In a recent article Linda Greenhouse, who covers the Supreme Court for The New York Times wondered, “Where have all the 5-to-4 decisions gone? And whatever happened to the “Kennedy Court”? She frets, “Something is happening, clearly. The question is what.” The something that’s happening:

A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases – the highest proportion in years – had been decided by margins of a single vote.

But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

Greenhouse speculates about the what part – really, the why:

The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. …

Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term. …

None of this is to suggest that whatever strategic decisions the justices are making are being made collectively. The court is by its nature an atomistic institution, its actions the aggregation of determinedly individual decisions. But if any one individual is smiling, it is no doubt Chief Justice Roberts. By this time last year, he had cast seven dissenting votes. So far this term, he has dissented only once.

Several days before this article was published, the Supreme Court upheld the PROTECT Act, which imposes a mandatory five-year prison term on anyone who “advertises, promotes, presents, distributes or solicits … any purported or actual child pornography over the Internet or via snail mail, ruling in a 7-2 decision that free speech rights were not violated by the 2003 law. Greenhouse writes that “Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.”

The ruling “gives prosecutors a powerful weapon to go after those who talk about child pornography online. It also appears to take away a defense for those who say the material they were discussing involves computer images, not depictions of real children engaged in sex,” reports the Los Angeles Times:

Speaking for the court, Justice Antonin Scalia said the law can punish an “outright liar” who offers illegal material as well as the truthful seller. “We hold that offers to provide or requests to obtain child pornography are categorically excluded from the 1st Amendment.”  …

Scalia also rejected the claim that the law could apply to someone who offers “a harmless picture of a child in a bathtub.” To be charged with a crime, the sender “must believe” the purported material is sexual in nature.

And Scalia dismissed claims that the law could apply to mainstream movies, like “Traffic” or “Titanic” that depict adolescent sex, or to classic literature, like “Romeo and Juliet,” as “fanciful hypotheticals.”

In his concurring opinion, Justice John Paul Stevens, pointed out that material with “serious literary, artistic, political or scientific value” would still be protected, because the law requires that the “defendant actually believed, or intended to induce another to believe, that the material in question depicted real children” involved in sexual conduct.

Justice David Souter dissented, joined by Justice Ruth Bader Ginsburg. Souter drew a distinction between promoting purported child porn and possessing it, with the latter not being prosecutable: “I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law’s criminalization of pandering proposals.”

Souter also disagreed that the PROTECT Act did not restrict free speech: “Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this act.”

Why is this important? The Los Angeles Times explains (the third paragraph of this snippet comes dangerously close to hysteria):

Whoever is elected in November will probably have the chance to appoint at least one justice in the next presidential term. The court’s two most liberal justices are its oldest: John Paul Stevens turned 88 last month, and Ruth Bader Ginsburg is 75.

McCain promised that, if elected, he would follow President Bush’s model in choosing Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

That could establish a large conservative majority on the court for years. With conservatives in full control, the court would probably overturn Roe vs. Wade and the national right to have an abortion. The justices also could give religion a greater role in government and the schools, and block the move toward same-sex marriage.

If elected, Obama would be hard-pressed to create a truly liberal court. But by replacing the aging liberal justices with liberals, he could preserve abortion rights and maintain a strict separation of church and state.

During the campaign Obama has praised Justice Stephen G. Breyer, and said his “models” would be Ginsburg and Souter. In a CNN interview, he said he wants judges “who are sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless” – particularly in cases involving civil rights and civil liberties.

Washington lawyer Bradford Berenson who went to Harvard Law School with Obama tells the Los Angeles Times, “Much as I like and respect Barack, I think his vision of judging couldn’t be more wrong. Whereas McCain wants our judges and Supreme Court justices to be faithful to the Constitution … and decide cases according to law, Barack seems to think judges should systematically favor certain parties or groups and decide cases according to their personal sympathies or feelings about how who needs or deserves help.”

As Sen. Jon Kyl (R-AZ) noted during a recent appearance on “Fox News Sunday”: “[O]f course, you bring all of your life experiences into the decisions that you make, but just because you’re sympathetic toward someone doesn’t necessarily mean that they should win the case.”

With Souter and Ginsburg as Obama’s archetypes, it’s a safe bet that a high court dominated by liberals will be more sympathetic to the rights of sickos who enjoy viewing people passing themselves off as children engaging in sex acts than the current court.

Note: The Stiletto writes about politics and other stuff at The Stiletto Blog, chosen an Official Honoree in the Political Blogs category by the judges of the 12th Annual Webby Awards (the Oscars of the online universe) along with CNN Political Ticker, Swampland (Time magazine) and The Caucus (The New York Times).

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