Balkinization
Yup. That lede of Linda Greenhouse's just about captures the October 2006 Term.The three primary exceptions were (i) the Masschusetts v. EPA decision (especially for its discussion on standing); (ii) the four Texas death-penalty cases that Greenhouse discusses, demonstrating that "the state and federal courts" in Texas "remain to the right of the Supreme Court" -- to the right of a 5-4 majority, anyway; and (iii) Executive war powers, where yesterday's stunning grant of the petition on a motion to rehear in Boumediene suggests that at least in this one area, Justice Kennedy might continue to break with his conservative colleagues.
Of course, a large part of this decided trend can be explained by Justice Alito replacing Justice O'Connor. At the time of her resignation, I identified 31 5-4 decisions in her final decade on the Court that could very well be overturned by a Court with a more conservative Justice replacing her. (That list can be found here. ) So far, only two of those precedents have been (de facto) overruled -- but they're big ones: Carhart and the BCRA title II section of McConnell. And although Grutter was not overruled, its impact was severely ... more »
