The Supreme Court moves to the right, perhaps sharply to the right

[depakid]

Term 2008 might be remembered most for the suggestions it gave of changes to come. On the last day of the term, June 29, 2009, the Court surprised observers by not deciding one of the most high profile cases of the year, Citizens United v. Federal Election Commission. The case involved whether federal election law was constitutional in keeping a political action corporation from showing a movie highly critical of Hillary Rodham Clinton.

Instead of deciding the case that had been briefed and argued, the Court set the case for new briefing and arguments on the issue of whether prior decisions limiting corporate expenditures in federal elections should be overruled. Most believe that there are now five votes to find a First Amendment right of corporations to make campaign contributions and perhaps even five votes that all restrictions on campaign contributions are unconstitutional.

Although the most dramatic example, this is just one of many cases that indicated a Court willing to change the law in a conservative direction. This term lacked the blockbusters of a year ago, when the Court found that unlawful combatants have a right to habeas corpus in federal court, concluded that the death penalty for the crime of child rape is cruel and unusual punishment, and for the first time in American history invalidated a law regulating guns as violating the Second Amendment. But there were an especially large number of cases changing the law in areas that lawyers deal with on a daily basis.

This year, as in each of the four terms in which John Roberts has been Chief Justice, it was the Anthony Kennedy Court. The Court decided 75 cases after briefing and oral argument. That is a bit more than the 67 cases decided a year ago and 68 resolved two years ago. In 23 of 75 cases, the Court split 5-4. Justice Kennedy was in the majority in 18 of these, more than any other justice. Justice Kennedy was in the majority in more than 92 percent of all the cases, again far more than any other justice.

Perhaps the most revealing statistic is that in 16 of the 5-4 cases, the Court split along ideological lines, with Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito on one side, and Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer on the other. Justice Kennedy sided with the conservatives in 11 of 16 cases. Indeed, in the most important cases concerning civil litigation, criminal procedure, employment discrimination and civil rights, Justice Kennedy voted with the conservatives, often to change the law.

More: http://www.calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney%20Resources/California%20Bar%20Journal/July2009&sCatHtmlPath=cbj/2009-08_TH_01_supremecourt.html&sCatHtmlTitle=Top%20Headlines

[orwell]

1. But they are not activist...

...because they lean to the right. That is called "strict constructionist."

[robinlynne]

2. Two of those Supremes were appointed by an un-elected president.

Can we count the votes now?

[depakid]

3. And confirmed with the support of Democrats

[Fire_Medic_Dave]

4. Are these 2 decisions moves to the right?

when the Court found that unlawful combatants have a right to habeas corpus in federal court, concluded that the death penalty for the crime of child rape is cruel and unusual punishment. Those don't seem very conservative to me.

[depakid]

5. Read the Bar Journal's take- those were last years' cases not 2009

and Chemerinsky at least sees signs in next years' choice of cases as well as the ideological line up on the cases that are- to say the least, ill omens.

I can tell you, it was rather disturbing to get the Journal and have that on the front page today.

[krispos42]

6. Ah, the joys of corporate personhood.

I've decided I want to be a corporation. I'll move to the Cayman Islands and live forever. I'll committ crimes but never spend a day in jail. And I get to deduct expenses, such as lunch down at the strip club.

Yay...