Redstate

Tom Goldstein on SCOTUS 2007-08

By Dan McLaughlin Posted in Law — Comments (2) / Email this page » / Leave a comment »

Tom Goldstein, who is certainly no conservative himself but is a careful observer of the Supreme Court, has a thought-provoking post on the political implications of the upcoming Term. Among other things, he predicts a victory for Guantanamo detainees in their pursuit of access to federal courts, and notes that whichever way the DC gun ban case comes out, it's likely to mobilize the Right more than the Left. His analysis is worth considering:

Because the public's interest in the Court is notoriously weak and its memory short, the relevant question in deciding whether the Court can be a mobilizing force in the 2008 election for ideological groups is therefore not "how were cases decided in OT2006" (the focus of commentary so far), but instead "how will OT2007's cases be decided?" And I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal.

As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly conservative, with laudatory commentary by the right and howls of protest from the left. Instead, 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.

Equally or more important when considering the potential electoral consequences of the Term, the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives, creating the prospect that the Court will serve as a rallying cry to mobilize the electorate. Even if the left ultimately does not win all of the five most significant cases of this Supreme Court Term, that wing of the Court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession.

Read On...

+++

In particular, conservatives in 2008 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. Each of the cases - terrorism, drug sentencing, child pornography, the death penalty, and gun rights - fits within that framework.

(H/T Bashman). Read the whole thing.