Last year, we were told the Supreme Court had become the “Court that conservatives had long yearned for and that liberals feared.” With the addition of Chief Justice Roberts and Justice Alito, there was now a more reliable five justice conservative majority — a “phalanx” in Ronald Dworkin’s words — that would push the law in a rightward direction.
After one more Supreme Court term, it’s clear that many spoke too soon. Sure, conservatives are cheering the Heller decision, but how “conservative” is a Court that invalidates the death penalty for child rape and declares that non-citizen detainees held outside U.S. sovereign territory by the military have a constitutional right to bring habeas actions in federal court, despite federal legislation to the contrary?
Viewed as a whole, this term saw a Court that often defied easy ideological characterization. There were relatively few 5-4 splits, particularly compared to OT2006, and many 5-4 divisions along untraditional lines. Overall, it was a Court term that defied the “conservative ascendancy” narrative.
I have more on OT2007 in this column on NRO.
UPDATE: I am also part of an online “debate” about this past term sponsored by the Federalist Society. Other participants include Mark Tushnet, Rick Pildes, Allyson Ho, Jack Beerman, Erik Jaffe, Jeff Rosen, Ed Whelan, Steven Calabresi, Marty Lederman, and Chuck Cooper. Thus far, it is more like a roundtable discussion than a “debate,” but it may become more contentious as we focus in on the specifics of individual cases.