The most important event in the last quarter of the Term was, of course, the retirement of Justice Kennedy and nomination of Judge Brett Kavanaugh to replace him. Justice Kennedy has been pretty much in the center of the Court during the last few years, generally voting with the four “liberal” justices on civil liberties issues and with the four “conservative” justices on other issues. But it is risky to define a justice or to predict how a person will react to a specific issue in a specific case. Justice Scalia, for example, insisted that the Confrontation Clause of the Sixth Amendment required a jury decision on every fact that might affect a sentence (Apprendi v. New Jersey, 530 U.S. 466 (2000)) and wrote the majority opinion in Kyllo v. United States, 533 U.S. 27 (2001), which held that the Fourth Amendment prohibits agents from using the modern technique of heat imaging as the basis for a search warrant. Perhaps when the October 2018 Term begins, observers will have a new ninth justice to watch.
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