First Monday: A New Year at the Supreme Court

Today the Supreme Court begins a new term, and so far there is little for either constitutional scholars or the general public to get excited about. While two years ago the Court split 5–4 in a full third of its cases (with Justice Kennedy in the majority on each one), and last year produced fewer such decisions (and also fewer unanimous and 8–1 verdicts) but maintained sharp divides on high‐​profile cases involving Guantanamo Bay, the Second Amendment, and the death penalty, the current term seems to lack any striking features. Instead we have a raft of cases involving technical issues of statutory interpretation and minor doctrinal adjustment, especially in the areas of environmental and employment law, and criminal procedure. Even the typically riveting First Amendment cases fall flat, with the FCC’s obscenity regulation turning on administrative procedure and the lone religion matter concerning a quixotic use of private speech in a public forum. We can expect to see most of these cases decided by broad majorities on narrow grounds, perhaps reflecting the “minimalist” approach Chief Justice Roberts allegedly prefers. Still, given the small number of cases — the Court filed a leisurely 67 opinions on the merits after argument last year (the lowest number since 1953) and is on pace for not many more this term — it’s hard to read any trends into the Court’s work. And the last time Court watchers protested this much about the “boring” nature of the docket, October Term 2000, we ended up with the little‐​known case of Bush v. Gore. We will see very soon whether next month’s election — or indeed the bailout — will make history repeat itself.