Previewing the new Supreme Court term.

Previewing the new Supreme Court term.

Previewing the new Supreme Court term.

The law, lawyers, and the court.
Sept. 28 2007 7:31 AM

Deception at the Supreme Court

The upcoming term will look like a move to the left. Don't be fooled.

A detainee in Guantanamo Bay. Click image to expand.
Guantanamo Bay is at the center of an upcoming Supreme Court case

As one of the most conservative in recent memory, the just-completed 2006 Supreme Court term has served as a rallying cry for progressives. But will the Roberts Court help bring Democratic voters to the polls for the 2008 election? Because the public's interest in the court is notoriously weak and its memory short, the upcoming term is more relevant to whether the court can be a mobilizing force. And the cases lined up for the new term, which begins next week, strongly suggest that the highest-profile decisions will actually make the court look liberal.

The upshot is that the upcoming term won't end as this one did, with headlines and TV reports describing the court as profoundly conservative, triggering praise from the right and howls of protest from the left. Instead, we will see (mistaken) talk of the court's "surprising" tack back to the left. 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. But the misleading sense of direction that's likely when the term ends next June could make the court a galvanizing campaign issue for Republicans, not Democrats.

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Consider the existing docket. The most prominent decision, by far, will come in the cases brought by the detainees held at Guantanamo Bay as accused terrorists. The bottom line question in the cases is whether the government can severely restrict the detainees' access to federal court. The answer is very likely to be "no." The court has rebuked the Bush administration consistently in war-on-terror cases. And these cases—which the court first refused to hear before changing its mind in the wake of serious allegations about the process at Gitmo—look like they are headed for the same outcome.

Another high-profile case, Kimbrough v. United States, concerns the far longer sentences given for crack charges compared with cocaine. This is something of a "throwback" case; crack is not as prominent an issue as it once was. Nonetheless, it is one that the public grasps. The particular question presented is whether, in the wake of the Supreme Court's recent decision in Booker v. United States that the federal sentencing guidelines are advisory rather than mandatory, district judges can refuse to follow the guideline that imposes a sentence 100 times as harsh for crack as for cocaine of the same weight. I think that the government, which is defending the 100-to-1 disparity, is overwhelmingly likely to lose. It is hard to see any member of the Booker majority voting otherwise when the sentencing commission itself has said that its own crack-cocaine guideline is misguided and Congress has not mandated a particular sentencing ratio. I expect that the "headline" ruling in the case will be that sentences will be lowered for crack cocaine.

A third significant and publicly accessible case, United States v. Williams, involves the constitutionality of a particular federal regulation of child pornography. The PROTECT Act makes it a crime to distribute something in a manner that shows you believe, or causes someone else to believe, it constitutes child pornography. The Supreme Court previously invalidated (as a First Amendment violation) an earlier law making it a crime to possess images that "appear to be" or "convey the impression" that they are child pornography. So, the PROTECT Act focused on the act of pandering the material, rather than its possession. The court of appeals held that the Supreme Court would not find the change significant enough to save the statute. I agree, though the question is difficult and likely to be close.

So, in the most significant cases of the term granted thus far, the position of the court's more liberal members will be (in the caricature of much popular reporting on the court) that accused terrorists deserve more rights, crack dealers deserve lighter sentences, and the First Amendment protects would-be distributors of child porn. All good headlines for Republican candidates.

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Individual employees are also likely to come out reasonably well in the two principal civil rights cases of the term. In the Sprint/United case, the court is likely to agree with the United States that so-called "me, too" evidence—testimony by other employees who worked for different supervisors that they were subject to similar discrimination—can sometimes be heard by juries. In the Federal Express case, the court is likely to side with the employees, too (probably with the support of the federal government).

This week, the court added to its docket two other cases that will command attention. In one, an appeal from Kentucky, the court will enter the fray over whether lethal injection is a constitutional means of execution. Many executions around the country have been on hold while the courts confront concerns that the standard drug cocktail can cause excruciating and unnecessary pain. The other case involves Indiana's voter ID law, which is being challenged on the grounds that it serves no purpose other than to disenfranchise minorities and Democrats. In both of these cases, the court stepped in to review conservative lower-court rulings—upholding lethal injection and voter ID—which suggests that the justices on the left may have the upper hand. These cases, like the employment cases, won't motivate conservatives to come out to the polls. Nonetheless, the likely rulings will further undercut the sense that the court is solidly conservative.

The public's impression of the term is also going to be shaped profoundly by cases that the court hasn't yet decided to hear but most likely will. The most prominent, District of Columbia v. Heller, concerns whether the District of Columbia's handgun ban violates a Second Amendment right to bear arms. (Disclosure: My law firm, Akin Gump, represents the District.) The outcome of this case cannot be predicted because these nine justices have not decided a similar question. Still, the district has a cascade of arguments for reversal. And the decision is likely to break down along ideological lines, with the four members on the left of the court advocating against gun rights. The reaction to that position will be mixed. Polling data show that the public favors stricter gun-control laws. But it is not at all clear whether the D.C. law would be regarded as too strict. The success of the NRA shows that there is a significant portion of the population that favors and mobilizes around gun rights. The court's decision could have a profound effect on whether those voters go to the polls. By contrast, those who favor greater gun regulation overwhelmingly are not "single issue" voters.

A second case on its way is Kennedy v. Louisiana, the Louisiana Supreme Court's ruling upholding the constitutionality of the death penalty for child rape. I think this is a sleeper case that has a genuine prospect of shaping opinion of the court going into the 2008 election. The defendant was convicted of raping his 8-year-old stepdaughter, who told authorities she had been selling Girl Scout cookies before the attack. If the court takes the case, Kennedy is likely to win, but on a legalistic ground that will not make sense to the general public.

Thirty years ago, the Supreme Court held that the death penalty for rape violates the Eighth Amendment in a decision involving 16- and 17-year-old victims. Louisiana's death penalty for child rapists is likely to be struck down, too, with the court's four most liberal members joined again by Justice Kennedy (who admittedly will be quite torn by his obvious concern for allowing the government to protect children). Only five states make child rape a capital offense, and only Louisiana does so for defendants who have not committed a previous sex offense. The defendant in this case is the only person in the country who is on death row for a noncapital crime. According to the method the court has adopted for evaluating whether a law amounts to cruel and unusual punishment under the Eighth Amendment, such a lopsided split among the states renders a capital scheme unconstitutional. Still, an average American will recognize this crime as profoundly horrific and evil. Score another one for Republican candidates.

Of the cases I've discussed, the three that will draw the greatest public interest—the detainees cases, the gun case, and the child rape case—are likely to be decided late in the term, perhaps all next June. Which means that during the run-up to the party conventions, just as the public's attention is starting to focus more directly on the election, conservatives could use these cases to articulate a coherent theme of "law and order" and "victims' rights." And thus they could argue for moving the court one step further to the right, as a future conservative president filling the next open seat would. It worked for Richard Nixon. It could work for the 2008 Republican nominee.