Will Court—and Kennedy—Swing Left?
It’s the first Monday in October, which means the U.S. Supreme Court is beginning its new term, and publications are publishing their previews of the cases.
Many stories attempt to read the tea leaves, analyzing the type of cases selected and their backgrounds for insights into whether the court’s conservatives or liberals will hold sway this term.
Legal Times notes the lineup of cases chosen so far highlights issues dear to the hearts of liberals, and predicts that it may be conservatives who are criticizing this term’s rulings. Cases selected raise issues relating to federal judges’ sentencing discretion, rights of Guantanamo detainees, the constitutionality of a child porn law, and the standard for challenges of lethal injections.
“The take-away from this term will be much less conservative,” predicted Supreme Court litigator Thomas Goldstein of Akin Gump Strauss Hauer & Feld.
The Washington Post (reg. req.) agrees with that assessment, saying cases on the court’s docket are more likely to appeal to swing justice Anthony M. Kennedy’s liberal side. “If there is a difference this year, it could be that the court—balanced with four reliable conservatives, four reliable liberals and one man in the middle with an outsized influence—might teeter occasionally more to the left,” the Post writes.
The New York Times says the conservative justices may not win every case but they “clearly have the upper hand in the all-important task of shaping the court’s docket, a process that in effect shapes the country’s immediate legal agenda.” The newspaper suggests that a little-noticed discrimination case accepted last week is likely to produce a conservative result
The case asks whether Section 1981 of the Civil Rights Act, the law that bars discrimination in business dealings, also bars retaliation. All of the appeals courts that decided the issue agreed that the law protects retaliation; the Supreme Court accepted the case despite the lack of a conflict.
When the high court accepts a case in the absence of a conflict, it “is often an indication that the case has been added to the docket as a vehicle for advancing a particular agenda,” the Times writes.
“It is likely that a new majority granted [cert] in order to cut off the retaliation claim and perhaps also to issue a broader ruling against finding rights that are not spelled out in statutes,” the Times says.
But the way the court accepted a case seeking habeas right for Guantanamo detainees suggests the administration faces an uphill battle defending its position, the Wall Street Journal reports (sub. req.). The court first turned down the appeal then reversed course after an Army lawyer filed an affidavit that said the military’s review process appeared unfair.
The ABA Journal beat journalists to the punch with a story in its already-released October issue that highlights business cases before the court.
