The Minimalist Court

If I had to describe the major theme of the October 2007 term, it would be the court as a minimalist court with no surprises. There were no major revolutions this term. Even the big cases were narrow and interstitial. The court mostly took baby steps. It may not seem that way this week, with big cases like Boumediene , Heller , and Kennedy v. Louisiana . But step back a bit. Even these big cases were actually really narrow. Boumediene went where the court very strongly hinted it was going in Rasul v. Bush back in 2004: The court’s reasoning was limited to the few hundred detainees at Guantanamo Bay and did not order anyone’s release. Kennedy v. Louisiana filled in a detail  hinted at in Coker v. Georgia . The court’s opinion deals only with child-rape capital cases, of which Kennedy’s own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun-control laws are all constitutional. This isn’t to say that there were no important cases this term. But on a historical scale, the 2007 term is revealing a minimalist court: It intervenes rarely, doesn’t say much when it speaks, and leaves most battles for another day.