Goldstein Analyses Upcoming Court Term
He explains how the difference in the nature of the cases before the Court this upcoming Term will lead the public to perceive the Court as having made a left turn.
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.Goldstein explores how slight changes in the docket for the past Term could have led to very different public perceptions of the Court. First, he discusses civil rights jurisprudence:
A very important employment discrimination case involving discrimination by supervisors . . . was dismissed immediately prior to argument. In that case, the Solicitor General was opposed to the employer's position which created the significant prospect that the Court would side with civil rights plaintiffs.He then discusses the Guantanamo detainee cases:
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. 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.
Looking to the upcoming Term, Goldstein sees "the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives." In addition to the Guantanamo Bay case that Goldstein predicts will likely be decided this term in favor of the more liberal position,
the next-highest-profile case involves the crack-powder disparity in sentencing (Kimbrough v. United States). . . . 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.Goldstein sees this pattern continuing with a number of other high profile cases.
A third significant and publicly accessible case involves the constitutionality of a particular federal regulation of child pornography (United States v. Williams). . . 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. . . . 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.After discussing two civil rights cases where "individual employees are likely to come out reasonably well," he examines the two cases most likely to be added to the docket, and concludes "the left is likely to prevail, and to do so on behalf of a convicted child rapist and those seeking to restrict gun rights."
Regarding Heller, the case involving D.C.'s gun ban, "the more likely (if still quite uncertain) outcome is that the District will prevail."
In Kennedy v. Louisiana,
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. . . . 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. . . .
He argues "conservatives . . . 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."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.
Goldstein argues "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."