In baseball parlance, the most recent Supreme Court term included a bunch of singles, but no home-runs.
The Court decided 72 cases out of the thousands of petitions that are submitted annually. Chief Justice Roberts ended his second full year at the helm, with Justice Samuel Alito completing his first full year, having arrived on the Court half-way through the '05-'06 term. Overall, the term yielded some modest victories for social conservatives – more of a perceptible inching in the right direction than huge lurches.
As most observers anticipated, the Alito-for-O'Connor replacement delivered hoped-for change on several hot-button issues in which Justice Sandra Day O'Connor had provided the fifth vote to the liberal wing of the Court in the past, most notably on partial birth abortion and McCain-Feingold restrictions on issue advertising.
Regarding partial-birth abortion, the Court upheld (by a 5-4 vote) a federal ban that was passed following the Court's 2000 ruling striking down a Nebraska state ban by another 5-4 margin, where O'Connor was the swing vote. The federal law corrected the problems with the Nebraska law, and was upheld in Gonzales v. Carhart in April. The ruling was modest – Roe v. Wade was not touched – but was nevertheless an important and incremental step for inserting ethics, morality and a concern for abortion's effect on women back into the legislative process. That concern for morality and emotional damage to women drew howls of protest from the Left (including Justice Ruth Bader Ginsburg in her dissent) which, frankly, was out-of-proportion to the actual legal effect of the majority ruling.
As for issue advertising, the Court struck down the McCain-Feingold campaign financing law's "blackout" requirements prior to federal primaries and general elections as infringements of the free speech rights of a Wisconsin right-to-life group that wanted to broadcast ads urging an end to Senate filibusters of judges. Although three justices – Scalia, Thomas and Kennedy – favored striking down the entire "blackout" provision of McCain-Feingold, the three went along with the Chief Justice and Justice Alito, who opted for the more moderate course of saving the "blackout" provision, where ads might rise to the "functional equivalent" of campaigning for or against a federal office-seeker.
Other decisions provoked outcries from the Left as well. The school cases involving Seattle and Louisville's attempt to use race as a deciding factor in school assignments in certain situations was struck down in a 5-4 decision. If you're at all interested in that decision's relationship to or impact on the famous 1954 desegregation decision in Brown v. Board of Education, you have to read Justice Clarence Thomas's concurring opinion, which powerfully refutes the liberal wing's revisionist attempts to turn Brown upside-down.
In Hein v. Freedom From Religion Foundation, the Court rejected an attempt by an atheist group to use "taxpayer standing" to object to President Bush's attempts to publicize his faith-based initiatives. Although the Court left in place a wrong-headed Warren Court-era ruling creating the taxpayer standing loophole in the first place, this particular line-drawing in Hein at least didn't widen the loophole, which has been used to attack expressions of faith (especially Christian) in the public square for the last four decades.
There's no question that, at times, Roberts and Alito did not go as far as the more conservative justices Scalia and Thomas would have preferred. However, Roberts and Alito lived up to their own confirmation hearing self-descriptions as "modest" judges favoring "judicial restraint," deciding cases on the narrowest grounds possible. So rather than labeling one pair as right and the other as wrong, I'd characterize the two sets of conservatives as "both right," with the longer-serving Thomas and Scalia simply more impatient for change than the two newest justices.
One measuring stick of the Court's leanings to either the conservative or liberal side on many constitutional issues is to look at Justice Kennedy's swing vote in 5-4 decisions. According to the court-watchers at Scotusblog.com, in the 19 cases this term in which all four liberal justices were on the opposite side of the four conservatives, with Kennedy provided the deciding vote, 13 broke for the conservative wing, six for the liberal. Hardly a conservative revolution.
Some things never change at the Supreme Court. Once again the ultra-liberal 9th U.S. Circuit Court of Appeals lived up to its "9th Circus" reputation by suffering reversals in 18 of 21 appeals from its decisions. That's 86 percent, with the rest of the circuits combined suffering only a 66 percent reversal rate. And I stopped counting the number of unanimous reversals of the 9th Circuit after the first eight.
Overall, it was a good term of the Court for conservative issues, but not exceptional. Given the decibel level of liberal complaints, though, you'd think that the barbarians were at the gates. The Left's current Court-induced hysteria is all about blocking future conservative judges and justices, which we're already seeing with respect to the Senate Judiciary Committee's obstruction of appellate court judges like 5th Circuit nominee Leslie Southwick. The mainstream media from coast to coast aid and abet these tactics.
Don't buy into the liberal hype. We're still fighting six to seven decades of leftward constitutional "drift" thanks to the FDR and Warren courts, and we still need conservative judges at all levels of the federal system to even begin to turn the Titanic around.
But at least we're no longer heading directly at the iceberg.
