A Look at the Supreme Court's Terms

The First Monday in October is the traditional starting date for the Supreme Court's Term. Tom Goldstein looks at the upcoming term and discusses the alarm that those on the left are feeling and tells them, more or less, to relax.

I am not trying to rewrite the history of the past Term, which in fact concluded almost uniformly with significant victories for the right. Instead, my point is that the characterization of this Court is part caricature and is deeply dependent on the near-accident of the particular cases that are decided in any given Term. Although the era in which true liberalism was an ideological force on the Court (e.g., Brennan, Marshall, and Douglas) is now over, this is manifestly not a period of conservative hegemony. Like Justice O'Connor, Justice Kennedy's commitment to any ideological world view is too fragile for either wing of the Court to have genuine confidence in the outcome of an entire Term's worth of cases. And moreover, many important cases are not decided on ideological grounds or by five to four majorities.

Because the public's interest in the Court is notoriously weak and its memory short, the relevant question in deciding whether the Court can be a mobilizing force in the 2008 election for ideological groups is therefore not "how were cases decided in OT2006" (the focus of commentary so far), but instead "how will OT2007's cases be decided?" And I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal.

While the Supreme Court has something of a self-defined docket (in that outside a few very narrow types of cases, it chooses which cases to hear), Goldstein points out that accidents of timing and docketing determine whether commentators call a particular year "conservative" or "liberal." It is also very important to remember that probably half of the cases the Court hears in a given year are more business related than Constitutional in nature. Of course, it is the Constitutional cases that get the most play, and business cases can carry an ideological bent, but that does not mean that the Court can be classified as conservative or liberal based on the activity of any given term. Certainly, with Justice Kennedy sitting with a fence pole firmly between his decisional legs, a case can go either way.

Still, Goldstein writes,

As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly conservative, with laudatory commentary by the right and howls of protest from the left. Instead, we will see (mistaken) talk of the "surprising" tack by the Court back to the left and (among the legal glitterati) the "good Kennedy, bad Kennedy" phenomenon in which his ideological views seemingly oscillate dramatically from Term to Term. In fact, this commentary will be wrong: the Justices and their views will be exactly the same come June 2008; it is the cases that will be different.

Equally or more important when considering the potential electoral consequences of the Term, the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives, creating the prospect that the Court will serve as a rallying cry to mobilize the electorate. Even if the left ultimately does not win all of the five most significant cases of this Supreme Court Term, that wing of the Court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession.

As much as I may criticize the vacilations of Justice Kennedy, if you take some time and really look at his opinions, you will probably find a real pragmatist at heart. I don't necessarily disagree with a pragmatic approach to the law, but pragmatism may lead to some inconsistencies from case to case that generates questions, and concerns. Furthermore, even the more ideological Justices, say Scalia, Thomas and Ginsburg, tend to think of the cases in and of themselves, no matter what people may think. Yes, each of the three have a defined ideological lense through which they view cases, but such lensework is unavoidable.

In the end, a Supreme Court must be viewed from the perspective of a whole. Looking at one term or another does not yeild a definition of liberal or conservative. For example, quick, name me one case from the October 1953 Term beside Brown v. Board. Name a case from the Roe v. Wade term. You can't and I can't right off the top of my head, but I wouldn't be surprised that if you look hard enough you will find in each of those terms, decisions that could reasonably be classified as conservative decisions. By just about every measure, the Warren Court era was one of the most liberal in American history, but you can't look at an individal Term to arrive at that conclusion, you have to look at the entire breadth of Warren's tenure as Chief Justice to arrive at a conclusion of liberalness. That is Goldstein's point, don't confuse issues of docketing with an ideological bent of the Court--the analysis is almost always wrong.