Academic

Cheslik, McMurty, & Underwood on the Supreme Court's 2006-07 Term

By Lawrence Solum

Julie M. Cheslik , Andrea McMurtry and Kristin Underwood (University of Missouri at Kansas City) have posted Supreme Court Report 2006-2007: Closing of the Courthouse Doors? (Urb. Law., Vol. 39, No. 4, pp. 739-832, 2007) on SSRN. Here is the abstract:

This article reviews the decisions of the U.S. Supreme Court for the 2006-2007 term focusing on decisions of particular relevance to state and local government. In reviewing those decisions, we focus on the shifts in the Court over time on those issues.

The expectation that the Supreme Court would shift to the right came to fruition in the 2006-07 term by the sheer lack of clear decisions on the merits. Time and again, the Court decided cases on the standing issue, never reaching the merits and frustrating litigants and citizens attempts to define their rights. Yale law professor Judith Resnick went so far as to call this term the year they closed the courts. Many of the cases that were decided were sharply divided five to four decisions. Chief Justice Roberts arguably failed to bring about the harmony and unanimity he was aiming for when he testified before the Senate Judiciary Committee stating that he would be working more and more toward ... consensus this term, getting away from these 5-4 decisions. The Court issued only sixty-eight signed opinions this term, the fewest total number of cases the Court has decided since 1953, with 24 of the 68 being decided by a 5-4 margin. Even the conservatives were split among themselves on occasion.

Bush appointees Chief Justice John G. Roberts and Justice Samuel A. Alito, Jr., who joined the Court last term greatly influenced this right wing swing. It was Justice Kennedy, however, who again defined this term. Formerly a swing voter, he was in the conservative majority in all twenty-four of the 5-to-4 cases. Kennedy even influenced the term by not deciding a case, recusing himself and leaving the Court 4-4 on the issue of whether students must first try the public schools placement before claiming it is inadequate. It is now thought that Justice Alito will cast the deciding vote in the future. Alito created a five member majority in several big cases including the partial birth abortion ban case. Many wonder whether this session simply dismantle[ed] ... the work of prior years, especially in the areas of campaign finance, abortion, and affirmative action. Decisions previously rendered with the force of Justice O'Connor behind them seem to have been retracted this term. A group that had opposed the nominations of both Chief Justice Roberts and Justice Alito analogized the Court's respect for precedent to a wrecking ball, explicitly overturning three precedents and indirectly overruling several others providing a roadmap for future challenges.

The recent history of split decisions and lack of consensus has led many to abandon [t]he notion that profound social change can be accomplished through judicial action. Cass R. Sunstein of the University of Chicago Law School worries that the current bench is without a voice ... for significant social reform. With the four liberal justices being significantly older than the five conservative justices, it may be a long time before the Court shifts to the left.

Full post as published by Legal Theory Blog on March 19, 2008 (boomark / email).