Erwin Chemerinsky on SCOTUS trends: "Moving to the Right, Perhaps Sharply to the Right"

OCTOBER TERM 2008 LACKED the blockbuster decisions of the prior Term, in which the Court ruled that the Second Amendment protects a right of individuals to possess firearms apart from militia service, held a key portion of the Military Commissions Act of 2006 to be an unconstitutional suspension of the writ of habeas corpus, and concluded that the death penalty for child rape is cruel and unusual punishment. But the recently completed Term contained an exceptionally large number of decisions that changed the law in areas that affect lawyers and judges in their daily work. Strikingly, practically all of these rulings – in areas such as the federal-court pleading standards in civil cases, the scope of the exclusionary rule, and the protections from employment discrimination – moved the law in a more conservative direction.

There is an easy explanation for this: Justice Anthony Kennedy joined the four most conservative Justices to create 5-4 majorities in each of these cases. This year, like in each of the four Terms in which John Roberts has been Chief Justice, it was the Anthony
Kennedy Court. The Court decided 75 cases after briefing and oral argument this Term. In 23 of them, the Court split 5-4 – and Justice
Kennedy was in the majority in 18 of these, more than any other Justice. Moreover, Justice Kennedy was in the majority in over 92% of all cases this Term, again far more than any other Justice.

Perhaps the most revealing statistic is that in 16 of the 5-4 cases, the Court split along ideological lines, with Chief Justice Roberts and Justices Scalia, Thomas, and Alito on one side and Justices Stevens, Souter, Ginsburg, and Breyer on the other. Justice Kennedy sided with the conservatives in 11 of these 16 cases. Indeed, in the most important cases concerning civil litigation, criminal procedure, employment discrimination and civil rights, Justice Kennedy voted with the conservatives, often to change the law...

Most expect that Justice Sotomayor will generally vote as Justice Souter did, especially in the most controversial cases, and thus will not change the overall ideological balance of the Court. But the Court is a small group, and perhaps there will be instances where by virtue of her life experiences and persuasiveness her presence will change the outcome and the direction of the law. Perhaps there will be instances where she will persuade Anthony Kennedy to join the more liberal Justices in situations where David Souter could not. Although her presence on the bench will be striking and visible, this, perhaps her most profound effect, will be invisible to the press and the public.

http://www.greenbag.org/v12n4/v12n4_chemerinsky.pdf

I have not ever forgiven him for that.

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