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Little Secret About the Supreme Court Term:
I hate to admit this, given that many of you are visiting us for the latest exciting news as we near the end of the Supreme Court term, but my own take is that this Term is proving to be notably quiet.

  Compared to past Terms, it seems like hardly anything has happened. Maybe it's just that the Court's docket was particularly low (especially in my area, criminal procedure, where almost nothing happened). And maybe the race-in-the-schools case will be a blockbuster when it comes out. But with just a few decisions left, it seems like the Term is notable for the fact that the docket was small and most of the decisions were pretty narrow.

  I'm making a relative point, of course. What the Supreme Court does is often important, even if it's less important than past years. And you can always take the camera and zoom in to make the little things seem big. But the major story of the Term seems to be not what happened this Term, but rather what might happen in the future if trends and clues continue. Which itself help makes the point: it's been a pretty quiet Term.
really?:
Off topic, but has this turned into the Kerr Conspiracy? No complaints here.
6.25.2007 6:22pm
Waldensian (mail):
I'll zoom the camera: Twombly was big to those of us in the antitrust biz. And sticking the final knife in Conley was big for litigators everywhere.
6.25.2007 6:27pm
fffff:
I'll second Waldensian. If you practice under the FRCP, Twombly was huge. (And its still not really clear what it means, either...)
6.25.2007 6:31pm
David Huberman (mail):
Aaron Street certainly agrees with you, Professor Kerr. His (wonderfully entertaining) Supreme Court Newsletter issues this year has been replete with "... and in this snoozer of a case, the Court said...", most exemplar of which I think is Sinochem.
6.25.2007 6:48pm
DDG:
I'm a patent attorney. It was a big term for us, although no one is quite sure what KSR means in practice (if anything at all).
6.25.2007 6:55pm
Just a Nut (mail):
The term is not as quiet as it seems. The Court merely stuffed its ears to keep out the din outside.

The Constitution requires a ban on cruel punishment, the Court yawned as hundreds are held in solitary in Guantanomo and elsewhere while debating by means of hints and winks which low level of due process to apply. Of course, the right to a speedy trial went out of fashion a long time ago. Instead exemplary punishment has been meted out to even suspects without any trial or charges being properly brought about.

A few more of these quiet terms, and we would have little use for the judicial system-especially if you run foul of those in power.
6.25.2007 6:55pm
OrinKerr:
Just a nut,

To be clear, when I say "the Term" I mean the cases the Supreme Court heard and decided this year, not the events that happened in the country or around the world that raise important legal questions.
6.25.2007 7:00pm
JosephSlater (mail):
In employment discrimination, I think the Ledbetter case was arguably a big deal. First, it will make a significant class of pay discrimination claims much harder to make than if the case had come out the other way. Second, there is already a significant movement afoot in Congress to reverse the decision by statute -- something that could realistically happen, at least if a Dem wins the Presidency in 2008.

Also, the abortion decision (that was this year, right?) is significant in being the first S.Ct. case to uphold a restriction on abortion where the restriction contained no "health of the woman" exception.
6.25.2007 7:14pm
Laura S. (www):
Lithwick seems to disagree with you:

The Roberts court is hopelessly split down purely ideological lines, and earlier promises of minimalism, restraint, and collegiality are pretty much down the toilet.


Okay, that quote might be unfair because she presents it as recapping someone else's opinion. But I heard her on NPR this morning, and that sounds to be her own opinion as well.
6.25.2007 7:15pm
steve lubet (mail):
School desegregation decisions still to be announced (tomorrow) -- could have tremendous implications.
6.25.2007 7:22pm
OrinKerr:
Interesting, Laura. I wonder what the basis is for Lithwick's opinion.
6.25.2007 7:23pm
David Huberman (mail):
I would refute any allegations of a loss of collegiality among Court members. Breyer, during his appearance this March on NPR's "Wait wait! Don't tell me!" program stated that in his 12 (now 13 years) as a member of the Court that not once had a word been uttered in anger in the Conference. Since the proceedings of the Court are extremely closed (especially in the context of 2007 America), anyone purporting to know the level of collegiality among Court members is likely espousing their own fantasy.
6.25.2007 7:28pm
Kent Scheidegger (mail) (www):
The fact that the Court issued an actual majority opinion in Morse v. Frederick ("Bong Hits 4 Jesus") rather than a splintered opinion, despite the wide gulf between Thomas on one side and Alito and Kennedy on the other, illustrates that the Court is hanging together better than it used to. That is a good thing.
6.25.2007 7:41pm
John P. Lawyer (mail):
Orin,
I agree with you the degree that the Court did not issue opinions (or at least didn't seem to) in politically scintillating areas. But I think a reason for that is that the Court issued its major "political" opinions throughtout the term, rather than all at once (now whether this was by design or by accident I am not sure). Those opininos that are (or were) likely to engender the greatest political response (Carhart, FEC v. WRTL, EPA ("global warming case"), school district cases, etc.) were not all issued in June. And so I think that's perhaps a reason we don't feel that the Court had a "blockbuster" year. But from strictly a legal perspective, I agree with the poster above - Twombly is a blockbuster opinion - it could (and should) have a dramatic effect on civil litigation unlike few substantive rulings could. This term is also important, as Balkin pointed out, for giving us a better sense of how Robert and Alito would (and will) deal with precedent that they disagree with. Apparently, Roberts will pretend that the Court is not overruling precedent, but not really offer any meaningful way to distinguish it. If he's ok with this sort of intellectual dishonesty, so be it. Only could the Supreme Court overrule Stenberg, McConnell and Flast, but not overrule them. (And yes, I know Roberts didn't "author" all of those opinons.)
6.25.2007 8:32pm
DRJ (mail):
The members of the Court seem remarkably collegial, from the outside, given their political and/or ideological differences. The Court's decisions may seem restrained compared to prior terms but I think the big story is that after opinions are released, Court watchers are talking about the rationale of each decision instead of the politics. I attribute this to CJ Roberts' efforts to narrow holdings to principles with which a (sometimes bare) majority can agree.
6.25.2007 9:04pm
OrinKerr:
John P. Lawyer,

I'm curious about something. Can you elaborate on why it's intellectual dishonesty to read a case narrowly and arguably alter its impact without expressly overruling it? Is the idea that whenever the Court decides a case that takes a lot of the force from another, it has an intellectual duty to announce the prior case is overruled? If so, why? There's a pretty big difference between actually overruling a decision and narrowing it considerably, especially in the lower courts, right? Is there a similar intellectual duty to announce when a court is expanding a case rather than following it?
6.25.2007 9:07pm
dwlawson (www):
Speaking of bong hits, if the student was standing outside school grounds as indicated, what right did the principal have in confiscating the banner?
6.25.2007 10:25pm
luagha:
dwlawson, it was a 'school-sponsored event'. Which I find the weakest part of this whole thing, but I'm not on the Supreme court.
6.26.2007 2:09pm