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A True Rightward Turn? The Upcoming Term and the 2008 Elections

Following the completion of the 2006 Term, liberal advocacy groups raised alarm about conservative rulings from the Supreme Court (see here and here for two examples). In this post, I lay out my view that although the Court’s conservative image may help the left in the very immediate future, the more important short-term effect – i.e., in the run-up to the election – will be the reverse: it will be conservatives who will invoke the Court most successfully to mobilize their base.

As one of the most conservative in recent memory, the just-completed 2006 Term has recently served as a rallying cry for progressives. The two most prominent cases (by an order of magnitude) involved hot-button social issues – race and abortion – and both resulted in significant conservative rulings. Moreover, the Ledbetter case (opinion here), in which the Court limited Title VII’s backpay remedy, continues to receive significant attention as the Democratic Congress considers legislation to overrule it.

Those cases (along with, for example, the Wisconsin Right to Life campaign finance decision) were all decided by the same five-Justice majority composed of the Court’s most conservative members. The conventional wisdom in reporting on the Term that the Court had taken a marked step to the right was augmented by the fact that there was only one genuinely important liberal victory: the global warming case, Massachusetts v. EPA (opinion here), in which Justice Kennedy instead joined the Court’s more liberal members. But even that ruling may in fact not prove significant because it ultimately left the question whether to regulate tailpipe emissions to the EPA to decide. And no Justice on the right other than Justice Kennedy joined the more liberal members to form a five-Justice majority in any case during the Term.

But it is important to recognize that the public perception of a lock-step majority producing nearly uniformly conservative rulings could easily have been undercut had the docket taken a slightly different shape. A very important employment discrimination case involving discrimination by supervisors (BCI Coca Cola v. EEOC) (docket here) was dismissed immediately prior to argument. In that case, the Solicitor General was opposed to the employer’s position (see the brief here), which created the significant prospect that the Court would side with civil rights plaintiffs. In that circumstance, BCI and Ledbetter would have left a mixed message on the Court’s civil rights jurisprudence.

Still much more important, the Court initially denied certiorari in the Guantanamo detainee cases last Term, only to later reverse itself. The cases now are set for argument in the upcoming Term (see the docket here). If those very prominent cases had instead been decided in the 2006 Term in favor of the more liberal position (the most likely outcome, as I discuss below), it would have been much more difficult to characterize the Court as dominated by a solidly conservative (if narrow) majority.

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.

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.

First, consider the existing docket. The most prominent decision, by far, will come in the cases brought by detainees held at Guantanamo Bay as accused terrorists (see, for example, Lyle’s post here). The conventional wisdom is that the detainees will win. I agree. The grant of rehearing and certiorari signals that a majority of the Court – Kennedy and the left – is leaning toward the position of the detainees. Rehearing required five votes, including presumably that of Justice Kennedy. If he were not inclined to reverse, there would be no reason to take the extraordinary step of voting to grant rehearing. Equally important, if Justice Stevens did not have some confidence in the outcome, there would be little reason for him to agree to hear the case. The bottom line question in the case is whether the government can severely restrict the detainees’ access to federal court. The answer is very likely to be “no.”

The next-highest-profile case involves the crack-powder disparity in sentencing (Kimbrough v. United States) discussed in this post by Lyle. This is something of a “throwback” case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar. The particular question presented is whether, in the wake of the holding of Booker v. United States (opinion here) that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sentences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is overwhelmingly likely to lose. It is hard to see any member of the Booker majority accepting its position when the Commission itself has said that its own Guideline is misguided and Congress has not mandated a particular sentencing ratio. I expect that the “headline” ruling in the case will be that sentences will come down for crack cocaine.

A third significant and publicly accessible case involves the constitutionality of a particular federal regulation of child pornography (United States v. Williams) (Lyle’s post here). The PROTECT Act makes it a crime to distribute something in a manner that shows you believe, or causes someone else to believe, it constitutes child pornography. The case is a successor to Ashcroft v. Free Speech Coalition (opinion here), which invalidated as overbroad in violation of the First Amendment a prior statutory provision making it a crime to possess images that “appear to be” or “convey the impression” that they are child pornography. The new statute focused on the act of pandering the material, rather than its possession. A panel of the court of appeals held that the Supreme Court would not find the change significant enough to save the statute. I agree, though the question is difficult and likely to be close. The Free Speech Coalition majority was fairly sweeping on this point (the Court divided seven to two). In particular, Justice Kennedy’s opinion for the five-Justice majority (himself and the left) indicated that this type of fix would be insufficient because it would still make unlawful the distribution of material that is not in fact pornographic.

So, in the three most significant cases of the Term granted thus far, the position of the Court’s more liberal members will be (in the caricature that comes with much popular reporting on the Court) that accused terrorists deserve more rights, crack dealers deserve lighter sentences, and the First Amendment protects would-be distributors of child porn.

In addition, individual employees are likely to come out reasonably well in the two principal civil rights cases of the Term. These are not cases in which the position of the left would be unpopular or motivate conservatives to come out to the polls. But nonetheless, the rulings will – because they point in the opposite ideological direction from the prominent Ledbetter decision from this Term – further undercut the sense that the Court is solidly conservative. In the Sprint/United case (Lyle’s post here), the Court is likely to agree with the United States (see the brief here) that so-called “me, too” evidence – evidence that other employees who worked for different supervisors were subject to similar discrimination – is sometimes admissible. In the Federal Express case (Kevin’s post here), the Court is likely to agree with employees (and what I expect will be the position of the United States) that an “Intake Questionnaire” is sufficient to trigger the administrative filing requirements of the civil rights statutes.

