The nation greets the coming of July each year with fireworks on the National Mall and, days earlier, explosive decisions at the U.S. Supreme Court.
While the Mall fireworks dissipate within moments, the court’s decisions will have repercussions for decades. Indeed, no sooner was the ink dry on this term’s contraceptive decision than the court’s three female justices accused their male colleagues of reneging.
“Those who are bound by our decisions usually believe they can take us at our word,” wrote Justice Sonia Sotomayor for herself and Justices Ruth Bader Ginsburg and Elena Kagan. “Not so today.”
The last-minute imbroglio capped a term marked by both unanimity and division. Although high-profile decisions on contraception, campaign finance rules, public prayer and union power all were decided by 5-to-4 conservative majorities, the court achieved a rare degree of unanimity in its decision-making overall.
“There is something really remarkable that happened this year at the Supreme Court,” says former Obama administration acting Solicitor General Neal Katyal. “In roughly two-thirds of the cases, they agreed unanimously with one another, and you have to go back to the year 1940 to find that happening.”
That unanimity, however, is illusory, often just a technical agreement on the bottom line of a case — who won and who lost.
As strange as it may seem, who won or lost is not all that important in Supreme Court cases, because it is the legal principle laid down by the majority that must be followed by the lower courts.
And so it was this term that Justice Antonin Scalia seemed to perfect a new judicial format: the enraged concurrence. He wrote three such concurrences, declaring in one, “I prefer not to take part in the assembling of an apparent but specious unanimity.”
That case is illustrative. At issue was a 35-foot buffer zone to protect patients and staff from protesters at clinics that provide abortions in Massachusetts. All nine justices agreed the buffer zone was too big because it unduly restricted the free speech rights of the protesters. But there the agreement ended. And the difference is a big deal. Five justices said there can be buffer zones of some smaller size; four said no, there should not be any buffer zone ever under the Constitution.
Genuinely In Agreement
The theme of what one wag called “faux-nanimity” repeated itself again and again. “It represents a success in herding cats, but there is deep division underneath,” observes Harvard Law School professor Laurence Tribe.
The one big, genuinely unanimous ruling was Chief Justice John Roberts’ opinion for all nine justices declaring that police may not search a person’s cellphone without a warrant, even at the time of an arrest.
“They all have cellphones, so they really understood this,” says Clinton administration acting Solicitor General Walter Dellinger. “This is one area where they could be said to have empathy.”
Some Court observers have called the decision a “yuppie” spin on the Fourth Amendment’s ban on unreasonable searches, noting that many of the justices, from both the conservative and liberal camps, are more tolerant of warrantless street searches for drugs.
“I think the class dimension of this is pretty obvious,” says Georgetown Law professor Louis Michael Seidman.
Whether or not that critique has merit, the court’s genuine unanimity on cellphones and less-genuine unanimity in other major cases masked clear disagreement in some of the most controversial cases of the term.
Clearly At Odds
In the area of separation of church and state, the court seemed to abandon the idea that public endorsement of a particular religion is banned by the Constitution’s separation of church and state. Instead, by a 5-to-4 vote, the court upheld sectarian prayers at town meetings.
The majority said it was enough that there was no coercion involved for members of the public who were attending; they could simply leave the room if they found the prayer offensive, the court said.
By the same 5-to-4 vote, the court’s conservatives — all Republican appointees — prevailed over the court’s liberals — all Democratic appointees — on campaign finance regulations, union power and mandated contraceptive coverage for corporations under the Affordable Care Act. In each of these decisions, the conservative majority reversed decades of previous rulings, or came close.
“Precedent is getting a very hard knock all over the place,” says Harvard Law professor Charles Fried, who served as solicitor general in the Reagan administration.
In the campaign finance case, the conservative majority reversed 40 years of established Supreme Court precedent, striking down the $123,000 cap on how much individuals can donate to political parties in each election. The decision, coupled with the court’s 2010 ruling that struck down a longstanding ban on corporate and union spending in candidate elections, further opened the floodgates of cash pouring into campaigns.
