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Deception at the Supreme CourtThe upcoming term will look like a move to the left. Don't be fooled.

By Thomas Goldstein
Updated Friday, Sept. 28, 2007, at 7:31 AM ET

(Continued from page 1)

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.

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Tom Goldstein heads Akin Gump's Supreme Court practice, teaches Supreme Court Litigation at Stanford and Harvard law schools, and is the founder of SCOTUSblog, where a longer version of this piece appears.
Photograph of a Guantanamo Bay detainee by Paul J. Richards/AFP/Getty Images. Photograph of Supreme Court justices on Slate's home page by J. Scott Applewhite/Associated Press.
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