The Potemkin Supreme Court Term?

In 1783, the Russian Empire officially annexed the Crimean Peninsula (it had won the Peninsula from the Ottoman Turks in the previous decade). Empress Catherine the Great appointed her former lover and favorite Grigori Alexandrovich Potemkin-Tavricheski as Governor of “New Russia.” Whatever else may be said about Potemkin, he did not suffer from a lack of ambition, and set about attempting to turn the backwoods peninsula into a jewel in Catherine’s crown. He developed the important port of Sevastopol, established the Black Sea fleet, founded several more towns, and brought hundreds of thousands of settlers to the steppes to cement Russian influence.

These improvements did not come cheaply. So Potemkin orchestrated a grand tour for Empress Catherine of her new Southern lands, to show the money was well-spent. But the new lands, while improved under Potemkin’s guidance, were not quite up to the standard of St. Petersburg. To compensate for this, the story goes, Potemkin erected what would later become known as “Potemkin Villages,” constructing elaborate façades on the village fronts along the route followed by Catherine, which hid the dismal, grubby reality of the town on the back streets.

In many ways, the 2006-07 Supreme Court term may soon be viewed as a Potemkin village for judicial conservatives. The term — the first full term featuring both Chief Justice Roberts and Justice Alito — was hailed as an almost total success for conservatives. Judicial conservatives notched up important wins in cases involving partial-birth abortion, campaign finance restrictions, and affirmative action, and several other 5-4 decisions that went their way. At the end of the term, the Wall Street Journal editorial board felt elated, while the New York Times editorial board certainly felt deflated.

But a careful review of the cases from that term demonstrates that the wins were not the tidy victories for conservatives that they appeared as at first glance. For example, in Parents Concerned, which considered the use of race in high school placements, Justice Kennedy’s concurring opinion explicitly allows for some use of race in high school placements, while at the same time ruling out the explicit racial balancing allowed by the school districts. Similarly, in Morse v. Frederick, the famous “Bong Hits 4 Jesus” case, the Justices held that the school could discipline students for holding up the aforementioned banner. But Justices Alito and Kennedy wrote a very narrow concurring opinion, which significantly limits the scope of the holding. And Justice Kennedy provided the fifth vote striking down certain death penalty laws and forcing the E.P.A. to consider regulating greenhouse gasses.

It is not accidental that Justice Kennedy’s name consistently shows up here. While some conservatives hope that Chief Justice Roberts’ steadying conservative presence has “brought Kennedy back around,” the simple fact is that Justice Kennedy has long been moderate conservative at best, stretching back to his days on the Ninth Circuit. The makeup of the cases in the 2006-07 term simply played to issues where his conservative instincts are at their highest: Cases involving campaign finance, affirmative action, partial birth abortion, etc., are all cases where Justice Kennedy had previously sided with the conservative bloc, and where the law was expected to change with Justice O’Connor’s departure.

This term is different. The “premier” case of the term is probably the “DC Guns” case, where the Court will consider the District of Columbia’s ban on handguns (and, effectively, other guns). The four conservative justices will probably vote to strike down the ban. We can also expect that the four liberals will vote to uphold it (though court watcher Jan Crawford Greenburg is not so certain. That leaves Justice Kennedy, who is often sympathetic to expanding individual liberties, but who also frequently votes with the liberals on high-profile, “social issues.” He may well decide that the Second Amendment does not guarantee an individual right to bear arms.

More ominously from the conservative point of view, the Court can be expected to continue chipping away at the death penalty. Justice Kennedy has recently voted with the Court’s more liberal members to strike down death penalty laws, and is expected eventually to vote to strike down Louisiana’s law imposing the death penalty for rape of a child. A challenge to the use of lethal injection is before Court this term, and Kennedy is widely viewed as holding the cards that determine whether the Court strikes down lethal injection on narrow grounds or broad grounds. A less high profile death penalty case involves whether a prosecutor can play the “OJ Card” (reminding a white jury that OJ “got away with it”); this too is a case where Kennedy can be expected to split the difference, and where his previous voting history indicates that he may not vote with the conservatives.

Similarly, in US v. Williams, the Court may continue its skepticism of Congressional efforts to slow the spread of child pornography on the internet, and vote to strike down the PROTECT act of 2003. (Scalia and Thomas may actually join Kennedy and the liberal Justices in voting to strike down the act). Kennedy will probably decide whether or not to allow states to require use of a photo i.d. before voting; his vote here is unpredictable. Finally, there is the marquee War on Terror case of Boumediene/Al-Odah v. Bush. This case involves the constitutionality of provisions of the Military Commissions Act of 2006. Because the Court had previously denied the writ for certiorari, it would have taken five votes to change its mind and grant the case. The rare change of course is taken as a signal that the Court has the five votes to reverse, and that Justice Kennedy is one of those votes.

Journalists often search for easy narratives, and the series of landmark decisions not written by Justices Stevens of Ginsburg made the “conservatives are victorious” narrative and easy one to push. This term, the façade may quickly fall off of that narrative. Just in time for an election.