Lyle’s look back: Supreme Court term in review

[Editor’s Note: For Lyle Denniston’s complete roundup of the term’s major rulings, click here]

A capacity crowd gathered yesterday at the lunchtime program “Supreme Court Term in Review,” presented by Lyle Denniston at the National Constitution Center. Denniston—the Center’s recently appointed Advisor on Constitutional Literacy—has covered the United States Supreme Court for more than 50 years and serves as a regular contributor to the award-winning SCOTUSblog.com. He recently debuted his “Constitution Check” column on the Center’s blog, Constitution Daily. As Denniston noted in his opening remarks, “I’d like to try and bring a Supreme Court presence more vividly in the Center’s work…Like the Constitution, the Supreme Court is not an abstraction. It’s something that is a part of all our lives.”

In its just-concluded annual term, the Supreme Court released 82 rulings. While noting that the Supreme Court does not think in yearly blocks of time—but rather thinks in terms of “continuity”—Denniston explored some of the most significant rulings of the past term and how these decisions will impact the lives of Americans. He also provided an insider’s perspective on the justices and how certain key trends are shaping our judicial system.

Lyle Denniston on the Roberts Supreme Court:

“The four youngest members of the court are two justices on quite the far right [Chief Justice Roberts and Justice Alito]…and two justices on the left side [Justices Kagan and Sotomayor]. I think we can anticipate, over the next generation or two, that those four justices will be the anchors of the two competing ideological blocks on the Court.”

“[Chief Justice] Roberts has had to be more of a traffic cop than he’s ever been in his previous four years…Justices are stepping over each others’ lines, a lot.”

“One gets the sense in hanging around the Roberts court that there’s an impatience there. All these really tough and fascinating issues come up and, ‘by God, we need to decide them!’”

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On three key trends of the Supreme Court:

1.      A continuing trend: “Anthony Kennedy is clearly the dominant figure on the Court…whenever the Court is divided 5-4 you can almost surely bet that Anthony Kennedy will be the one who swings the Court to the liberal or the conservative side.”

2.      A developing trend: “This is a very activist court…activism where the Court decides a case at a broader level than they need to.”

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3.      A promising trend: “Sotomayor sits on the far left of the bench, Kagan sits on the far right of the bench, and Ruth [Bader Ginsburg] sits right next to the Chief Justice…I think it’s quite clear that a woman’s influence on the substance of jurisprudence is going to make a difference.”

On the Brown vs. Entertainment Merchants Association and Entertainment Software Association decision (violent video games):

“The decision about the California law that prohibited the sale or rental of violent videos to children – anyone under the age of 18 – was a product of an ongoing campaign in the Court to resist the idea that we should create new exceptions to the free speech clause of the 1st Amendment…By the way, I invite you to read Justice Scalia’s opinion in the California case because it is Scalia at his very naughty best.”

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On the Wal-Mart Stores v. Dukes case:

“You take one million women working for Wal-Mart, in 3,800 stores, with legions of different supervisors, and with a decentralized form of employment policy in which a lot of authority is logged in the store manager. There is no way, no way that one million women employees can have the same legal complaint…The court added that question intentionally to end the case.”

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On the Justices:

“Justice Thomas, I will tell you, is the most misunderstood Judge in this country. Thomas is, in a word, brilliant…but he does not participate in oral argument, and he makes a forfeiture by that. Oral argument in the Supreme Court is definitely an agenda-setting opportunity.”

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“There used to be a saying around the Court that when you become a justice you’re to be seen and not heard for five years before you learn how the place works. Well, here is Elena Kagan, not one hour prior to being on the Court, having sat on any court at any level, having served only one year as the government’s chief lawyer in the Court, never otherwise having appeared in the Court as an attorney, and she’s really a very dominant presence.”

On Guantanamo Bay detainees:

“The D.C. Circuit has made a virtual hash of the whole doctrine of the law of detention…The D.C. Circuit has now disposed of something like 36 cases on final merits of which 32 detainees had won a release order in the district court. Not one of them was sustained by the Court of Appeals.”

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“Essentially what you’re talking about here, ladies and gentlemen, is a concept of permanent war…As a civil society, are we ready to have permanent war as our new normal? And, the next question then is, are we ready to pursue a concept of permanent war with absolutely no judicial check upon it?”

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