So far, there has been only one, something that contrasts with the early pattern of the Roberts Court. But with only half the cases decided and many high-profile cases yet to come, will there be more? Or has the addition of two more top-flight legal minds helped to swing more liberal justices to conservative opinions?

Something is happening, clearly. The question is what. The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. The District of Columbia gun control case, the latest case on the rights of the Guantánamo detainees and a case on whether the death penalty is a constitutional punishment for raping a child are yet to be decided.

Still, there is a clear pattern in the cases the court has already decided this term. The court upheld KentuckyÂ’s method of execution by lethal injection by a vote of 7 to 2. It upheld IndianaÂ’s law requiring photo identification at the polls by a vote of 6 to 3. The justices voted 7 to 2 on Monday to uphold the latest federal effort to curb trade in child pornography.

All were major cases, all plausible candidates for 5-to-4 outcomes. All were government victories, hardly surprising coming from a conservative court. But even Justice John Paul Stevens, the leader of the courtÂ’s beleaguered liberal bloc, voted with the majority in all three cases. The surprise was that the government side won each so handily.

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. KentuckyÂ’s lethal injection protocol passed muster, but the court left open the possibility that another stateÂ’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin ScaliaÂ’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.

So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.

I'd argue there is some truth to the last point. That said, though, the justices have produced opinions that are undeniably conservative, but well-grounded in precedent. And it is the stability of the law (consistent with the dictates of the Constitution, of course) that has been a point of importance for both sides in their recent discussion of the role of the court. If the justices have found a way to accomplish that end, it bodes well for the nation.

Posted by: Greg at 10:09 PM | No Comments | Add Comment
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