Today the Court begins its new annual term. Linda Greenhouse of the New York Times reports on what is in store.
What appears to be in store is a takeover, which is wonderful if your world view happens to be Republican.
For those with an alternate view of the universe this is less wonderful.
Some of us like to see the individual protected against government wrongdoing from Abu Ghraib to Guantanamo to the local streets.
Some of us like to see the right to vote respected and protected, not denied to the less worthy because some in the GOP think them less worthy because they're poor and barely making it, if, in fact, they are at all, considering how difficult the propertied class makes it for them to get a foot-hold on the ladder to success. Throw them out, the criminal illegals, the more privileged say. "Pull up the ladder, I've got mine, Jack," they appear to say.
Well, when you've got it made, you're in good shape, so why worry about the other guy who is swimming for his life in order to avoid sinking.
The Court is divided between a deeply conservative right wing (Roberts, Alito, Scalia, Thomas) and a somewhat less conservative liberal wing (Breyer, a Democrat, Souter, a Republican, Stevens, a Republican, and Ginsburg, probably not a Republican. If Breyer and Ginsburg are liberals than I'm a ham sandwich. They're liberals by comparison. They see the plight of individuals everywhere in the plight of one individual. They seem to care.
That's eight justices, divided 4:4 on the big issues, generally.
Anthony M. Kennedy is the ninth justice, but it is more accurate to consider him to be #5, the man in the middle. He's wild enough to flip either way and disappoint the supporters of either camp. Kennedy is big on individual liberty (see Lawrence v. Texas, the anti-gay sodomy statute, invalidated on judicial activist grounds, according to the conservatives, liberty grounds by the civil libertarians, and equality grounds by former justice Sandra Day O'Connor).
Kennedy's first big surprise was his decision in Casey (Planned Parenthood v.) along with Justice O'Connor and one other not to overrule Roe v. Wade when that was widely expected given the GOP presidents who appointed him and enough others to swing the vote.
As matters now stand, the best way to predict the outcome of a politically charged case before the Court is to ask what stance the conservative wing of the Republican party supports, for that will be the result.
Constitutional law is where the victors consolidate the fruit of their political battles by crystallizing it into the law of the land, the most fundamental, the most legitimate law of all. Except for those who disagree, of course. For then this most fundamental and legitimate law becomes the law of Dred Scott, in which the Southern sympathizing members of the Court sought to quell the conflict over slavery by settling the matter once and for all: we'll declare slavery legal, they said, and proclaim that the North has to return escaped slaves to their masters for whipping and further enforced, unpaid, laboring, and announce that black people have no rights that whites are required to respect.
Surely I'm overstating, right? How about this, then? Women who become pregnant have no rights over their body, their reproductive system, their desire not to have a baby, or this baby, and no rights over whether they will be able to survive economically with this baby, so therefore she must have this baby. She has no privacy and no final say in the matter. Rather, the neighbors, acting through government have the final say. This is what the argument over abortion is about. Right now, government can impose obstacles provided that they are not too much of an obstacle ("undue burden" test). Your idea of what is "undue" and mine might be two different things. On the Court, it can be nine different things, or more likely, four vs. four, thus canceling each other out, and with one, Kennedy's, deciding what's right for you, me, and the girl next door
I hope you enjoy the year that follows.