At a conference of the American Bar Association this morning, UC Irvine Law Dean Erwin Chemerinsky reviewed the last term of the U.S. Supreme Court and gave a sneak preview of the 2008-2009 term that starts on Monday. Besides being an official law school dean (opening fall of 2009), this Constitutional Law guru is not shy about sharing his views of the current Court.
Among his observations from the last term:
- The Supreme Court is definitely turning into a "pro-business" court. He noted that issues like preemption of state laws were not falling along some ideological lines, but rather reflected a overall view that tends to remove restrictions on businesses.We”re likely to see this theme repeated this year.
- The Supreme Court’s caseload continues to decline noting that the court decided less than 70 cases. As a result, he said, the decisions are becoming wordier and longer. He did note, however, that the Court is likely to increase its caseload this year based on the numbers of cases it has already agreed to hear.
- He said that although court eras are typically named after the Chief Justice, he said he viewed the current court as the "Kennedy" Court. He noted that in virtually all of the 5-4 decisions decided by the Court, Justice Kennedy was in the majority.
- Despite the number of employment law cases decided last term, Professor Chemerinsky didn’t highlight those cases has having particular significance, pointing rather to the Court’s decisions in the gun-rights case or the Guantanamo Bay detainees, for example, as noteworthy.
As for the upcoming term, he indicated that there were a few cases that would be interesting, but nothing as ground-breaking as last term. He noted that a case involving FDA-approved warning labels and an FCC cases involved "fleeting expletives" were likely to receive the most press.
Lastly, he highlighted the fact that the upcoming Presidential election may decide whether the Court becomes conservative or remains split among ideological lines. He noted the obvious: that two of the oldest justices (Stevens and Ginsburg) are likely to retire soon. If McCain is elected President, he may have the opportunity to appoint two conservative justices to serve on the court for years — if not, decades — to come.
The Workplace Prof blog has a noteworthy post this afternoon as well about the upcoming Supreme Court term. They predict that it may very well be a "blockbuster" year. But as with box-office predictions, the best bet is to wait and see how the Supreme Court decides.