In a recent article Linda Greenhouse, who covers the Supreme Court for The New York Times wondered, “Where have all the 5-to-4 decisions gone? And whatever happened to the “Kennedy Court”? She frets, “Something is happening, clearly. The question is what.” The something that’s happening:

A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases - the highest proportion in years - had been decided by margins of a single vote.

But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

Greenhouse speculates about the what part – really, the why:

The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. …

Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term. …

None of this is to suggest that whatever strategic decisions the justices are making are being made collectively. The court is by its nature an atomistic institution, its actions the aggregation of determinedly individual decisions. But if any one individual is smiling, it is no doubt Chief Justice Roberts. By this time last year, he had cast seven dissenting votes. So far this term, he has dissented only once.

Several days before this article was published, the Supreme Court upheld the PROTECT Act, which imposes a mandatory five-year prison term on anyone who “advertises, promotes, presents, distributes or solicits … any purported or actual child pornography over the Internet or via snail mail, ruling in a 7-2 decision that free speech rights were not violated by the 2003 law. Greenhouse writes that “Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.”

The ruling “gives prosecutors a powerful weapon to go after those who talk about child pornography online. It also appears to take away a defense for those who say the material they were discussing involves computer images, not depictions of real children engaged in sex,” reports the Los Angeles Times:

Speaking for the court, Justice Antonin Scalia said the law can punish an "outright liar" who offers illegal material as well as the truthful seller.

“We hold that offers to provide or requests to obtain child pornography are categorically excluded from the 1st Amendment.”  …

Scalia also rejected the claim that the law could apply to someone who offers “a harmless picture of a child in a bathtub.” To be charged with a crime, the sender “must believe” the purported material is sexual in nature.

And Scalia also dismissed claims that the law could apply to mainstream movies, like “Traffic” or “Titanic” that depict adolescent sex, or to classic literature, like “Romeo and Juliet,” as “fanciful hypotheticals.”

In his concurring opinion, Justice John Paul Stevens, pointed out that material with “serious literary, artistic, political or scientific value” would still be protected, because the law requires that the “defendant actually believed, or intended to induce another to believe, that the material in question depicted real children” involved in sexual conduct.

Justice David Souter dissented, joined by Justice Ruth Bader Ginsburg. Souter drew a distinction between promoting purported child porn and possessing it, with the latter not being prosecutable: “I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law's criminalization of pandering proposals.”

Souter also disagreed that the PROTECT Act did not restrict free speech: “Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this act.”

Why is this important? The Los Angeles Times explains (the third paragraph of this snippet comes dangerously close to hysteria):

Whoever is elected in November will probably have the chance to appoint at least one justice in the next presidential term. The court's two most liberal justices are its oldest: John Paul Stevens turned 88 last month, and Ruth Bader Ginsburg is 75.

McCain promised that, if elected, he would follow President Bush's model in choosing Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

That could establish a large conservative majority on the court for years. With conservatives in full control, the court would probably overturn Roe vs. Wade and the national right to have an abortion. The justices also could give religion a greater role in government and the schools, and block the move toward same-sex marriage.

If elected, Obama would be hard-pressed to create a truly liberal court. But by replacing the aging liberal justices with liberals, he could preserve abortion rights and maintain a strict separation of church and state.

During the campaign Obama has praised Justice Stephen G. Breyer, and said his “models” would be Ginsburg and Souter. In a CNN interview, he said he wants judges “who are sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless” – particularly in cases involving civil rights and civil liberties.

Washington lawyer Bradford Berenson who went to Harvard Law School with Obama tells the Los Angeles Times, “Much as I like and respect Barack, I think his vision of judging couldn't be more wrong. Whereas McCain wants our judges and Supreme Court justices to be faithful to the Constitution … and decide cases according to law, Barack seems to think judges should systematically favor certain parties or groups and decide cases according to their personal sympathies or feelings about how who needs or deserves help.”

As Sen. Jon Kyl (R-AZ) noted during a recent appearance on “Fox News Sunday”: “[O]f course, you bring all of your life experiences into the decisions that you make, but just because you're sympathetic toward someone doesn't necessarily mean that they should win the case.”

With Souter and Ginsburg as Obama’s archetypes, it’s a safe bet that a high court dominated by liberals will be more sympathetic to the rights of sickos who enjoy viewing people passing themselves off as children engaging in sex acts than the current court.

Editorial Note: If Obama wants “sympathetic judges” in civil rights cases, then he should look for those in the mold of Justice Samuel Alito, who was in the majority on two rulings that made it easier for workers to sue employers for retaliating against them as payback for filing discrimination complaints. Chief Justice John Roberts and Alito joined in Breyer’s majority opinion in favor of Hedrick Humphries, a former Cracker Barrel restaurant assistant manager in Bradley, IL, who claimed he was fired after filing a complaint over allegedly race-based demeaning treatment by another Cracker Barrel manager. Alito also wrote the majority opinion allowing 45-year old postal employee Myrna Gomez-Perez to pursue retaliation claims under the federal Age Discrimination in Employment Act.

