Erwin Chemerinsky’s Review of the 2008 Supreme Court Term

Here, published in the Green Bag.

An excerpt:

CTOBER TERM 2008 LACKED the blockbuster decisions

of the prior Term, in which the Court ruled that the

Second Amendment protects a right of individuals to

possess firearms apart from militia service,1 held a key

portion of the Military Commissions Act of 2006 to be an unconstitutional

suspension of the writ of habeas corpus,2 and concluded

that the death penalty for child rape is cruel and unusual punishment.

3 But the recently completed Term contained an exceptionally

large number of decisions that changed the law in areas that affect

lawyers and judges in their daily work. Strikingly, practically all of

these rulings – in areas such as the federal-court pleading standards

in civil cases, the scope of the exclusionary rule, and the protections

from employment discrimination – moved the law in a more conservative

direction.

There is an easy explanation

OCTOBER TERM 2008 LACKED the blockbuster decisions of the prior Term, in which the Court ruled that the Second Amendment protects a right of individuals to possess firearms apart from militia service, held a key portion of the Military Commissions Act of 2006 to be an unconstitutional suspension of the writ of habeas corpus, and concluded that the death penalty for child rape is cruel and unusual punishment. But the recently completed Term contained an exceptionally large number of decisions that changed the law in areas that affect lawyers and judges in their daily work. Strikingly, practically all of these rulings – in areas such as the federal-court pleading standards in civil cases, the scope of the exclusionary rule, and the protections from employment discrimination – moved the law in a more conservative direction.