California Bar Journal
CBJ - August 2009 #01.
The Supreme Court moves to the right, perhaps sharply to the right
California Bar JournalAugust 2009The Supreme Court moves to the right, perhaps sharply to the rightBy Erwin ChemerinskyANALYSIS
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.
For those who handle civil litigation in federal court, no decision was more important than Iqbal v. Ashcroft. It concerned basic questions: what is the...