The public’s impression of the Term is also going to be shaped profoundly by cases that haven’t yet been granted but are exceptionally likely to be. We already know what most of those cases will be. For a case to be heard this Term, the cert. petition must be filed by mid-November at the latest. Unless the petition is expedited, the court of appeals must have ruled by mid-August. So most if not all of the prospects are already known to us. Cases decided by the circuits in the coming months won’t be decided in the Supreme Court until after the election.

The most prominent likely addition to the docket this Term will be the Second Amendment case involving the District of Columbia’s handgun ban (District of Columbia v. Heller, petition here and appendix here, and Lyle’s lead post here). (Disclosure: Akin Gump represents the District.) It would be very surprising if certiorari were denied, given the significant circuit conflict created by the ruling below.

The outcome of this case cannot be predicted because these nine Justices have not decided a similar question. The District has a cascade of arguments for reversal – that there is no individual right to bear arms unconnected to militia service, that the Second Amendment doesn’t constrain the local regulation in the District, and that D.C.’s law is in any event reasonable (because it allows possession of shotguns and rifles) – and the D.C. Circuit’s decision is avowedly an outlier among a fairly significant body of lower court authority. So the more likely (if still quite uncertain) outcome is that the District will prevail.

Equally important, however, is that the guns case will likely break down along ideological lines (at least on the threshold question of whether and to what extent the Second Amendment confers an individual right). The general (although not inviolate) pattern in the lower courts has been that more conservative judges are more favorably inclined to gun rights. Again recognizing the uncertainty on the question, the conventional wisdom is that it is highly unlikely that any of the four more liberal members of the U.S. Supreme Court will vote to invalidate the D.C. law. So, the left on the Court will find itself advocating against gun rights.

The popularity of that position will be mixed. Polling data (see here and here) shows that the public favors more strict gun control laws. But it is not at all clear whether the D.C. law would be regarded as too strict in this respect. Equally important, the experience of the success of the NRA shows that there is a significant portion of the population that favors gun rights and mobilizes around that one question. The Court’s decision could have a profound effect on whether those voters go to the polls. By contrast, those who favor greater gun regulation overwhelmingly are not “single issue” voters.

A second high-profile case is on its way to the Supreme Court: the Louisiana Supreme Court’s ruling upholding the constitutionality of the death penalty for child rape (Kennedy v. Louisiana, petition here and Lyle’s post here). I think this is a sleeper case that has a genuine prospect of shaping opinion of the Court going into the 2008 election because the defendant is likely to win on a doctrinal ground that will not make sense to the general public. The defendant was convicted of raping his 8-year-old stepdaughter, who initially told authorities she had been selling Girl Scout cookies immediately before the attack. Though the prevailing view is that the Eighth Amendment precedents preclude imposing the death penalty for rape, an average American will recognize this crime as profoundly horrific and evil.

Certiorari is likely to be granted. The ruling below is in fairly direct conflict with rulings of several state supreme courts. Thirty years ago, the Supreme Court held that the death penalty for rape violates the Eighth Amendment in a decision involving 16- and 17-year-old victims. Unless two extensions are taken by Louisiana before it responds to the certiorari petition or the Court calls for the views of the Solicitor General, the case will be slated for argument in the 2007 Term.

The left is likely to win the case, joined again by Justice Kennedy (who admittedly will be quite torn by his obvious concern for allowing the government to protect children). Only five States make child rape a capital offense, and only Louisiana does so for defendants who have not previously committed a sex offense. The defendant in this case is the only person on death row in the country for a non-capital crime. Under existing jurisprudence, such a lopsided split among the states renders a capital scheme unconstitutional under the Eighth Amendment. And in any event, there is no reason to grant certiorari to affirm; if the Court grants review, expect it to reverse.

So, of the two highest profile cases yet to be added to the Court’s plenary docket, the left is likely to prevail, and to do so on behalf of a convicted child rapist and those seeking to restrict gun rights. The impression of the Court’s ideology left by the coincidence of the granted cases at the end of the Term is thus going to be at least mixed and potentially profoundly liberal – a far, far cry from the 2006 Term. Of the five cases discussed in this post, the three that will draw the greatest public interest – the detainees cases, the gun case, and the child rape case – are likely to be decided late in the Term, perhaps all in June. This will be a time – in the run-up to the party conventions – at which the public’s attention is starting to focus even more directly on the election.

There is in fact the genuine prospect that the Court will hold (potentially by a five-to-four vote each time) that the government may ban the possession of pistols (possibly guns altogether, if there is no individual Second Amendment right), that child rapists cannot be executed, that certain federal legislation regulating child pornography is unconstitutional, that the Administration’s treatment of alleged terrorists is unlawful, and that sentences for crack cocaine should be reduced. In that entirely realistic scenario, it is conservatives who will be aggressively using the Court as a rallying cry – in particular, the cry of the urgent need to move the Court a single seat to the right with the likely retirement of Justice Stevens – in the 2008 election.

Indeed, given the current national political fortunes of the ideological right, it is entirely possible that the Supreme Court will emerge as a central electoral theme of Republicans, precisely the opposite of what would intuitively be expected at the close of the 2006 Term. Again, the Court is generally not a significant electoral issue. Conservatives, however, have successfully used the judiciary as a rallying cry for their base in recent years.

In particular, conservatives in 2008 could use the five cases cited above to articulate a very coherent theme of “law and order” and “victims rights” around the need to move the Court one further step to the right. Each of the cases – terrorism, drug sentencing, child pornography, the death penalty, and gun rights – fits within that framework. This was of course a successful theme of Richard Nixon’s successful 1968 campaign for the Presidency (see here), though that was a response to the emergence of a much more profound and sweeping turn by the Supreme Court to the left.