Tom Goldstein over at SCOTUSblog has a great piece reflecting on the recent Supreme Court term and the future of that body. Even if Sotomayor is confirmed (as is probable), Goldstein sees the court continuing a rightward trend through Obama's second term (which seems likely, if not probable).

Here is what strikes me most about this Term.  The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role.  To be clear, that isn't the Court's principal occupation.  Most of its docket is filled with important but ordinary questions of federal law.  But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases.  NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended.  Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I'm right about the direction of the case law, the Court's methodology is striking.  It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law.

He goes on to say:

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left.  If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left.  Nothing changes.

It isn't until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court's ideology.  Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now).  Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left.  Over the course of eight years, it is possible to take enough measured steps to walk a marathon.

That isn't to say that the conservatives have the votes to undo the legacy of the Warren Court.  The contrast between the five-to-four Caperton (constitutionalizing a right in extreme cases against decisions by a judge in favor of a supporter) and Osborne (rejecting a claimed due process right to DNA testing) demonstrates that Justice Kennedy is far from committed to the project.  So too do his narrower opinion in Parents Involved and his refusal to overrule the exclusionary rule.  Also, he will not retreat from providing a fifth vote on certain questions of executive power, the death penalty (execution of minors and the mentally retarded), and gay rights.

But Justice Kennedy is not the swing vote of Justice O'Connor, and on questions like race, religion, abortion, and campaign finance I think he is ready and willing to continue to move the law.  He voted with the left in five 5-4 decisions this Term.  But in every case that I view as genuinely important and ideologically freighted, he voted with the right:  Ricci, Iqbal, Bartlett, Osborne, Penn Plaza, Gross, Herring, Flores, and Montejo.  Caperton is the only arguable counter-example.

I have just a few thoughts on this.

First, you should read the whole piece. It's very thoughtful and informative.

Second, while I really find the SCOTUS fascinating (and important) as the last stop in our system of checks and balances, I find it becoming too political for my taste. The right selectes and confirms right wing Justices, same for the left. Left wing justices decide their retirement plans based on political timing, same for the right. And you can usually predict with high accuracy how the court will rule before the first oral argument is made.

Finally, things being as they are, the makeup of the court is a big deal in presidential elections. My guess is that in 2012 Scalia (less likely Kennedy) with throw a few winks and nods toward retirement, throwing the right into a fit. This seems to me like a boon to the religious right who have suffered mightily among recent scandals and could also make Obama more cautious on his second-term appointments.