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First Monday
What next for the "Kennedy Court"?


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Jonathan H. Adler

A potentially momentous and controversial Supreme Court term begins today, the first Monday in October. In the coming months the justices will revisit the Bush administration’s policies on enemy combatants, review local election laws, and consider the scope of third-party liability under federal securities laws. The Court may also deliver its first ever holding on the meaning of the Second Amendment. As a consequence, the 2007-08 Supreme Court term could have significant political consequences.

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When the last term closed, many claimed the Court had lurched dramatically to the right. In The Nine: Inside the Secret World of the Supreme Court, for example, CNN legal analyst Jeffrey Toobin argues the Supreme Court’s 2006-07 term revealed a “dramatically more conservative” Supreme Court with a majority intent on launching a conservative “counter-revolution” in American law. Some Democratic senators expressed dismay at the Court’s decisions and regret that they had allowed Associate Justice Samuel Alito to be confirmed.

Contrary to the conventional wisdom, the Supreme Court has not moved particularly far to the Right. As I explained here, the most “conservative” decisions last term were actually quite modest and narrow. While moderately conservative on some issues, the Court remains quite liberal on others. On most close and contentious questions, the Court is dependent upon the mildly conservative, but quite idiosyncratic, jurisprudence of Associate Justice Anthony Kennedy. The Court appeared more conservative last term, in part, because of the particular mix of cases on the docket. This term presents a decidedly different mix, however, and will show that the Court remains significantly less conservative than some would like, and others fear.

The highest profile case up for review thus far is Boumediene v. Bush, a direct challenge to the Military Commissions Act of 2006 and the government’s procedures for detaining and trying enemy combatants in Guantanamo Bay. In this case, Guantanamo detainees contend they are entitled to file habeas corpus petitions in federal court challenging the legality of their detention. Insofar as the MCA purports to prevent courts from hearing such claims, they argue it is unconstitutional. According to the detainees, the “Combatant Status Review Tribunals” (CSRTs) created to consider whether those detained in Guantanamo were properly classified as “enemy combatants” provide insufficient process to satisfy constitutional requirements.

Unlike in prior detainee cases, it will be difficult for the justices to avoid the ultimate constitutional question in Boumediene — and it seems unlikely that the federal government’s position will prevail. The Court had initially refused to hear Boumediene in April, denying the detainees cert petition. A few weeks later the Court reversed itself, however, granting a petition for rehearing. This nearly unprecedented step required the agreement of at least five justices — whereas granting a cert petition requires only four — strongly suggesting that a majority of the Court will reject the administration’s position and grant the detainees some form of relief. Insofar as this could require the Court to declare aspects of the MCA unconstitutional, Boumediene could be an exceedingly important case.

Another federal law facing a constitutional challenge this term is the “PROTECT Act,” Congress’ most recent attempt to control the dissemination of “virtual child porn.” In 2002, the Court struck down a federal law criminalizing the possession of materials that “appear to be” child pornography, irrespective of whether actual children were portrayed or involved, finding the legislation to be overbroad, and therefore a violation of First Amendment free speech rights. In 2003 Congress responded with the PROTECT Act, making it a federal crime to distribute material that replicates or purports to be child pornography. The Court will hear a challenge to the law in U.S. v. Williams. Given a majority of the Court, including Justice Kennedy, found the prior law unconstitutional, the PROTECT Act is likely to suffer a similar fate.

The 2008 elections may be over a year away, but election-related litigation is already in full swing. Last month the Supreme Court accepted a case challenging the constitutionality of voter identification requirements, and placed the case on an expedited briefing schedule. Several states have adopted photo identification requirements for polling places in recent years, and most of those laws have been challenged in federal court. This is hardly the only election law issue on the docket, however, as the Court will also hear challenges to Washington State’s “top-two” primary and New York state’s approach to judicial elections.

The coming term also offers the Court opportunities to further curtail the administration of capital punishment. In Baze v. Rees, the Court will consider whether the use of a particular lethal injection cocktail violates the Eighth Amendment’s prohibition on cruel and unusual punishment because it poses too great a risk of causing undue pain and suffering. If the Court answers “yes,” three dozen states will have to revise their execution protocols.

The Court is also likely to hear a case out of Louisiana challenging a child rapist’s capital sentence. Louisiana is one of five states in which the death penalty is available for crimes other than murder, but is the only state in which a criminal defendant has actually been sentenced to die for a non-lethal crime. Here again the Court would be faced with an Eighth Amendment claim. Given recent cases in which the Court relied upon national trends and international practice to judge the acceptability of capital punishment in given circumstances, a majority may well conclude that capital punishment is unconstitutional when a criminal defendant was not responsible for the loss of human life.

With enemy combatants, voter ID laws, and “virtual child porn” already on the docket, it would be easy to overlook some of the business law cases before the Court this term, but that would be a mistake. Stoneridge Investment Partners v. Scientific-Atlanta, to be argued October 9, is likely the most important securities law case to reach the Court in over a decade. Stoneridge presents the question whether third parties can be held liable for securities fraud by corporate shareholders for their part in allegedly fraudulent transactions the corporation in which the shareholders own stock. If the answer is “yes,” we may see another wave of class-action securities litigation as plaintiffs’ lawyers seek out deep pockets that can be blamed for other companies’ declining stock values. Trial lawyers will also be watching closely at several preemption cases, including one in which the Court will revisit the extent to which federal drug regulations preempt state law tort claims.

The Court has accepted 45 cases thus far, and is expected add at least twenty more to hear this term. One may be District of Columbia v. Heller, the appeal of Parker v. District of Columbia, in which the U.S. Court of Appeals for the D.C. Circuit struck down Washington, D.C.’s handgun ban. Parker was the first case in which a federal appellate court struck down a gun control law on Second Amendment grounds, and only the second in which a federal appellate court accepted that the Second Amendment protects an “individual right” to own guns. This will make the case difficult for the Supreme Court to avoid — and a decision on the scope of Second Amendment rights could be momentous whichever way the Court decides. This is also a case in which the outcome is particularly difficult to predict as the Court has never really addressed the scope of gun rights protected by the Second Amendment.

If the 2006-07 terms caused liberals to claim that the Supreme Court had swung wildly to the Right, the 2007-08 term may cause conservatives to complain that the Court is still too “liberal.” Despite the replacement of moderate Justice Sandra Day O’Connor with Justice Samuel Alito, this term’s most high profile cases may well yield “liberal” results. If so, this could give Republican candidates a political opportunity in 2008.

If, as some expect, Justice Kennedy joins with the Court’s liberals to void federal limits on virtual child porn, constrain capital punishment, and repudiate the Bush administration’s detention policies, Republican candidates will almost certainly attack “activist” judges on the campaign stump. In this environment, a ruling adopting a constrained view of the Second Amendment could be particularly explosive. As Court watcher Thomas Goldstein observes, “it is entirely possible that the Supreme Court will emerge as a central election theme of Republicans” in the next national elections.

After the Court’s last term, some liberal activists expressed a desire to turn the Supreme Court into a national political issue. After the coming term they may well get their wish, but the result is not likely to be what they had in mind.



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