Richard W. Garnett, John Cardinal OHara, C.S.C., Associate Professor of Law in the Notre Dame Law School, suggests that the upcoming Supreme Court term will challenge conventional wisdom.
Much of the commentary about the Supreme Courts last term has included the claim that the justices have made a sharp turn to the right,Garnett says.In fact, the evidence does not support this claim.Even the high-profile cases involving racial classifications in public-school assignment, campaign-finance rules, partial-birth abortion, and speech in public schools were, all things considered, narrow in their scope and modest in their reach.
The main reason the last term seemed conservativeis that the menu of cases the justices had before them included several issues on which Justice Anthony Kennedythe new swing votehas well established, fairly conservative positions.
Looking ahead to the upcoming term, however, the menu is quite different.The justices have on their docket a number of casescases involving the detention of suspected terrorists, the regulation of child pornography, and the death penaltyin which it is likely that the more liberalpositions will win out.That is, that they will win out in Justice Kennedys mind.When they do, will the end-of-the-year commentary conclude that the court has turned dramatically to the left?Not likely, and nor should it.
A member of the Notre Dame law faculty since 1999 and a former clerk for the late Chief Justice William H. Rehnquist, Garnett teaches courses on criminal law, criminal procedure, First Amendment law, and the death penalty.
_ Contact: Professor Garnett at 574-631-6981 or_ " Garnett.4@nd.edu ":mailto:Garnett.4@nd.edu
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