The just-ended U.S. Supreme Court term will be known for its landmark health care decision and a historic debate among elected leaders, the judiciary and citizens about the role of government in American life today.
“In a way, more people have paid attention to this case than any in recent memory, with the exception of Bush v. Gore, which happened all so quickly,” said former Solicitor General Paul Clement of Bancroft, counsel to the states that challenged the health care law. “This is a good thing for the Court. In the long run, people will have an appreciation that this really is a different branch of government.”
The health care challenge hung like a pregnant rain cloud over the term from the time review was granted in November until the decision on the term’s final day. In the end, the decision’s significance and the instrumental role of Chief Justice John Roberts Jr. tended to overshadow the rest of the term.
Despite serious disagreements on health care’s core constitutional issues, the justices found a remarkable amount of common ground on issues ranging from searches to indecency to religious freedom. Of the Court’s 75 decisions (including summary reversals), nearly 55 percent were decided unanimously or by 8-1 rulings, according to statistics compiled by SCOTUSblog. Although those numbers are not significantly higher than those in previous terms, the cases included issues that many commentators predicted could closely divide the justices.
MINISTERS, PATENTS AND GPS DEVICES
In Hosanna-Tabor v. EEOC, for example, the justices for the first time recognized a “ministerial exception” to job discrimination laws. Roberts wrote the unanimous opinion holding that the First Amendment’s establishment and free exercise clauses bar suits against churches by their ministers who charge they were fired in violation of employment discrimination laws. Justice Samuel Alito Jr. wrote a concurring opinion joined by Justice Elena Kagan, in an unusual alliance.
“The hard question is who is a minister under this exception,” said Paul Wolfson of Wilmer Cutler Pickering Hale and Dorr. “Many religious groups have someone called a minister. In some cases, the entire congregation is considered a minister. Justices Kagan and Alito wrote an interesting concurring opinion on this point.”
Wolfson said he expects this decision will play a role in litigation on the contraception benefit in the federal Affordable Care Act.
The Court also ruled unanimously — a per curiam decision — in one of the term’s politically charged cases — Perry v. Perez, a battle over Texas’ redistricting plan, a plan with high stakes for Texas Republicans and Latino voters. That unanimity may have been won by ignoring a controversial issue lurking in the background — the constitutionality of Section 5 of the Voting Rights Act.
“This decision and the way it was produced is a rather remarkable accomplishment for the chief justice,” Clement said. “As it was briefed and argued, it did not appear foreordained it would be unanimous. There was a real possibility it would be a dramatic spectacle. The clock for elections in Texas was ticking and ticking. The chief justice managed to get a decision everyone was able to join and to get it done in remarkable short order.”
Other unanimous rulings included Mayo v. Prometheus, which raised a fundamental question of what is patentable subject matter, and Sackett v. EPA, which opened the door to judicial review of environmental compliance orders under the Clean Water Act.
“Most people thought Mayo would be a close one,” said former acting Solicitor General Neal Katyal of Hogan Lovells. “The Court said you can patent an application of the law of nature but not the law of nature itself, which is what happened here. There is a growing confidence and a growing awareness by the Court that patents are the future of the American economy. I also think they’re worried about the Federal Circuit’s approach.”
And in U.S. v. Jones, all of the justices, in an opinion by Justice Antonin Scalia, agreed that attaching a GPS device to a vehicle and using it to monitor the vehicle’s movements is a search under the Fourth Amendment. Scalia reasoned that the use of the GPS was a physical intrusion into property. Alito, joined by justices Kagan, Ruth Bader Ginsburg and Stephen Breyer, concurred, saying long-term monitoring would violate the reasonable expectation of privacy.
“What’s really important about the Jones case is what [the justices] didn’t do,” said Walter Dellinger of O’Melveny & Myers. “Had they affirmed Jones’ conviction, it would have meant any law enforcement officer could, for any reason or no reason, install a GPS device on a car because there is no reasonable expectation of privacy.”
