Are you seriously asserting that age alone can make a precedent inviolate? Plessy v. Ferguson was 58 years old when it was overruled. If a decision is wrong and the other stare decisis factors point to overruling (e.g., continuing harm, lack of reliance interest, inability to overturn by statute), age alone shouldn’t save it.

“(kennedy is not that conservative) compared to whom”?

To the 4 conservatives on the court. I did not say he was a liberal, i said he’s just not very conservative. To me, he’s a ‘moderate’ who shades somewhat to the right.

As for a comparison to Justice White: Didn’t White write the conservative “Bowers” opinion that Kennedy infamously wrote against in “Lawrence”?

As for Justice Thomas – in general (i don’t know the specifics of that case) he’s right. Why should a precedent become inviolate with age? Heck Brennan didn’t think so either.

An analysis worthy of an academic appointment.

Compared to whom? He is clearly more conservative than William O. Douglas, William Brennan, Earl Warren, Thurgood Marshall, Arthur Goldberg, Abe Fortas, Warren Burger, Harry Blackmun, Lewis Powell, Sandra Day O’Connor, John Paul Stevens, David Souter, Ruth Ginsburg, Steven Breyer. He is probably more conservative (overall) than Byron White, unless your perspective is limited to one issue (abortion).

Overall, that sounds pretty conservative to me. If there have been a handful of justices in modern times that were more conservative than Justice Kennedy, that does not make him a liberal.

We’ll have a conservative court when the big warren-brennan era decisions, such as roe, are overturned. not nibbled at on the edges, but actually overturned.

Why stop there? Justice Thomas thinks that no precedent is too old to be overruled (see Wickard v. Filburn).

This is a good point, and the Government certainly should mention the argument, but I think the detainee rights advocates are arguing that Congress lacks the authority to do what it did, so we’re back at tier 3.

This case is clearly in Jackson’s 1st tier of the President and Congress acting together so I would not be surprised if the DC Circuit is upheld.

Knowing Breyer and Kennedy it probbly won’t be, but we’ll see.

I agree, though, that the potential impact on the election could be devestating for the Democrats. Imagine Hillary having to applaud and defend decisions for terrorists, child pornographers, rapists and gun-grabbers as Mr. Law and Order himself leads the charge against them.

Dun-Dun

We’ll have a conservative court when the big warren-brennan era decisions, such as roe, are overturned. not nibbled at on the edges, but actually overturned.

but not until then.

1. The predictions are generally correct, I believe. And the point about the effect on the 2008 election is both insightful and very true.

2. But don’t forget that, except for the guns case, each of these cases will be heard early in the year, with — most likely — correspondingly earlier opinions. By the time the end of the Term rolls around, rightward-leaning opinions in later-granted cases may appear, dampening the effect you describe. (This may especially occur if Kennedy “feels” that he has been too liberal in the prior cases and evens it out with some conservative rulings.)

3. What will be very amusing is the reaction of the mainstream media to the outcomes in the coming Term. Most likely, the leftward-leaning outcomes will be “interpreted” as a sign that the Court is cognizant of the public and is correspondingly pulling back from last Term. Which, of course, is simply not how the Justices work at all (with the possible exception of, naturally, Justice Kennedy).

4. Congress is considering legislation to “overrule” Ledbetter? Come on, Tom. You know better than to use phrasing like that. Congress doesn’t “overrule” Supreme Court decisions. It modifies the statute to change or clarify the desired legal rule. Yes, “overrule” is a convenient shorthand, but one would hope that this blog would resist such easy fudging and instead be more precise in its terminology.