Just three months ago, the Supreme Court ended its annual term with three of the most explosive cases in recent memory. It almost always ends its year with a bang, having saved its most controversial, deeply divided cases for last.
But this year, the cases decided in late June were even more contentious and politically heated than usual.
First, a six-justice majority, led by Chief Justice John Roberts, affirmed the Obama administration's interpretation of the Affordable Care Act. Justice Antonin Scalia, dissenting from the decision, accused the majority of "rewrit[ing]" the act. He added, "[W]e should start calling this law SCOTUScare."
The next day, a five-justice majority, led by Justice Anthony Kennedy, announced a federal constitutional right to same-sex marriage. Roberts, this time in dissent, disagreed with the majority's expansive notion of constitutional liberty. "If you are among the many Americans, of whatever sexual orientation, who favor expanding same-sex marriage, by all means celebrate today's decision. But do not celebrate the Constitution. It had nothing to do with it."
Scalia, again in dissent, was blunter: The court "has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." Were he ever to sign such an opinion, Scalia added, "I would hide my head in a bag."
Finally, on the court's last day of business, another five-justice majority, this time with Roberts, Scalia and Kennedy all in the majority, rejected a bid to block Oklahoma's use of lethal injection for the death penalty. Justice Sonia Sotomayor, writing for the four liberal justices in dissent, accused the conservative majority of exposing prisoners "to what may well be the chemical equivalent of being burned at the stake."
Justices Ruth Bader Ginsburg and Stephen Breyer went one step further in their dissenting opinion, suggesting that the death penalty should be abolished.
The emphatic rhetoric of Sotomayor's opinion echoed similarly forceful questions at oral argument two months earlier, where she pressed Oklahoma Solicitor General Patrick Wyrick so aggressively that the chief justice took the rare step of giving the lawyer extra time to argue his case because, "to an extent that's unusual even in this court, you have been listening rather than talking."
The justices' heated exchanges did not stop when the cases closed. Days after the term ended, Ginsburg told NPR's Nina Totenberg that she and her fellow liberal justices had arrived upon a strategy of speaking as a bloc in dissent, whenever possible, so as to maximize their legal and political impact. "If you want to make sure you're read, you do it together, and you do it short," she said, before asking, rhetorically, "why each of the [conservative] prime dogs found it necessary to do his own thing."
Justice Samuel Alito told The Weekly Standard's Bill Kristol that decisions like the same-sex marriage case threaten to "rais[e] questions of legitimacy," making the court look more political and thus turning the Senate confirmation process into something more "like an election. It will become like a political process."
But there were lighter moments, too. Breyer appeared on Stephen Colbert's show to discuss his latest book. Alito talked baseball. Ginsburg attended the premiere of a comic opera dedicated to her differences of opinion with her longtime friend and intellectual sparring partner, Scalia, titled "Scalia/Ginsburg."
Looking at the cases already on their docket, and others on the horizon, one should expect the drama to continue when the justices return to the bench this week.
While no case may approach last year's Affordable Care Act or same-sex marriage cases in terms of political magnitude, the year presents a broader array of difficult cases that will draw the court into politically charged debates about such subjects as affirmative action, the death penalty and public sector unions — and probably abortion and the Affordable Care Act yet again.
The result will almost certainly include more 5-4 splits among the nine justices, more strongly worded opinions and more public debate after the fact.
The gloves come off
The justices' escalating rhetoric has not gone unnoticed. The Atlantic's Megan Garber described the court as descending "into judicial chaos"; Politico's Josh Gerstein wrote that in the court's closing days "the gloves came off, with the justices hurling especially nasty words at each other, shattering the illusion that they are all good friends."
So why such discord, and why now?
There are several possible reasons. First, these nine justices have worked together for five years, since Justice Elana Kagan joined the bench, and although familiarity may not breed contempt, it may engender an atmosphere in which the justices feel comfortable speaking their minds. Indeed, we may be seeing a feedback effect.
As justices debate issues ever more pointedly, they generate more responses among their brethren.
Second, because the justices have had five years getting to know each other, they are now familiar with the basic views that their colleagues have developed on various issues, and the points on which their colleagues are unlikely to reconsider or moderate their views. So there's no advantage diluting their rhetoric in the forlorn hope of winning them over.
It's also true that cases now reaching the court may be raising higher stakes in specific, ongoing disputes. In some areas, such as affirmative action, justices can sometimes avoid deciding the core constitutional dispute by focusing on narrower or non-constitutional grounds. