Eminent Domain

Linda Greenhouse of the national secret clearing house known as the New York Times has blessed us with her end of the term wrap up for the Court. Greenhouse points out that Roberts is not "in control" of the Court yet. Well, count the votes. We've got 4 conservatives, 1 squishy conservative-moderate, and 4 liberals. You need the magic number of 5 to be "in control", and Justice Kennedy's squishiness is in full effect. Let's see what Linda's got to say...

So if it wasn't yet the Roberts court, what exactly was it?

Perhaps it was the Kennedy court, based on the frequency with which Justice Anthony M. Kennedy cast the deciding vote in important cases.

Or perhaps it was more accurately seen as the Stevens court, reflecting the ability of John Paul Stevens, the senior associate justice in tenure as well as in age, to deliver a majority in the case for which the term will go down in history, the decision on military commissions that rejected the Bush administration's view of open-ended presidential authority.

The Kennedy point is correct and painfully obvious. He is the one in control. I think that the Stevens point is way off base. If you listened to the oral arguments, Kennedy's vote was not in play. With Roberts sitting the case out on recusal, there were only 3 solid conservative votes. In addition, Roberts' recusal meant that Stevens assigned the opinion. Hamdan, the horrible decision that it was, was no coup for Stevens.

The Georgetown vote study that Greenhouse quotes is interesting...

A separate analysis, by the Supreme Court Institute at Georgetown University Law Center, showed that Justice Alito and Chief Justice Roberts had the highest agreement rate of any two justices in the court's nonunanimous cases, 88 percent, slightly higher than the agreement rate between Justice O'Connor and Justice David H. Souter in the first half of the term, 87.5 percent.

Chief Justice Roberts agreed with Justice Scalia in 77.5 percent of the nonunanimous cases and with Justice Stevens, arguably the court's most liberal member, only 35 percent of the time. The least agreement between any pair of justices was between Justices Alito and Stevens, 23.1 percent.

Ah, that's like a warm blanket straight from the dryer on a cold Winter day.

Greenhouse finishes the article with a decent summary of the major decisions of this term. Take a look at it in case you forgot the important developments in patent law.