This is going to be a big week in Supreme Court. Elena Kagan’s confirmation hearings begin on Monday. That is the same day we likely will see some of the Term’s big decisions. I will be doing some blogging on Yahoo! News, though if you want some immediate thoughts keep reading.
There are at least two major pending cases that likely would come down on Monday. There is the case involving the constitutionality of Chicago’s gun ordinance. And there is another case challenging the constitutionality of the agency Congress set up to patrol accounting firms after the Enron and WorldCom scandals.
It is not obvious why the Chief Justice would have wanted these cases to happen on the same day that millions tune into the Kagan hearings, if there is anything in the decisions that will lead to heat on the current five-member conservative majority. Typically the Chief has some control over when decisions come down. So, some guesses:
1. The decisions will not come down in a conservative direction. This is not my best guess – I think the Chicago ordinance and the congressional agency are going down.
2. The liberals on the Court were still drafting opinions in response so that release was not ready earlier, when it would be less of a problem. Or maybe the liberals stalled things out for precisely this reason.
3. If the decisions don’t come down this week, then I’m guessing the Chief had a hand in making sure the collision didn’t happen.
If you think I’m painting the justices as a little too Machiavellian . . . well, this very sort of thing happened in the spring of 1937 as the country was considering FDR’s plan to pack the Supreme Court. Want to hear more? Read chapter 7 of my book (including the footnotes!) and Jeff Shesol’s great new book on the Court-packing plan, Supreme Power.