June 25, 2006

SCOTUS 2006: Some Preliminary Thoughts

by Milbarge

Thanks to PG and Will for joining me on this little adventure. And thanks to PG for hosting the whole shebang over here.

I thought about titling this post, "Light This Candle." That was what Alan Shepard said when he was ready to blast into space. He also said, ""Please, dear God, don't let me f*** up," which also seemed appropriate given that I always manage to mangle these MT blogs (I'm a Blogger guy). And then I realized, even though this is something of a kick-off post, we're really discussing the end of a very eventful Supreme Court term and trying to wrap it up with some kind of synthesis. I tried for some kind of "burning the candle at both ends" metaphor, and finally just gave up. So that explains the boring post title, which is certainly less evocative than PG's.

Anyway, we're now less than twelve hours away from the moment when the buzz in the majestic court room will die down, and the gavel will bang, and the marshal will call the court to order, and the Justices will file in and take their seats. The Chief Justice will inform the listeners that a certain Justice will announce the decision in a pending case, and that Justice will finally end the suspense. On rare occasions, a dissenting Justice will add a few words. And they'll continue that way until they get through the day's business. The Chief Justice will announce a recess, the gavel will bang, and the Justices will file out. It's pretty amazing to think how much the law can change, how many lives will be impacted, how the balance of power between the branches of the federal government, and between the states and the national government, will shift, all in the span of a few minutes.

And then, of course, people like us will spend many more minutes trying to digest what just happened.

We're still waiting on decisions in about ten cases. SCOTUSBlog has a list here. I think two of these, the terrorism tribunals case (Hamdan) and the Texas redistricting case (LULAC v. Perry), will get the most attention in the media, with the insanity defense case (Clark v. Arizona) also garnering some notice. That's not to say they're the only important cases. But a case like Clark is simply going to be more accessible than, say, Recuenco, the Booker follow-up.

There are certainly times when the cases that get lots of attention don't really warrant it, and vice versa. I'd like to start our little endeavor here by asking PG and Will for their thoughts on this term's most overrated and most underrated decisions (however they'd like to define those terms). For overrated, my suggestions are Gonzales v. Oregon (interpretation of the Controlled Substances Act re: physician-assisted suicide) and certainly Marshall v. Marshall (the Anna Nicole Smith case). Not that those cases are insignificant, but I thought the interest they received was outsized. For underrated, I'd offer Jones v. Flowers (a due process/notice case I discussed here). I'll try to find time to explain my choices later in the week.

I'd also like to ask what the state of the states' sovereign immunity is these days? The late Chief Justice Rehnquist spent three decades building something of a federalism revolution on the Court. Maybe he backed off a little bit in Hibbs, the FMLA case, but it's still a considerable legacy. Do cases from this term like Katz and U.S. v. Georgia (the Bankruptcy Act and ADA Title II, respectively, abrogate soveriegn immunity) mean the movement is receding a bit? Or am I reading too much of a trend in these cases? After all, Gonzales was a victory for the states, right? So where do we stand?

I'll try to come up with some more meta-term questions later this week, and will do my best to tackle whatever Will and PG throw at me. For now, I'll venture a few predictions for this week at the Court. SCOTUSBlog notes here that both Tom Goldstein and Miguel Estrada predict that Justice Stevens is writing the opinion in Hamdan, so who am I to disagree? I think a lot of people saw the two newest Justices as President Bush's effort to build a Court that would be favorable to his arguments in the legal battles of the war on terror, so I'm looking forward to seeing what Chief Justice Roberts or Justice Alito have to say in Hamdan.

I predict a 4-1-4 split in LULAC, with Justice Kennedy again being the swing vote, just like last week's Rapanos Clean Water Act decision. (I also predict that Will and I will disagree over Rapanos). I predict I'll get tired of italicizing all these case names by the end of the week. I predict that the opinion in Sanchez-Llamas won't require state courts to follow World Court rulings. I predict that the decision in Randall v. Sorrell, the Vermont campaign contribution case, will be a muddle, but that the Court will follow the district court in letting states enact some limits on contributions, but will strike down the caps on what candidates can spend themselves and the limits on out-of-state funding. I think we're also likely to see some fractured opinions and complicated vote-counting there.

Okay, it's almost time to find out how wrong I was with some or all of these predictions. Let's light this candle!

(Oh, briefly, a disclaimer: Naturally, everything I say here is just my musings among friends, is not legal advice or in any way job-related, and shouldn't be attributed to anyone else, including my former, current, or future employers, spouses, pets, all enemies foreign and domestic, and Major League Baseball.)

June 25, 2006 11:37 PM | TrackBack
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