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The 2011-2012 US Supreme Court is now history and will forever be known for its ruling in the Obamacare cases. There is no shortage of analysis and punditry regarding this complicated case and there will be for some time. However, the Court decided over 70 cases again this term and some have wide-reaching effects on all Americans. If one thing stands out that distinguishes this term from others under the leadership of Chief Justice John Roberts, it is that from an ideological perspective, the lines were somewhat blurred. Some may argue that this can be interpreted as the Court being more accepting of liberal ideals, although liberals would never admit that. Others may argue that this trend is predicated upon Roberts’ desire to avoid politics, build coalitions with narrow opinions, and create consensus. Given the short history of the Roberts Court and the potential cases coming before it in the near future, there is no doubt in my mind- if the CBS story is true- this Court will become more ideologically conservative.
In terms of unanimous decisions, this term ranks nowhere near #1 under Roberts. That was the 2009-10 term with 40 such decisions versus 32 this term. In fact, it is about the average over the past 10 years and slightly above average for the Roberts Court. The combined unanimous/8-1 decision average is 36% of all decisions over 10 years and 38.7% under Roberts. This term, it was 55.6%- way above both averages. Part of that may be attributed to that consensus-building and part due to the nature of the cases taken. For example, most of these unanimous decisions resolve differences of opinion between different Circuits with the Supreme Court playing referee.
While these 9-0 or 8-1 decisions were up this term, the percentage of decisions decided 5-4 was 20.8%- below both the Roberts Court average and the 10-year average, but not by much. That is, as far as the number or percentage of 5-4 cases, this term was not unique. What was unique was the voting alignments in these decisions. For example, in 2010, all 16 of the 5-4 decisions were along ideological lines with Kennedy the deciding vote. Of the 15 5-4 decisions this term, there was no unanimous split as new alignments in 5-4 decisions occurred in 17% of these decisions. This can be attributable to consensus-building and the narrowness of opinions.
This writer also analyzed amicus briefs filed by conservative and liberal interests and their positions in the cases. This can be misleading. The US Chamber of Commerce is generally considered a conservative entity, but they have rather consistently come down on the liberal side in certain areas, notably immigration cases. I do not believe amicus briefs necessarily sway a Justice, but some facts from them are used to support the practical implications of a decision and make their way into the majority or dissenting opinions. Regardless, conservative amici prevailed 65% of the time while the liberal amici prevailed only 38% of the time when such briefs were filed.
When looking at the case outcomes that favored a liberal-leaning outcome versus a conservative-leaning one, in non-summary cases, the conservative outcome prevailed in 26 of 43 such cases, or 60%. As far as the summary cases, the conservative outcome prevailed in 8 of 8 such cases. Taken together, the conservative outcome won in 34 of 51 cases, or 66.7% of all such cases.
Where conservative views prevailed were in the area of law enforcement and habeas proceedings. Several times, the Court stated that federal courts failed to grant sufficient deference to state court determinations when granting habeas petitions thus granting state courts greater power. And while the powers of law enforcement was generally expanded, or at least shielded from lawsuits under the doctrine of qualified immunity, the protections of the accused were scaled back in some cases. For example, although the Court ruled that a warrant is required to put a GPS device on a car, they likewise ruled that strip searches of those arrested were constitutional in most instances. Also, the power of juries were greatly enhanced this term.
Overlooked this term was a 9-0 per curiam decision in what could be the first shots fired in a looming war over the Voting Rights Act of 1965 that may very well erupt in the next term. In Perry v. Perez, the Court said the District Court erred in drawing new Congressional districts in Texas by totally ignoring the legislature. Although the procedural elements of the case are confusing and complicated to say the least, the bottom line is that a federal court was slapped down for ignoring the “will of the people” through their elected legislature. Also, somewhat overlooked was a 7-2 decision that now severely limits the ability of labor unions to raise funds from their rank-and-file for political advocacy. For the first time, they established an opt-in provision in addition to the already-existing opt-out provision. And lest we forget in another per curiam decision (5-4), Citizen’s United was upheld, affirmed and reinforced against state laws. In effect, a liberal tool to enact McCain-Feingold-like campaign finance laws at the state level is removed. Even more encouraging was Breyer’s dissent here when he stated that the 5-4 majority in Citizen’s United stood united in defense of that decision.
I have written a few articles regarding the Obamacare cases and those sentiments need not be further elaborated upon here. There is one case where John Roberts should receive deserved criticism. In Arizona v. United States, most of Arizona’s immigration law was struck down. Conservatives have claimed partial victory since they upheld Section 2 of SB 1070- the “show your papers” provision. But, if one carefully reads that decision, there is an implicit warning directed at Arizona that if they use that provision to harass or detain suspected illegal immigrants, the Court will revisit the issue. Regarding the parts that were struck down, the rationale of the opinion is, to me, disturbing. Specifically, although they used the concept of preemption under federal law, they went further by invoking international relations concerns into the equation. This has Anthony Kennedy written all over it with the liberal wing (and John Roberts) dutifully going along. The fact that Roberts did not write a concurring opinion distancing at least himself from this line of reasoning is more of concern than his decision in the Obamacare cases. The practical effect here is that it now creates an unusually high bar for immigration enforcement laws in other states which are pending implementation or enactment to overcome. Once an international relations rationale is used in Supreme Court opinion, it creates a precedence upon lower courts. And “international relations” is one area from which courts traditionally shy away from, especially as concerns actions by states. As the majority opinion stated, the United States must speak as one when it comes to immigration, not as 50 individual parties. There is a clear silver lining in the Obamacare case; I fail to see one in the Arizona case given the rationale of the opinion.
It remains to be seen whether the Obamacare decision will create the great upheaval and rancor on the Court as the CBS story intimates. We should know soon enough, or at least get an inkling. Thus far, affirmative action in college admissions is a case they will take on next term. Given his decisions in voluntary racial integration cases in schools and in Ricci v. DeStefano, there can be no doubt that Chief Justice John Roberts clearly falls on the conservative side on these issues. Some pundits have suggested that Roberts has a strong disdain for affirmative action in general. We will find out soon enough. Additionally, two other issues near and dear to conservatives- gay marriage and the Voting Rights Act of 1965- will, in all probability, be taken up by the Court when they reconvene in late September, or soon thereafter.
One final note on the Obamacare cases. Although there is generally no set rules for recusal in cases and John Roberts respects the decisions of Justices to “do the right thing,” one has to question- again- why Elena Kagan did not recuse herself from the case. It is inconceivable that a sitting Solicitor General would not be consulted regarding the possible constitutional questions that would arise under Obamacare. It was not as if there was no warning from the law’s opponents regarding their intentions to challenge the law in Court. The fact that Neal Kaytal (as acting Solicitor General) and later Donald Verrilli were left with the task of actually filing briefs and defending the law is inconsequential as it is very likely that Kagan, during her tenure, laid the legal groundwork for their later work. Had Kagan “done the right thing” and recused herself and Chief Justice John Roberts still sided with the liberal wing even using the tax rationale, the decision would have been 4-4 in which case the decision of the lower court would have stood. Since these cases originated out of the 11th Circuit, that decision striking down the mandate under the Commerce Clause would have stood and conservatives could then claim that clear-cut victory they so desired. But, the whole issue is moot since Kagan did not recuse herself from the litigation.