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.

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).

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