It also redefined corruption. For the first time, the court said Congress can only seek to curb quid pro quo corruption, something like an outright bribe. No longer is influence-peddling deemed corruption.
In the union power case, the court stopped short of overruling a 1977 decision that allows public employee unions to collect so-called fair-share fees from non-union members in order to pay for negotiating a contract that non-union members benefit from, too. But the five-justice majority invited those opposed to these fees to bring another suit to challenge what it called the court’s “questionable” 1977 precedent.
And in the case of contraceptive coverage under Obamacare, the conservative majority for the first time ruled that a for-profit corporation can refuse to comply with a general government mandate because doing so would violate the corporation’s asserted religious beliefs.
In each of these cases, the conservative majority based its ruling on the First Amendment right of free speech or free exercise of religion. And some scholars on both the right and left see that as something of a new twist on an old story.
Today, legal historians speak disparagingly of the so-called Lochner era from the 1880s to the mid-1930s. During that time, the Supreme Court, in the name of property rights, consistently struck down legislation barring onerous working conditions or seeking to increase the bargaining power of employees in dealings with employers.
Almost all of the precedents from the Lochner era are now gone, viewed as wrongly decided. But some scholars suggest those decisions are being reborn in a new guise: the First Amendment.
“It’s the new Lochner,” laments Yale Law School’s Akhil Amar, who comes from the moderate left of the legal spectrum. “The First Amendment is increasingly becoming everyone’s first resort for all kinds of claims that historically were not thought of as First Amendment claims.”
By that, Amar means voiding a century of campaign finance understandings, 80 years of precedent on government mandates for profit-making corporations, and nearly overruling 40 years of precedent on fair-share union fees.
Political Split, Step By Step
From the moderate right of the legal spectrum, Harvard’s Fried remarks, “On campaign finance, a cynic could ask the famous question, cui bono? Who profits from this?”
The answer, he says, is clear: the Republican Party, its conservative backers and special interest groups. But is that the result of a conservative legal ideology that narrowly dominates the Supreme Court, or is it a partisan agenda?
“I would need to be a psychoanalyst, and I am not, to say whether the ideological commitment is a superstructure on the cui bono or the cui bono is just a coincidence,” Fried says.
Still, in the contraception and union power cases, and in some others this term, many liberals and moderates breathed something of a sigh of relief on the theory that it could have been worse. “By the end of the term, the court had stepped back from the precipice in virtually all of these cases,” contends Martin Lederman of Georgetown Law School. “It had not overruled any of its major precedents.”
At the same time, many conservatives gnashed their teeth over the high court’s failure to go all the way. “It’s very frustrating that they take this baby step approach rather than just be done with the business and overrule the bad precedent,” says Erik Jaffe, a conservative who practices regularly before the court.
But, he says, smaller steps avoid “unintended consequences” and are probably smarter. As an example of a decision that went too far too fast, he cites Roe v. Wade, which essentially legalized abortion in one fell swoop. And as a contrary example, he cites gay rights decisions, which have headed in a one-way direction for almost two decades, giving the country and the body politic “time to catch up” along the way.
“At the end of the day, they’re hard questions,” opines Jaffe. “Leaping in and giving a final answer on it is only going to create more conflict when the political process really needs to work it through.”
It’s not entirely clear whether the conservative majority took smaller steps this term out of caution or because there was no fifth vote for a more radical course. The truth is probably a bit of both.
The court is deeply split, and for the first time in its history, its ideological alignment reflects partisan splits, too. The decisions made today are for the most part the product of choices made by past presidents with their appointments.
And as professor Lederman observes, the “ultimate fate” of union fair-share fees, campaign finance, affirmative action, abortion restrictions and many other controversial issues depends on “which justices are appointed to the court over the course of the next generation, which of course depends on who wins presidential elections.”