One Man’s Meat Is Another Man’s Poison (Or: How I Stopped Worrying And Love The Recession)

All the bad economic news coming from Washington and Wall Street got you down? Here’s some good news: It’s boom times for people, who profit from others’ misfortune. A few cases in point:
 

† “This is an excellent time to be a repo man,” according to The New York Times. The paper profiles Jeff Henderson, who has “never been busier” in the 20 years he’s been in the boat repo business:

Boating was traditionally the pastime of the well-off, but the long housing boom and its gusher of easy credit changed that. People refinanced their homes and used the cash for down payments on a cruiser, miniyacht or sailboat. From 2000 to 2006, retail sales for the recreational boating industry rose by more than 40 percent, to $39.5 billion, while the average loan amount more than tripled to $141,000.

Mr. Henderson’s company, Harrison Marine, has seven employees as well as half a dozen part-timers, making it one of the largest boat repo operations in the country. …

Mr. Henderson, 48, is repossessing nearly a boat a day, most from the Great Lakes area but a few farther afield. He is looking for a man from the Bronx named Rocko, who told the bank his 34-foot cruiser was at a marina that does not exist. He is trying to get a Michigan woman to tell him where to find her husband’s pontoon boat. …

When he meets strangers and they ask what he does, he merely says he is in the marine industry. He has repossessed the boats of friends and one relative, a cousin. “Somebody’s got to do it,” he said. “Might as well be me.”

† Habitat for Humanity has been able to take advantage of the foreclosure crisis by buying empty lots and unoccupied homes for as little as half price, reports The Associated Press:

In the Minneapolis area and elsewhere, the charity that offers affordable housing to low-income families is buying foreclosed homes and using volunteers to renovate them. If that's not practical, the houses are torn down to make way for new dwellings. In some cities, Habitat is even buying parts of subdivisions that developers couldn't afford to finish.

Habitat officials don't see themselves as capitalizing on the misfortune of others. They say putting families into affordable Habitat homes is much better than allowing properties to remain vacant or letting slumlords grab them.

“We're stepping up to the plate to provide some viable solutions to the housing crisis,” said Sharon Rolenc, a spokeswoman for Twin Cities Habitat for Humanity. She said vacant homes can drive up crime and reduce the value of neighboring property.

Roger Schwierjohn, president and CEO of the Habitat chapter in Phoenix, said the local real estate market has long attracted outside investors who bid up land and home prices without adding any value.

“If they fall by the wayside, so be it,” he said. “What we try to do is provide value and access to home ownership to families that would otherwise not be able to afford it.”

† “The surge in foreclosure has been good for business” for contractors like David Law and Trey McCallister who are hired by mortgage companies “to inspect and maintain houses that once-proud owners can no longer afford and no one else wants,” reports The New York Times. “These days, business is brisk”:

It can take months, even years, for some homes to wind through foreclosure in the backlogged local courts.

The longer a home sits vacant, the more vulnerable it becomes. …

Local and state governments have become concerned about the upkeep of foreclosed homes, which can drag down real estate values in neighborhoods and provide havens for drug users and gangs. Over the last year, localities have stepped up code enforcement by levying fines on mortgage companies for the degradation of homes they are repossessing. …

Tim Doehner, executive director of the National Association of Mortgage Field Services, a trade association based in Ohio, estimates that most of his members have doubled their revenue in the last year. Individual contractors can bill as much as $5,000 every two weeks, said Jimmy Lyons, one of the partners in the firm, Landwise Inspection Services of Lake City, Fla., that Mr. McCallister and Mr. Law work for.

† Los Angeles Times columnist Meghan Daum has personally experienced the upside of the economic downturn - plumbers, electricians and other handymen actually return her calls:

[W]hen I called my plumber about a leaky bathtub faucet and a clogged garbage disposal, he actually answered the phone. Second, he came over the very next day. Third, he finished the whole job right then and there.

Suddenly feeling cocky about home improvement, I called my electrician. For months there'd been a gaping hole in the living room ceiling where an antique light fixture I'd bought had yet to be rewired and mounted because I was too daunted by the electrician's usual schedule to bother calling. To my shock, he came over almost immediately, took the fixture home and brought it back first thing the next morning with new wiring, new bulbs and a dimmer switch, all of which he promptly installed. He even complimented my exquisite taste in Art Deco lighting. …

[T]hey both told me they were hurting for work. The plumber, who in the past averaged six or seven calls a day, was now getting just one or two. The electrician told me he suddenly had more time to surf.