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Sunday, December 21, 2014         

NEW YORK TIMES


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First amendment dominates court's latest term


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WASHINGTON » The Supreme Court term that ended Monday was marked by accomplishment and anticipation. The court continued its work on two signature projects of Chief Justice John Roberts: defending free speech and curbing big lawsuits. And it dropped occasional hints about the blockbusters on the horizon.

The First Amendment dominated the term, with the court ruling for funeral protesters, the makers of violent video games, drug marketers and politicians who decline public financing. The U.S. commitment to free expression, the court said, cuts across politics and commerce, requires tolerance of offensive speech and forbids the government from stepping in when powerful voices threaten to dominate public debate.

In cases involving the nation's largest private employer, Wal-Mart, and the nation's second-largest cellphone company, AT&T Mobility, the court tightened the rules for class actions and made it easier for companies to do away with class actions entirely by using form contracts.

All of the decisions this term were scrutinized for clues about the arc of the Roberts court as it settles into a period of consolidation and awaits a series of colossal cases, notably the challenges to the health care law championed by President Barack Obama. This term was significant, but the next one may include the most important clash between the Supreme Court and a president since the New Deal.

In the just-completed term, the court's commitment to free speech and its growing business docket sometimes intersected, as in the cases on drug marketing and video games.

"For the conservatives," said Lee Epstein, a professor of law and political science at Northwestern, "the First Amendment continues to trump other values, especially if they can help business in the process."

On Monday the court agreed to hear another First Amendment case of interest to the business community, this one concerning the Federal Communications Commission's broadcast indecency rules.

Business groups said their success in the court during the term was mixed, and the numbers support them, as the court repeatedly ruled for plaintiffs in employment and securities cases.

But business groups won the most consequential cases, including what a U.S. Chamber of Commerce lawyer called "the triple crown of this year's business docket."

The lawyer, Robin S. Conrad, executive vice president of the chamber's litigation unit, was referring to the Wal-Mart and AT&T cases, along with one rejecting a suit from six states against several power companies over carbon dioxide emissions.

"These three cases," she said, "were easily the most important business cases of the term."

The justices decided about 20 percent of their cases on 5-4 votes, which is in line with recent terms. But the number of 5-4 decisions in which the court's four liberals found themselves on one side and its four conservatives on the other was high: Twelve of the 14 closely divided cases were configured that way, with Justice Anthony M. Kennedy casting the decisive vote.

The justices like to say they are merely applying legal principles to facts without regard to ideology. But the chances of nine truly independent judges finding themselves in just two configurations a dozen times out of 14 is remote. Epstein and Andrew D. Martin, a political scientist at Washington University in St. Louis, calculated the odds as 1 in 44.2 quintillion.

Kennedy, the court's swing justice, voted with its more conservative members in those dozen cases two-thirds of the time.

A theme ran through those decisions, said Judith Resnik, a law professor at Yale.

"The same majority of five has imposed new barriers to claimants," she said, referring to the Wal-Mart and AT&T cases, along with ones about prosecutorial immunity and injury suits against the makers of generic drugs. As a consequence, she said, "the doors are closing in both federal and state courts."

Jeffrey L. Fisher, a law professor at Stanford, said that was partly because the justices were wary of judicial power.

"This is a court that is, oddly enough, very suspicious of the courts as a place to vindicate rights," he said. "The hostility is amped up when it's a civil-rights-type claim."

The trends were not uniform, and Kennedy joined his more liberal colleagues to cast decisive votes in cases ordering California to reduce its prison population and requiring children's ages to be taken into account in deciding whether Miranda warnings are needed.

The court seems to have entered a period of stability. After 11 years with no changes in personnel through 2005, the court welcomed four new members in five years, starting with Roberts and ending with Justice Elena Kagan last year. There have been no hints of further retirements.

For the first time, there are three women on the Supreme Court: Kagan, Ruth Bader Ginsburg and Sonia Sotomayor. They are all reliable members of the court's liberal wing and were very often in agreement, according to statistics compiled by Scotusblog. Kagan voted with Sotomayor 94 percent of the time and with Ginsburg 90 percent of the time.

Only two justices agreed more often than Kagan and Sotomayor, who were both appointed by Obama. Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush, agreed 96 percent of the time.

The new members of the court are active participants at arguments.

"They bring a lot of energy to the court," said Lisa S. Blatt, a Supreme Court specialist at Arnold & Porter. "It's a more exciting court in general."

Perhaps too exciting.

In remarks at a judicial conference Saturday, Roberts said the court must work harder "to allow the lawyers to give us some kind of answer and to make sure we're not stepping on our colleagues' questions."

Kagan was recused from about a third of the term's decisions, a byproduct of her service as U.S. solicitor general. Her absence caused the court to deadlock in two cases and in part of a third.

Kennedy was the member of the court most often in the majority — 94 percent of the time. But Roberts voted with the majority almost as often — 91 percent of the time. The chief justice dissents sparingly and has worked to produce decisions in which the court can find common ground.

The term did not produce a blockbuster like the Citizens United campaign-finance decision last year on corporate political speech or the Heller decision in 2008 on gun rights.

But there are major cases in store.

"Next term is going to be the term of the century," said Thomas C. Goldstein, a leading Supreme Court advocate and the publisher of Scotusblog.

There is a chance the court will confront not only challenges to the health care law but also cases involving same-sex marriage, immigration and affirmative action. The next term's big decisions will land a year from now, just as the 2012 presidential election season kicks into high gear.

The challenges to the health law, now making their way through several federal appeals courts and raising fundamental questions about the limits of the federal government's power, are the subject of particularly intense interest. As a consequence, every decision this last term was scrutinized for hints about the justices' attitudes toward the central argument in the suits — whether Congress overstepped its constitutional authority under the Commerce Clause in requiring some people to buy health insurance.

On Thursday, Justice Stephen G. Breyer, writing for himself and Ginsburg and Kagan in a case about the marketing of drugs, said health care laws "regulate commerce and industry."

A week earlier, Kennedy, writing for a unanimous court in a 10th Amendment case, used sweeping language to tie federalism concerns to individual liberty, a notion central to the arguments of the states and groups challenging the health care law.






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