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The Supreme Court's 2006-2007 Term

The Shift to the Right Takes Shape

By Jane Perkins, Gill Deford, Matthew Diller & Gary F. Smith

Chief Justice Roberts had hoped in this past term to achieve “a greater degree of consensus.” This has not happened since the Court continues its ideological shift to the right with Justice Kennedy as the all-important swing vote. The Court continued to close the courthouse door to plaintiffs in a variety of contexts. In upholding the dismissal of a class action suit charging Sherman Act violations, the Court created a heightened fact-pleading requirement. In a bit of good news, the Court found a state to have standing to challenge the failure to regulate greenhouse gas emissions. However, the Court narrowed taxpayer standing to challenge executive branch actions. In school desegregation cases the Court seemed to create a new theory of standing where the possibility of harm suffices as “injury-in-fact” allowing students not harmed by school policies to challenge those policies nevertheless. The Court engaged in interesting Chevron analyses to uphold agency regulations and policies and rejected attorney fee-shifting where a preliminary injunction was subsequently overturned.

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