CBJ - August 2008 #01. When it matters most, it is still the Kennedy Court.

Author:By Erwin Chemerinsky

California Bar Journal


CBJ - August 2008 #01.

When it matters most, it is still the Kennedy Court

California Bar JournalJune 2008When it matters most, it is still the Kennedy CourtBy Erwin ChemerinskyANALYSIS October Term 2007 will be most remembered for a few high profile cases that dealt with issues of enormous legal and social significance: the meaning of the Second Amend-ment, the right of individuals imprisoned in Guantanamo to have access to the federal courts, the ability of a state to impose the death penalty for the crime of child rape. Not surprisingly, each of these cases was decided by a 5-4 margin with Justice Anthony Kennedy in the majority.

Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices - Chief Justice Roberts and Justices Scalia, Thomas and Alito - vote for a more liberal result in a case defined by ideology. The bottom line is that when the Court is divided 5-4 on issues where there are clear liberal and conservative positions, Justice Kennedy is always the swing vote.

This term, though, there were fewer cases defined by ideology and fewer 5-4 decisions than in the first two years of the John Roberts Court. In October Term 2007, there were 14 decisions that were resolved by a 5-4 or 5-3 margin, compared with 24 cases the year before.There were more instances than in prior terms of the Roberts Court where criminal defendants and employees won important victories.

Second Amendment

The case that understandably received the most media attention was District of Columbia v. Heller, 128 S.Ct. ___ (June 26, 2008), which concerned the constitutionality of a 32-year-old District of Columbia ordinance that prohibited possession of handguns and imposed significant restrictions on long guns. The Supreme Court, in a 5-4 decision, invalidated the ordinance as violating the Second Amendment.

There long has been a debate about the meaning of the Second Amendment, which provides: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." One side of the debate sees the latter clause as being key and interprets the Second Amendment as creating an individual right to possess firearms. The other side of the debate emphasizes the first clause and says that it is a right only for purposes of service in the militia.

The Court split 5-4 between these interpretations, with Justice Scalia writing for the majority. He carefully traced the history of gun rights, in England and the United States, and said that the Second Amendment recognizes an individual's right to have firearms, especially in the home for the purpose of self-defense.

Justice Stevens, writing for the dissenters...

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