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Friday, June 29, 2012

The 2011 Term and the Progressive Legal Agenda

With the ACA decision in the rearview mirror, I thought I'd take a quick stab at a more holistic reaction to the Supreme Court term that effectively came to a close yesterday. And at first blush, it certainly seems as if the October 2011 Term was a shockingly successful one for progressives--especially if one considers the bullets that were dodged. Maybe it's just that the bar is so low in light of the past few Terms, but here are a few highlights:

I don't mean to oversell the point. I have to think that progressives certainly won't be happy with decisions like Knox v. SEIU; the double-jeopardy analysis in BluefordFlorence (the prison strip-search case); Coleman (the FMLA/Section 5 case); and a host of decisions (and decisions not to decide) that I'm sure I'm forgetting and/or underselling. And it also says everything about how low progressive expectations are that the Court ducking big decisions is, in many cases, tantamount to a progressive "victory." But even some of the "defeats" for progressives came on far narrower terms than they might have, such as the reasoning-less summary reversal in ATP v. Bullock (the Citizens United sequel)--which would almost certainly have looked much different on plenary review.

To be sure, there are storm clouds on the progressive legal horizon: the UT affirmative action case; Shelby County and the future of the VRA; the reargument in Kiobel; the Article III standing question in the constitutional challenge to the FISA Amendments Act; and a host of other cases in the food chain in which the Court's conservative majority is likely to assert itself at the expense of progressives. But that's next year. For now, I imagine most progressives will look back on the 2011 Term with a massive sigh of relief about what could've been, but wasn't.

Posted by Steve Vladeck on June 29, 2012 at 05:33 AM in Constitutional thoughts, Steve Vladeck | Permalink


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Dan: Indeed! Thanks for flagging that... I look forward to your thoughts.

Posted by: Steve Vladeck | Jun 29, 2012 12:01:12 PM

Just a couple small tweaks, Steve.
a) Juvenile LWOP is definitely still a possibility, but it can't be required by the state. For reasons I'll explore in a separate post, I'll offer some thoughts on whether this is such a great outcome.

b) harmless lying is still criminalizable. The SCT didn't strike down 1001 laws, and there's no requirement of harm there. So they have some 'splaining to do.

Posted by: Dan Markel | Jun 29, 2012 11:59:07 AM

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