Legal News

Scotus Roundup: Pre-Gaming the 2009-10 Term

By Ashby Jones

We can barely wait for next week. Yes, there’s a little matter called the MLB playoffs, in which our beloved Angels will have their hands full with those dreaded Boys from Beantown.

But of even greater cause for excitement: the opening of the 2009-10 Supreme Court term. And on that front, we’re brimming with questions: Will Justice Sotomayor make more like Justice Scalia or Justice Thomas during oral arguments? Will we see an even greater percentage of cases decided by a 5-4 margin? Will the Bush II appointees — Chief Justice Roberts and Justice Alito, no longer the babies of the court — start asserting themselves more forcefully?

For a nice preview of these issues — and some of the hot-button cases with which the court has chosen to wrestle, check out Jess Bravin’s piece today in the WSJ.

Don’t look for unanimity, writes Bravin:

A big question among court watchers like [Akin Gump's Tom] Goldstein: . . . “[A]re we settling into a pattern of a bitterly divided court?”

Some say the latter. Erwin Chemerinsky, dean of the University of California, Irvine, law school who has argued several liberal causes at the Supreme Court, says conservatives such as Chief Justice John Roberts and Justice Alito may have at first taken relatively tentative steps because during their confirmation processes they “pledged fidelity to the precedents.” Newcomers no longer, the Bush appointees may feel more comfortable taking bolder steps, he says.

Why The Decline? In his Sidebar column, NYT Supreme Court reporter Adam Liptak investigates the widely-known-but-not-very-well-understood phenomenon of the court taking fewer cases than it used to.

In the early 1980s, the court used to hear about 150 cases per term. Today, the court hears about 80. Liptak writes that while there are a lot of theories for the decline, a grand unified explanation has yet to emerge. Writes Liptak:

The most striking possible explanation came from David R. Stras, a researcher at the University of Minnesota Law School. A crop of five new justices who joined the court starting in 1986, he found, voted to hear cases far less often than the justices they replaced.

"You saw the docket fall off a cliff" as these justices took their seats, Mr. Stras said in an interview.

The 8th Amendment, Revisited: One of the more potentially divisive cases involves whether life without parole for minors who didn’t kill violates the 8th Amendment’s ban on cruel and unusual punishment.

The attorney for one of the defendants, a man who committed two violent crimes in his teens, isn’t looking for his client to walk free, just to be given the chance for parole.

And in this case, writes the LAT’s David Savage, Justice Sotomayor could provide the swing vote:

The question will be an early test of whether Justice Sonia Sotomayor, a former prosecutor, will align herself with the court’s tough-on-crime conservatives or join with its liberals to strike down prison policies perceived as going too far.

Full post as published by Law Blog - WSJ.com on September 29, 2009 (boomark / email).