By Angie King

With the new Supreme Court term beginning October 5 (first Monday in October) the Court will have its hands full and a new face on the bench. Congratulations to Justice Sonia Sotomayor, the first Latina and only third woman to sit on the Court. For the first time since Justice O’Connor retired in 2006, there will be two women on the court!

The liberal-conservative balance hasn’t changed, however. Souter, whose place she takes, was considered one of the four liberals. The Roberts/Scalia/Alito/Thomas conservative bloc is still formidable, with Justice Anthony Kennedy still often the swing vote.
According to scholar Erwin Chemerinsky, in the term just ended, the court decided almost one-third of the 75 cases decided by 5-4 votes. Kennedy was in the majority in 18 of those. In the 16 of those cases Chemerinsky identifies as splitting on ideological grounds, Kennedy voted with the conservatives in 11 cases, cases that drastically changed the shape of American jurisprudence. One such case was the New Haven firefighters’ case, where the Court found that the city violated the rights of white firefighters when it did not use the test results of a promotion exam because the effect of promoting those with the higher scores would result in discrimination against the non-white candidates, a reverse discrimination claim. It was race in this case, but it could just as easily have been gender.

Even before the term officially starts, the full court will consider new arguments in a case about whether sections of the McCain-Feingold Campaign Financing Act passed in 2002 are constitutional. The case turns on the prohibition in the Act against ads aired within 60 days of an election which come from corporations (including non-profit corporations, like NOW) and which support or oppose a named candidate. The case arose when TV stations refused during the last primary election to air a movie, submitted by a conservative non-profit group, which was derogatory toward Hillary Clinton. The group, Citizens United, sued the Federal Elections Commission claiming the section of the law they cited to ban the movie is unconstitutional. The case is important because it may gut hard-fought bipartisan legislation designed to curb electioneering excesses.

Let’s hope the wisdom of a Latina helps shift the Court’s balance. Let’s hope she makes friends with Kennedy and convinces him to join her and become the 5th vote for a more liberal position.