ND Expert: Supreme Court opens new term

by Michael O. Garvey


When the Supreme Court opens its new term Monday (Oct. 6), it will be hearing a docket of less controversial cases than those of the previous two terms, according to Richard W. Garnett, associate professor of law in the Notre Dame Law School.

For now,Garnett said,the big story about the Supreme Court is not the cases the justices have agreed to hear, but is instead the effect that the upcoming presidential election will have on the courts membership and direction.

The next president will almost certainly have the chance to nominate at least two justices to the court.Most court-watchers expect that the next retirements will come from the courts more liberal wing.If Sen. Obama is elected, he would be able to replace these retiring justices with like-minded nominees, just as President Bush was able to do when Chief Justice Roberts and Justice Alito replaced Chief Justice Rehnquist and Justice OConnor.

A President McCain, however, would probably have the opportunity to move the court as a whole in a more conservative direction,Garnett said, but added thatthe Senate, which will certainly be controlled by Democrats, will have its say.

Noting that the courts new caseload includes several cases involving environmental laws, federal regulations of commerce, and the rights of suspected criminals, Garnett observed thatthe docket is thin on cases involving the kinds of mattersfor example, church-state relations, abortion, and affirmative actionthat tend to capture the attention of the public and the press.

I suspect,he said,that this is the way Chief Justice Roberts likes it.While the court is on a pace to hear more cases this year than it did last year, the chief justice has made it clear that he believes the courts role should be a limited one, and that it should not reach out to decide questions it can avoid.

As to the future direction of the court, Garnett said,for the past few years,it has seemed to many that the current court consists of Justice Kennedy and his supporting cast.And, its true that Justice Kennedy has, for better or worse, been in the majoritysometimes a conservative majority, sometimes a liberal majorityof almost every controversial 5-4 decision during the past few years.

If Sen. McCain is elected, it is almost certain that Justice Kennedy will quickly matter less.If Sen. Obama is elected, I believe that Justice Breyerwho has a clear vision, as Justice Scalia does, regarding the role and responsibilities of the courtwill almost certainly matter more, and will emerge as the leader of his wing of the court.

_ Contact: Professor Garnett at 574-631-6981 or_ " Garnett.4@nd.edu ":mailto:Garnett.4@nd.edu

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