Saturday, November 28, 2015         


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In Supreme Court term, striking unity on major cases



WASHINGTON >> The last week of the Supreme Court’s term told one kind of story, of a deeply divided court delivering historic victories to the Obama administration in immigration and health care cases. Those decisions obscured a different story about the work of the court, one that unfolded over the last nine months.

A look back at the term just concluded reveals that the court, which has had a reputation for predictable ideological splits, has entered a new phase. This term, it often worked with striking unanimity and assertiveness to review the actions of the other branches of government. Partly for this reason, its relationship to the Obama administration has often been a distinctly adversarial one.

When the court was divided, as it was in the immigration and health care cases, its voting often did not track the usual patterns. There is good evidence that Chief Justice John G. Roberts Jr. has worked hard to insulate his institution from the charge that it has political motivations, an accusation that it is especially vulnerable to because the court’s five more conservative members were appointed by Republican presidents and its four more liberal ones by Democrats.

It was not until Justice Elena Kagan joined the court in 2010 that the justices’ ideological positions largely tracked those of the president who appointed them. Under Roberts, the court has had substantial turnover. In the earlier versions of the Roberts court, Justices David H. Souter and John Paul Stevens, both appointed by Republican presidents, generally voted with the court’s liberal wing.

In the wake of the blockbuster Citizens United decision, which opened the door for corporations and unions to spend as much as they like to support or oppose political candidates, the court was accused of naked partisanship for seeming to favor Republican interests.

But after the current term, the Roberts court has proved itself resistant to caricature. Indeed, in the stunning decision to uphold President Barack Obama’s health care law, which sustained the most significant piece of social legislation since the New Deal, Roberts recast the legacy of his court and boosted the political fortunes of a Democratic president.

The court was united during the term 44 percent of the time, which is not unusual. But it worked as one in major cases, which is.

“Cases that might have been closely divided and very contentious ended up being unanimous,” said Gregory G. Garre, U.S. solicitor general in the Bush administration. “It’s a tribute to the chief justice, and to the whole court.”

The justices all agreed, for instance, that the administration had wholly disregarded the First Amendment’s guarantee of religious liberty in a case concerning how employment discrimination laws apply in churches and religious schools.

That case saw a concurrence from Justice Samuel A. Alito Jr., who was appointed by President George W. Bush, joined by Kagan, appointed by Obama. Such surprising alliances dotted the docket.

Kagan, the newest member of the court, rose in influence. In closely divided cases, she voted with the court’s swing member, Justice Anthony M. Kennedy, more than any other member of the court. Kennedy himself had an unusually balanced term, voting as often with the court’s liberal wing as with its conservative one in 5-4 votes along ideological lines.

The court’s unanimous cases were sometimes minimalist. The court found common ground, for instance, in a modest, unsigned decision in a combustible Texas redistricting dispute, one that seemed largely to satisfy both the state and civil rights advocates.

Other unanimous rulings, like the one in the religious liberty case, were more muscular.

In that one, the court for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

In an important property-rights case, the court ruled unanimously for an Idaho couple who objected to actions of the Environmental Protection Agency designating their property as wetlands and forbidding them to build a home there.

In a major patent case, the court unanimously said that natural laws like the relationship between a drug’s dosage and a patient’s reaction to it may not be patented.

And though the court relied on varying rationales and featured a cautious and confusing majority opinion, it was also unanimous in saying the police may not place GPS devices on cars without taking some account of the Fourth Amendment’s ban on unreasonable searches and seizures.

A theme ran through many of these cases, one that is likely to be lost in the aftermath of the victories the court handed to the Obama administration in the last week of the term. At least five times, sometimes in harsh terms, the court unanimously rejected the administration’s position.

In the environmental case, Justice Antonin Scalia said the government had sought to strong-arm the couple. In the patent case, Justice Stephen G. Breyer said that accepting the administration’s approach would have made “a dead letter” of the exception to patent eligibility for laws of nature.

And in the ministerial-exception case, Roberts said the administration had sought to read religious liberty out of the First Amendment.

“We cannot accept the remarkable view,” Roberts wrote of the government’s position, “that the religion clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

Studies show the solicitor general’s office usually wins 60-70 percent of the time when it represents the government in the court. According to Adam Winkler, a law professor at the University of California, Los Angeles, the office won 11 of 24 such cases last term, or 45 percent.

Such statistics involve subjective choices about what counts as a win, and they are influenced by how often the government was seeking or resisting reversal. They are also, and this term more than ever, vulnerable to the criticism that they treat trivial cases as having the same weight as monumental ones.

Still, Winkler said, the numbers suggest that “if Obama is re-elected, he can count on four more years of conflict with the court.”

The justices decided 65 cases after hearing arguments and 10 others in summary fashion, according to SCOTUSblog, which prepares comprehensive statistics about the court. Overall, Roberts was in the majority 92 percent of the time, just a percentage point behind Kennedy, who is generally thought to be the court’s swing member, and far ahead of his other colleagues.

Not every case is easy to categorize. Indeed, when the justices could not find common ground, they sometimes avoided giving a meaningful answer at all.

In Fox v. Federal Communications Commission, which was strictly speaking an 8-0 ruling, the court for the second time in three years refused to address whether the federal government should be able to regulate vulgarity on broadcast television under the First Amendment in light of changes in the media landscape.

The court did decide an important First Amendment case on the last day of the term, striking down the Stolen Valor Act, which had made it a crime to lie about having received certain military decorations. The vote was 6-3, but there was no clear majority rationale.

The court decided 15 cases by 5-4 votes, roughly in line with earlier terms. It was also not unusual that two-thirds of those decisions divided along ideological lines, with Kennedy joining either the court’s four more liberal members (Breyer, Kagan, Ruth Bader Ginsburg and Sonia Sotomayor) or its four more conservative ones (Roberts, Scalia, Alito and Clarence Thomas).

What was striking this year was that Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Several of the cases in which Kennedy joined the liberal bloc involved the rights of people accused and convicted of crimes. This year, the court turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice, in which plea bargains are the norm and harsh sentences commonplace.

“What the court really was doing this term was bringing the Constitution to previous blind spots in the criminal justice system,” said Jeffrey L. Fisher, a Stanford law professor who argues frequently before the Supreme Court.

In a 5-4 decision concerning sentences of life without parole for juvenile offenders, Kennedy entrusted the majority opinion to Kagan, highlighting a notable alliance. Overall, the two voted together 83 percent of the time. But that alliance did not begin to approach the cohesion on the conservative side.

Only two pairs of justices agreed more than 90 percent of the time. One was Scalia and Thomas, the two members of the court most committed to attempting to apply what they understand to be the original meaning of the Constitution. The other was Roberts and Alito, the two members of the court appointed by George W. Bush.

Those four justices were on the prevailing side in two cases that presented unusual procedural wrinkles. On Monday, for instance, the court quietly reaffirmed the Citizens United decision in a brief, unsigned decision and over four dissents. Critics of Citizens United had hoped the court would at least ask for briefs and oral argument.

A decision in June revising the rules for political spending by unions brought complaints from liberal justices that “the majority’s choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules.”

At the final session of the term on Thursday, several of the justices looked drained, weary and ready for their summer break.

“This term has been more than usually taxing,” Ginsburg admitted in remarks two weeks ago to the American Constitution Society, a liberal group.

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