Chief Justice, John Roberts Jr.United States Supreme Court (Photo: Diego M. Radzinschi / NLJ)
WASHINGTON, D.C. — During the October 2013 Supreme Court term, the justices claimed to take mostly small steps, but key decisions left many wondering whether giant ones would follow.
Will their 5-4 decision striking down the Affordable Care Act’s contraceptive insurance requirement as applied to closely held corporations lead to a “minefield” of litigation, as the dissenters predicted in Burrell v. Hobby Lobby?
Will any state be able to draw a buffer zone around abortion clinics without running afoul of the First Amendment following McCullen v. Coakley?
Is Harris v. Quinn the beginning of the end for unions charging nonmembers collective-bargaining fees after a 5-4 majority lambasted the foundational decision for those fees?
After McCutcheon v. Federal Election Commission, will any limits on direct campaign contributions to candidates survive the next challenge to campaign finance laws in a court seemingly bent on deregulating money in elections?
At the beginning of the term, conservative, libertarian and other groups pressed the justices to reconsider key precedents in such areas as campaign finance, affirmative action, securities, abortion, unions, the treaty power and even tribal sovereign immunity.
Not only did those precedents survive, but the term ended with a remarkable record of unanimous rulings: nearly two-thirds of the court’s 70 signed opinions. The court found common ground, even if only in the result, in such politically charged cases as the challenges to President Obama’s recess appointments in National Labor Relations Board v. Noel Canning and to the Massachusetts abortion clinic buffer zone in McCullen.
However, the court’s decisions also revealed that some of the older rulings under attack clearly are endangered, particularly Abood v. Detroit Board of Edu­cation, a 1977 decision upholding nonunion members’ fees; Hill v. Colorado, a 2000 ruling in favor of Colorado’s clinic buffer zone; and Buckley v. Valeo, a 1976 decision upholding limits on campaign contributions.
The October 2013 term likely will be known for Hobby Lobby, which was the court’s second case on the Affordable Care Act and is unlikely to be its last. However, it was not the only takeaway from this ninth year of the Roberts Court.
The display of unanimity, former acting Solicitor General Neal Katyal of Hogan Lovells suggested, reflected Chief Justice John Roberts Jr.’s confirmation commitment to try to end the many multiple concurring and dissenting opinions that proliferated in the Rehnquist Court. Such splits, Roberts believed, offered little guidance to lower courts and damaged the high court’s own credibility.
However, there were fractures within that unanimity. In Noel Canning, for example, four justices (Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) would have left future presidents with much less power to fill vacancies than their five colleagues did. And in McCullen, four justices (Scalia, Anthony Kennedy, Thomas and Alito) would have struck down the clinic buffer zone as discrimination based on content and viewpoint, making it nearly impossible for any buffer-zone law to survive First Amendment scrutiny.
When the court did divide in a clear 5-4 split, it was generally along ideological lines and in areas that traditionally have divided the Roberts Court: campaign finance (McCutcheon); government accommodation of prayer (Town of Greece v. Galloway); unions (Harris); and most anything related to abortion (Hobby Lobby), with Roberts, Scalia, Kennedy, Thomas and Alito in the majority. Two of the 5-4 splits went in favor of the court’s liberal side because of Kennedy’s vote: invalidating Florida’s standard for determining intellectual disability in death penalty cases (Hall v. Florida) and upholding the “straw purchaser” gun ban (Abramski v. United States).
Race also was a flashpoint. The only related case was the 6-2 decision in Schuette v. Coalition to Defend Affirmative Action, upholding a voter-approved constitutional amendment prohibiting the use of race in higher education admissions policies. Justice Sonia Sotomayor, joined in dissent by Justice Ruth Bader Ginsburg, established herself as a passionate countervoice to the conservative view on race and the Constitution and addressed head-on Roberts’ prescription that the only way to end discrimination on the basis of race is to stop discriminating on the basis of race. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination,” she said.
Finally, the justices increasingly grappled with the legal implications of new technology in the civil and criminal arenas: cellphones and Fourth Amendment searches; Aereo Inc.’s streaming operation and copyright law; and software and patent law. In the two cellphone cases, “Roberts does a really nice job describing how technology is moving into all of our lives and how it requires rethinking of legal rules,” said Mark Davies of Orrick, Herrington & Sutcliffe.
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