life without parole for juvenile offenders, Justice Kennedy entrusted the majority opinion to Justice Kagan, highlighting a notable alliance. Over all, the two voted together 83 percent of the time. But that alliance did not begin to approach the cohesion on the conservative side. 
Still, it is fascinating and portends some other possible major changes in future decisions. The restriction on the get tough mania regarding juvenile sentencing has been Kennedy's baby since 2005. That he trusted Kagan with the opinion speaks volumes about an unusual alliance going forward.

Stay cool out there.

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