My law partner Tom Goldstein previews the upcoming Supreme Court term from a political perspective. Tom’s piece should be read in its entirety, not summarized. His basic argument, though, is that the Supreme Court isn’t really conservative, it just looked that way on the surface last term due to the nature of the high profile cases it happened to decide in June. This term, the same phenomenon (a small number of cases driving public perception of the Court) is likely to work the other way — making the Court appear liberal instead of centrist. Moreover, this would occur just in time for the 2008 election, giving the Republican presidential nominee a potentially powerful issue.
As Tom puts it:
There is in fact the genuine prospect that the Court will hold (potentially by a five-to-four vote each time) that the government may ban the possession of pistols (possibly guns altogether, if there is no individual Second Amendment right), that child rapists cannot be executed, that certain federal legislation regulating child pornography is unconstitutional, that the Administration’s treatment of alleged terrorists is unlawful, and that sentences for crack cocaine should be reduced. In that entirely realistic scenario, it is conservatives who will be aggressively using the Court as a rallying cry – in particular, the cry of the urgent need to move the Court a single seat to the right with the likely retirement of Justice Stevens – in the 2008 election.
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