Chemerinsky: What does this memorable SCOTUS term mean for the future?
Erwin Chemerinsky.
October Term 2014—from Monday, Oct. 6 to Monday, June 29—will be remembered for its decisions that created a right to marriage equality in every state and saved the Patient Protection and Affordable Care Act. These decisions, though, were reflective of a term unlike any in recent memory, because four liberal justices were in the majority in most of the major cases. The key questions at the end of the term are: Why did that happen, and what is it likely to mean for the future?
Justice Kennedy Joins the Liberal Justices
The simplest explanation for many of the seeming liberal rulings is Justice Anthony M. Kennedy. This term, when the court was ideologically divided, Justice Kennedy was much more likely to be with the liberals than the conservatives. By my count, there were 19 decisions divided 5-4, and in nine of them Justice Kennedy joined Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. In five of them, Justice Kennedy joined Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito. By contrast, over the first nine years of the Roberts court, Justice Kennedy joined the conservatives about 70 percent of the time when the court was ideologically split 5-4.
Of course, the most dramatic of these cases was Obergefell v. Hodges, the 5-4 decision holding that state laws prohibiting same sex marriage violate due process and equal protection. Justice Kennedy wrote the landmark opinion for the court, just as he has done in every major Supreme Court case advancing rights for gays and lesbians: Romer v. Evans (1996), Lawrence v. Texas (2003), and United States v. Windsor (2013).
Indeed, every major civil rights case came out with the liberal justices in the majority and with Justice Kennedy joining them. For example, in Texas Department of Community Affairs v. Inclusive Community, the court held 5-4 that claims under the Fair Housing Act can be based on a racially discriminatory impact; proof of a discriminatory intent is not required. This is a major victory for civil rights because it is difficult to prove a discriminatory purpose, and there are some dissenting justices who would like to eliminate disparate impact liability under all civil rights laws.
Both major voting cases were decided 5-4 with Justice Kennedy in the majority. In Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, the court reversed a lower court which rejected a claim of race discrimination and which held that whether there is impermissible packing of African-American voters into already majority black districts should be determined on a district-by-district basis, not on the state as a whole. On June 29, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the court held that states can choose to have independent commissions draw election district lines, a key way of avoiding partisan gerrymandering by state legislatures.
In the most important separation of powers decision of the year, Zivotofsky v. Kerry, the Supreme Court declared unconstitutional a federal statute that allowed Americans who had a child born in Jerusalem to designate “Jerusalem, Israel,” as the birthplace. Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, declared the law unconstitutional as infringing the president’s exclusive ability to decide whether to recognize foreign governments. This is the first time the court ever has declared unconstitutional a federal law limiting presidential power in foreign affairs.
Sometimes these five justices were able to attract one or more other justices to create even larger majorities. Most notable was King v. Burwell, in which Chief Justice Roberts was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan in voting to uphold tax credits under the Patient Protection and Affordable Care Act. The Affordable Care Act sought to make sure that virtually all Americans had access to health care coverage. For the poorest among us, health care was to be made affordable by requiring that every state include within its Medicaid programs those within 133 percent of the federal poverty level. For those just above this level, insurance was to be made affordable through tax credits.
Conservatives, who have tried repeatedly to have the courts strike down the entire Affordable Care Act, asked the court to say that only those who purchased insurance on the exchanges created by state governments could get these tax credits. The result, many said, would be to collapse the exchanges created by the federal government in the 34 states where the states have not done so and to leave approximately 8 million people without health insurance.
The court rejected this argument and held that although the language of the act had ambiguities, the purpose of the law was clear: to make sure that all Americans had access to health care. Chief Justice Roberts, writing for the six-person majority in upholding the tax credits, said, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the [a]ct in a way that is consistent with the former, and avoids the latter.”
The Cohesion of the Liberal Bloc
Another key factor explaining decisions was the cohesion of the four most liberal justices—Ginsburg, Breyer, Sotomayor and Kagan. They voted together in all of the major cases. Therefore, they needed to attract only one additional vote. There were a number of cases where they were on the winning side 5-4, but by getting a justice other than Justice Kennedy.
In Williams-Yulee v. Florida State Bar, the court, by a 5-4 margin, upheld a Florida law that prohibited candidates for elected judicial office from personally soliciting or receiving funds. Chief Justice Roberts wrote for the court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, and declared that judges are not politicians even when they run for elected office.
In Walker v. Texas Division, Sons of Confederate Veterans, the court held that the Texas Department of Motor Vehicles did not have to produce license plates with the Confederate battle flag. Justice Breyer wrote the opinion, joined by Justices Ginsburg, Sotomayor, Kagan and Thomas. The court said that license plates are government speech and the free speech clause of the First Amendment never can be used to challenge government speech.
Not Every Decision Had a Liberal Outcome
Although many of the most high profile decisions had liberal results, there also were some important conservative victories. For example, in Glossip v. Gross, the court, 5-4, upheld the protocol for lethal injections, despite evidence that the current drugs used risk serious pain to those being executed. As in Baze v. Reese (2008), the court indicated deference to states in the drugs these use for lethal injections.
In Michigan v. EPA, the court held, again 5-4, that the Environmental Protection Agency acted unreasonably when it deemed cost irrelevant to the decision to regulate power plants. This will make it more difficult for the federal government to regulate pollutants from power plants.
What Does It Mean for the Future?
It would be a mistake to see this as a larger trend towards a more liberal court. It is dangerous to generalize from one term. At the end of last year, the major story was about the increased unanimity of the court. In October Term 2013, 65 percent of the cases were decided unanimously and there were only 10 decisions decided 5-4. This year, only 40 percent of the cases were unanimous and there were 19 such 5-4 decisions.
The results in any term are inevitably a product of the set of cases that are decided that year. Next year, the court will have cases involving affirmative action and voting and, likely, abortion—all areas where Justice Kennedy is much more likely to side with the conservatives than the liberals.
But all of that said, overall, October Term 2014 was a term for liberals to celebrate so many crucial victories.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