Besides a significant number of unanimous rulings, there also were some surprising alignments in cases in which the justices did divide closely.
For example, in Hall v. U.S., Justice Sonia Sotomayor led Roberts, Scalia, Justice Clarence Thomas and Alito in a bankruptcy decision involving capital-gains tax payments from the sale of a bankrupt farm. Those same four conservatives joined Breyer in his majority opinion on a statute of limitations issue in the Internal Revenue Code in U.S. v. Home Concrete & Supply. And there was movement in the other direction as well. Breyer joined Alito’s decision in Williams v. Illinois — another confrontation clause case on expert testimony — while Kagan’s dissent was joined by Scalia, Ginsburg and Sotomayor.
The granddaddy of surprising alignments, of course, occurred in the health care decision — NFIB v. Sebelius — where Roberts led a majority including Ginsburg, Breyer, Sotomayor and Kagan to uphold the constitutionality of the individual mandate under Congress’ taxing authority. Roberts, along with Ginsburg, Breyer and Sotomayor, also joined Justice Anthony Kennedy’s opinion in Arizona v. U.S., holding that federal law pre-empted three of four challenged provisions in Arizona’s anti-immigration law.
“There was much more fluidity,” Hogan’s Katyal said. Katyal also noted that in the 2010-11 term, the justices split 5-4 in 16 cases, with Kennedy siding with the Court’s Republican appointees in 10. “There was not much mixing up past that,” he said of the prior term. “I think those line-ups are breaking up a lot.”
In fact, with respect to the recent term’s 15 most closely divided decisions, Kennedy again dominated the majority, appearing in 12, but in contrast to the 2010-11 term, he swung nearly evenly between the Court’s two ideological wings.
IN THE TRENCHES
Apart from the numbers and health care, the term was important for its criminal justice rulings — four in particular.
In U.S. v. Jones, law enforcement’s warrantless attachment of a GPS device to a car collided with the Fourth Amendment and the latter prevailed unanimously.
Kennedy’s vote secured the majority for the Court’s moderate-liberal wing in three sets of 5-4 cases. In Hill v. U.S. and Dorsey v. U.S., the Court, led by Breyer, held that reduced sentences for crack offenses in the Fair Sentencing Act apply to offenders whose crimes were committed before the act’s effective date but who were sentenced after that date.
In Miller v. Alabama and Jackson v. Hobbs, Kagan wrote the majority opinion striking down mandatory life sentences without parole for juvenile murderers as a violation of the Eighth Amendment. Kagan, who was assigned the opinion by Kennedy, indicated that she expected even discretionary life without parole sentences for those offenders to be rare.
And in Missouri v. Frye and Lafler v. Cooper, Kennedy himself led the majority (Ginsburg, Breyer, Sotomayor and Kagan) extending the Sixth Amendment right to effective assistance of counsel to plea offers that lapse or are rejected.
“What makes Lafler and Frye significant is the fact that the Court has now made clear that the right applies to the entire plea bargaining process — the negotiation stage as well,” said Roger Fairfax of George Washington University Law School. “The Court acknowledged we don’t live in a system of trials in the modern criminal justice system. We live in a system of guilty pleas. That point, I think, is one that will have implications down the line.”
Those decisions, along with recent Court rulings requiring defense counsel to advise defendants of the immigration consequences of guilty pleas and requiring California to alleviate prison overcrowding, show the Court recognizing what is “happening in the trenches,” Fairfax said. “That is refreshing in its own right.”
One term can be as different as night and day from the next term. The 2012-13 term already is shaping up as a potential blockbuster.
The justices have agreed to decide an affirmative action challenge to the University of Texas’ admissions policy. Voting rights challenges to new state voter-identification laws and to Section 5 of the Voting Rights Act are rushing toward the Court. And one day after the health care decision, House Republican leaders filed the next round in the litigation battle over gay marriage — an appeal involving the federal Defense of Marriage Act.
Marcia Coyle can be contacted at email@example.com.