It’s somewhat predictable. Another Supreme Court term ends, and commentators make sweeping generalizations based upon the result in a handful of cases. Thus, pundits proclaimed the arrival of a conservative revolution after the October 2006 Term, only to mount a hasty retreat after the October 2007 term failed to follow the script.
Wednesday’s Washington Post features a story with a headline proclaiming this term saw a “move to the Right.” Yet the most notable, and surprising, decisions this term were not sudden shifts to the Right, but the Court’s failure to do so — it’s failure to declare portions of the Voting Rights Act unconstitutional in NAMUDNO, its failure to find preemption in Wyeth v. Levine and Cuomo v. Clearing House, its failure to endorse broad executive power to disregard environmental laws in NRDC v. Winter. As the Post story acknowledges, this was more a Court “on the verge” than it was a Court clearing new ground.
This court may be more-likely-than-not to decide any given case in a “rightward” direction, but it is not particularly likely to move the law to the Right. So, for example, in Osborne the Court rejected the invitation to create a constitutional right to post-conviction DNA testing. This is a “conservative” result, but it was not a change in the law. The failure to recognize new constitutional rights does not a conservative shift make. Four years in to the Roberts Court, it’s hard to identify a meaningful rightward shift comparable to its continued leftward shifts in many areas (as in Boumediene, Kennedy v. Louisiana, Mass. v. EPA, Caperton, etc.).
As I have maintained for some time — since pundits were rushing to proclaim that the Roberts Court had become radically conservative after the October 2006 term — the dominant features of the Roberts Court are a) a conservative minimalism that favors narrow holdings and generally seeks to maintain precedent, and b) the idiosyncratic jurisprudence of Justice Kennedy, which controls the outcome (and the tenor) of so many decisions. The end result is a moderately conservative Court, but one that is almost as likely to lurch Left as it is to inch to the Right.
Next term may well challenge my view, however. Indeed, it could turn out to be quite unpredictable (and revealing). The Court has accepted quite a number of cases that may force it to address big questions, including the Appointments Clause (Free Enterprise Fund v. PCAOB), regulatory takings (Stop the Beach Renourishment v. Florida DEP), and the Commerce Clause (Comstock), and that’s not even counting the reargument in Citizens United or the prospect of another gun rights case. Throw a new justice into the mix, and we’re going to have fun with this one. Given the substance of some of these cases, I suppose it’s a no-lose proposition for me. Either the Court confirms the line I’ve been taking, or it shows some interest in curtailing federal power. Any bets which it will be?