Friday, June 22, 2007
Michael Dorf comments, at Dorf on Law:
As I noted last week (here), Tom Goldstein is projecting the current Supreme Court Term as VERY conservative (here). Jeff Toobin makes the same point in The New Yorker (available here, and while you're over at The New Yorker, check out Seymour Hersh's utterly frightening account of what happened to General Taguba for uncovering the truth about Abu Ghraib, but then come back to Dorf on Law). Here I'll tentatively observe something about the character of the 5-4 decisions we're seeing. Perhaps a close reading of all of this Term's cases wouldn't bear this out, but my subjective and informal impression is that when the Court splits 5 (Roberts/Scalia/Kennedy/Thomas/Alito) - 4 (Stevens/Souter/Ginsburg/Breyer), the 5 are basically ignoring or dismissing objections raised by the 4.
Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000 decision in Nebraska v. Carhart; yet Justice Kennedy's opinion, while drawing a plausible distinction with respect to the notice issue, basically punted on distinguishing the Nebraska case with respect to the health exception. The majority could have said it was overruling the Nebraska case, but for their own reasons they didn't want to, so their response to the dissenters was the jurisprudential equivalent of a shrug.