The days are getting shorter, the temperatures are falling, and the leaves are changing color, which can only mean one thing -- the Supremes are back.

It's been almost three months since the justices adjourned for their annual summer recess, but not before providing an abrupt reminder that conservatives have not taken control of the Supreme Court yet.

Late last June, just a day after the last decision for the term had been issued, and on their way out of Washington, the justices agreed to hear a pair of cases brought by detainees held in Guantanamo Bay concerning whether they could sue in the federal courts for writs of habeas corpus.  In other words, the High Court will decide whether foreign enemy combatants possess a constitutional right to challenge their military detentions in our federal courts.

The decision to hear the detainee cases in the new term that begins Monday came as quite a surprise.  After all, the justices had already refused to hear those very cases when the detainees' lawyers originally filed their petitions for certiorari earlier in the term.  Thus, the rare reversal required the Court not only to agree to hear cases that had already been rejected, but it also required the vote of an extra justice to do so.  (Generally, the justices agree to hear cases based on the "Rule of Four," meaning that it takes the votes of only four justices to hear a case.  But when the Court initially denies a petition, it then takes the votes of five justices to grant rehearing.)

Moreover, journalists and commentators were abuzz with just how conservative the Supreme Court had become with the additions of Chief Justice John Roberts and Associate Justice Samuel Alito.  Indeed, from almost any point of view, the conservative wing of the Supreme Court had run the table in the term that had just ended.  In addition to striking down race-based student assignments to public schools, the Court had ruled that a McCain-Feingold campaign finance restriction was unconstitutional as applied to a not-for-profit group, that states could prevent labor unions from spending non-member money on political campaigns, that taxpayers didn't have standing to challenge government funding for faith-based initiatives, and that a student could be punished for displaying a pro-drug message at a public school event.  Quite simply, the liberals didn't win almost at all, and when they did it was on relatively lower profile and less significant matters.

But the justices' end-of-the-term decision to hear the detainee cases showed that liberalism on the Supreme Court of the United States is not yet dead.  The surprise also clearly showed the single reason why the conservatives had not taken control of One First Street -- and that reason is Justice Anthony Kennedy.

While Supreme Court reporters and constitutional commentators were touting the overwhelmingly conservative term that had just ended, many relegated an even more astounding feat to an inconspicuous burial in their stories and op-eds.  There were 24 cases decided by a single vote (5-4) last term, and Justice Kennedy was the fifth vote in every one of them.  In other words, the Supreme Court is only as conservative -- or, for that matter, as liberal -- as Justice Kennedy.  And, as will be seen in the new term that begins on Monday, Justice Kennedy is not that conservative.

As explained recently by leading Supreme Court practitioner Thomas Goldstein: "Although the era in which true liberalism was an ideological force on the Court is now over, this is manifestly not a period of conservative hegemony.  Like Justice [Sandra Day] O'Connor, Justice Kennedy's commitment to any ideological world view is too fragile for either wing of the Court to have genuine confidence in the outcome of an entire Term's worth of cases."

In other words, as Goldstein pointed out, it wasn't that the Court irreversibly turned right last term.  Rather, it was just a coincidence that the cases and the issues heard by the justices happened to line up in such a way that Justice Kennedy leaned to the right in deciding most of them.  What's more, for the upcoming term, it appears just the opposite may be true.

Perhaps the two most notable cases to be heard this term will be the detainee cases and an Eighth Amendment challenge to the use of lethal injection in carrying out the death penalty.  On both of these issues, it is pretty clear that Justice Kennedy will lean the other direction, to the left.

With respect to the detainees, not only was Justice Kennedy almost certainly the fifth necessary vote to hear their habeas corpus challenges, but there also would have been no reason to grant the detainees a hearing if the Court was not going to provide some relief.  What's more, Justice Kennedy has been sympathetic to the legal claims of the enemy combatants in the past, just as he has been suspicious of the War on Terror and the President's push for an expansion of executive authority.  Similarly, Justice Kennedy has been the swing vote in cutting back significantly in the area of capital punishment, thus suggesting that he may side with the liberal wing of the Court on the lethal injection case.

Other notable cases this term suggest a similar leftward pattern may prevail.  Thus, quite unlike last term, by the end of June 2008, the headlines might tell America that the High Court has ruled for terrorism detainees, death row inmates, crack cocaine felons, child pornography distributors, gun control activists, and employees who file discrimination suits.  And, America might even believe that the Supreme Court has taken a surprising left turn.  Of course, as Goldstein rightly points out, "the Justices and the views will be exactly the same ... it is the cases that will be different."