With less than one month before the beginning of the new term of the United States Supreme Court, I have been reflecting on the notable lessons from the last term and wondering how the next President might shape the future of the Court.  My hope is that the Democrats can avoid the debacle of the last national election and nominate a candidate who will embrace the traditions of the National Democratic Party.  The next President has a huge challenge, not the least of which is to improve balance and diversity on the Supreme Court.
    It seems clear to almost every close observer that the Court is now the most conservative in the past fifty years.  Also, most would now agree that Associate Justice Anthony Kennedy has assumed the status of former Associate Justice Sandra Day O’Connor as the key swing voter.  The current Court will likely reverse or limit the major civil rights statutes adopted in the wake of American Apartheid, even though it will decide less than half the number of cases rendered by the Court only fifteen years ago.  Finally, as more members of the Court enter the winter of their terms, it is increasingly likely that the next President might have a profound influence on the political balance within the Court.
    President George W. Bush has finally accomplished what former President’s Nixon, Ford, Reagan, and his father could not.  With the consent of the U.S. Senate and after nearly thirty years of effort, the Republicans now have a solidly conservative Supreme Court.  Of course, the great irony is that this has occurred when the Congress is controlled by the Democrats.
    I don’t think it is too soon to speculate that the addition of Chief Justice Roberts and Associate Justice Alito has tilted the Court sharply to the right.  Roberts and Alito have wasted no time illustrating their true colors; they are politically conservative men who will use their enormous power to interpret the Constitution to advance the interests of the powerful, government and business, against the weak.  It appears they will join each other 90 percent of the time and Associate Justices Scalia and Thomas nearly 80 percent of the time, limiting the remedial and corrective power of the Constitution.
    If last term is representative, Justice Kennedy is the pivotal member of the current Court.  Every advocate appearing before the Court, especially in closely contested, controversial cases, will need to secure Kennedy’s vote to prevail.  Of the two dozen sharply divided cases last term, Justice Kennedy was 24 and 0.  Thus, in one-third of all the cases decided last year, Kennedy’s vote was indispensable.  Therefore, despite Roberts’ leadership, it is reasonable to call this Court the Kennedy Court.
    Mr. Justice Kennedy is an unpredictable conservative.  He joined the hard-core conservatives on the Court to strike down a late-term abortion procedure, to strike down racialized efforts to maintain integration in public schools, and to subordinate the important antidiscrimination principles of Title VII to a weak statute of limitations claim advanced by the Bush Administration.  On the other hand, Kennedy implied that government could in some cases adopt policies to eliminate racial isolation in public schools.  He is also the Justice who has not allowed the conservatives to overrule entirely a woman’s right to terminate a pregnancy before viablity.  And, he is the Justice who has insisted that judicial/legislative conservatives cannot deny gay and lesbian persons basic fundamental rights.
    Perhaps Kennedy is best described as a cautious conservative.  I look forward to him clarifying his judicial philosophy over the next few terms.  Perhaps he will shift farther right, similar to how Justice Stevens, the longest serving and oldest member of the Court, has shifted to the left over his term.  He has been on the Court for many years and what we see now may be what we will always get.
    Last term provides an early glimpse of what we might expect of the Court until another Justice joins the Court, likely after the next national election.  I expect the Court to continue its recent trend of deciding only 70 to 75 cases per term.  Under conservative leadership, the Court has significantly cut the number of cases it decides each year.  Since I have long agreed with the view that justice delayed is justice denied, I would prefer the Court to decide more cases.  If there is a silver lining in the few cases currently decided, it is that since I am not a political conservative, this Court is not deciding two hundred cases each year.
    The next major shift for the Court will likely occur when a new Justice is nominated and confirmed.  The current Court is fixed in a 4–1–4 frame.  Because Kennedy votes twice as often with the conservatives, in controversial cases the conservatives have the stronger hand.
    All of that might change if a Democrat wins the White House and the Democrats maintain control of Congress.  In the meantime, all appeals depend on Justice Kennedy’s interpretive vision of the Constitution.  If he is against you, so is his Court, for now.