Supreme Court: Courting Conservatives
Supreme Court: Courting Conservatives
Last year's "hyperpartisan" Supreme Court produced a "higher share of 5-4 decisions than any term in the last decade." Despite Chief Justice John Roberts's promise to seek greater consensus, 24 out of 68 decisions were resolved by a 5-4 margin.
|OCTOBER 2, 2007||by Faiz Shakir, Amanda Terkel, Satyam Khanna,
Matt Corley, Ali Frick, and Jeremy Richmond
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| SUPREME COURT
Last year’s “hyperpartisan” Supreme Court produced a “higher share of 5-4 decisions than any term in the last decade.” Despite Chief Justice John Roberts’s promise to seek greater consensus, 24 out of 68 decisions were resolved by a 5-4 margin. As The New York Times notes, “The Roberts bloc has not adhered to any principled theory of judging. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?” “It is not often in the law that so few have so quickly changed so much,” said Justice Stephen Breyer in a high-profile dissent at the end of the last term. This year’s term promises more of the same, with Justice Anthony Kennedy once again the pivotal swing vote. While this Court’s docket contains cases that could potentially strike Kennedy’s “individualistic, even slightly liberal chords,” the four-person Roberts bloc will likely continue to go out of its way to issue activist conservative rulings.
PUSHING FORWARD A REAGAN-ERA AGENDA: During their nomination hearings, Robert promised that he harbored “no agenda,” and Justice Samuel Alito claimed that the judiciary must operate in a “neutral fashion.” But Roberts and Alito, along with Antonin Scalia and Clarence Thomas, “form a solidly conservative bloc that votes together time after time and reaches the results sought by political conservatives.” Conservatives called last year the “best Supreme Court term ever” for big business. It’s unsurprising that Roberts and Alito, both Bush appointees, vote together. Both men also served under Attorney General Edwin Meese in President Reagan’s Justice Department, which famously “released a series of documents” in the 1980s outlining a long-term agenda to change the Court’s interpretation of the Constitution. As a new analysis by the Center for American Progress notes, the Guidelines on Constitutional Litigation ordered Justice Department litigators to advance a rigid view of the Constitution, “listing decisions it viewed as ‘consistent’ and ‘inconsistent’ with the Reagan administration’s interpretation of the nation’s founding document.” Similarly, another document, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation, predicted “what constitutional questions would be controversial during the 1990s” and “suggested the administration’s preferred answers.” Roberts and Alito, now joined by Scalia and Thomas, are carrying out this Meese agenda, striking down abortion rights, access to justice, and voluntary school desegregation.
THE ‘SUPREME REALM’ OF JUSTICE KENNEDY: Of the 24 cases resolved by a 5-4 margin last term, Kennedy was in the majority in every single one. In all of the 68 cases the court decided by signed opinions, Kennedy dissented only twice. Underscoring this dynamic, the Christian Science Monitor noted that the Court “might just as well be called the supreme realm of Justice Anthony Kennedy.” There is no guarantee that Kennedy will consistently vote with the conservative bloc again this term; some analysts predict that “the highest-profile cases this year are likely to bring a broader mix of both liberal and conservative victories.” For example, in Baze v. Rees, the Court will examine current methods of execution by lethal injection that may cause severe and undetectable pain. The New York Times notes that Kennedy, “who is concerned about death penalty abuses, may provide the fifth vote to hold that these executions violate the Eighth Amendment ban on cruel and unusual punishment.”
HEARING FOR HABEAS CORPUS RIGHTS: One of the most prominent cases the Court will be hearing is “a challenge by inmates at the U.S. naval base at Guantanamo to a federal law limiting their access to courts.” Last year, the justices refused to hear the case. But in “an action without modern precedent,” they reversed course and three months later agreed to take up the case. According to The New York Times, “the development strongly suggested that a majority of the court retains concerns” about the current detainee system, because “the reconsideration required the votes of five justices, instead of the four ordinarily needed to grant a case.” In both 2004 and 2006, Kennedy joined his colleagues and struck down the “Bush administration’s claims of unlimited authority over prisoners in the government’s war on terror.” In response, the conservative 109th Congress passed a law sanctioning Bush’s program and denying the right of habeas corpus to detainees. “The court took this case to make a larger statement of who we are as a people,” said Neal Katyal, a law professor at Georgetown Law Center, who also represents a Guantanamo detainee in a pending case.
The Supreme Court “let stand a New York court ruling upholding a state law that forces religious-based social service agencies to subsidize contraceptives as part of prescription drug coverage they offer employees.”
ILLINOIS: “The City of Aurora says a controversial Planned Parenthood clinic can open its doors — immediately.”
MINNESOTA: Members of Minnesota’s congressional delegation write to Gov. Tim Pawlenty (R) “urging his administration to apply for emergency funds for the 35W bridge collapse.”
HEALTH CARE: Eight states will file suit against the Bush administration, challenging stricter eligibility rules for the Children’s Health Insurance Program.
THINK PROGRESS: Rep. Jack Kingston (R-GA) introduces resolution “commending” Rush Limbaugh.
FISHBOWL DC: Sunday’s episode of the Simpson’s mocks Rupert Murdoch’s acquisition of the Wall Street Journal.
HUFF POLITICS: The Huffington Post launches a new blog with original reporting on politics.
FIREDOGLAKE: After his “phony soldier” comments, Rush Limbaugh should be taken off of the Armed Forces Radio network.
“The day you set timelines and deadlines, it’s lost in Iraq.”
“Graham told Time Wednesday that the Iraqi leaders have 90 days to start resolving their political differences with real legislative agreements or face a change in strategy by the U.S.”
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