Strengthening Constitutional Self-Government

No Left Turns

Let’s Make This More Interesting

I accept Hayward’s Supreme Court challenge, but think we need to add a few factors to make it more interesting. I fear that all the contestants are going to give similar answers to the Grutter question, so I would suggest that all contestants should also give their predictions on who will retire from the Supreme Court this term.

I personally predict a very dismal coming week for NLT readers who follow the Supreme Court. The best I think we could hope for from the Supreme Court would be if the Supreme Court dodged the question of whether diversity is a compelling state interest, deciding instead that the University of Michigan’s program is clearly not narrowly tailored. That isn’t my bet, however. Here, then, are my predictions:

(1) The Supreme Court states in the Michigan cases something slightly stronger than Bakke, but just as undefined. Look for a classic O’Connoresque ruling to the effect of "diversity is almost never a compelling interest except for sometimes . . . ." The decision will likely be written by the Chief if it has any merit to it at all. You will know that all hope is lost if he assigns it to O’Connor.

(2) There will be NO retirements. The Supremes have set the campaign finance case for oral arguments a month before the regular session begins. This suggests to me that the Chief does not intend to go anywhere. I have heard the argument that the Chief might be doing this to press the Senate’s hand--that is, to encourage them to fill the seat by September. I’m not buying it. I think he’s hunkering down for the long haul. O’Connor has been making all the motions of a farewell tour, but the sense, at least among outsiders, has been that she would take her cue from the Chief. The other unspoken candidate for retirement is Stevens. Most people forget that he was appointed by Ford, and up until Bush v. Gore made rumblings about wanting to wait to retire until a Republican was in office. But his opinion in Bush v. Gore suggests that he may live to 100 just out of spite. Don’t look for him to retire before the next Presidential term. Thus I predict that barring health failures, we will see the same court after the 2004 election as we see today.

Finally, my bonus prediction. The Court will strike down the Texas sodomy law in Lawrence v. Texas in an opinion written by Kennedy. The decision will be based exclusively on Equal Protection grounds, and will not reach the privacy arguments (although there will likely be arguments made in the concurrences suggesting that the court should have reached the issue, and should overturn Bowers v. Hardwick). The decision will come very close to ratcheting up review of sexual orientation discrimination to intermediate scrutiny, but will not do so, at least not expressly. Kennedy and O’Connor will attempt to put language in the opinion to distinguish this from "slippery slope" arguments, such as gay marriage. Finally, Scalia will issue a dissent which will peel paint off the Supreme Court’s walls.

Those are my predictions, now I open it to my co-bloggers, particularly Claeys and Eastman, to play along.

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