In anticipation of this week’s school-board cases, news wires across the country have been flooded with analysis of the court. Their conclusion is the same as mine: the court has shifted to the right and it isn’t going to get better for a while. Robyn Blumner of the St. Petersburg Times has a particularly interesting peice about how the court has gotten meaner this year.

The addition of Chief Justice John Roberts and Justice Samuel Alito to the heartless duo of Justices Antonin Scalia and Clarence Thomas has cemented a plurality for cruelty. If there’s a choice between casting their lot with the little guy and tipping a case toward compassion, or putting a foot on his throat, it’s a safe bet that these four will be getting out their boots.

I don’t know if I’d go that far. I think the most important difference between the court in the past and the court this year is the influx of broad 5-4 decisions. In the past, the court made very well-calculated, long-term shifts in policy and law. In the last two years, and specifically this year, the court has swung wildly to one side (the conservative one) if even one justice (Kennedy) is the difference between one outcome and another. In the biggest liberal victory of the term, Massachusetts v. EPA, the court made only a minor step to the left by suggesting that the EPA had an obligation to regulate emissions. The biggest conservative decision to date, presumably Gonzales v. Carhart, made an equally small policy impact (outlawing a single type of procedure) but used wildly pejorative terminology and sexist talking points.

This week’s cases are likely to be split down the middle in the same way the court’s other major cases have turned out. I wouldn’t be surprised if Morse v. Fredrick isn’t even close, but I would be truly shocked if the school-board cases turn out any way except 5-4.


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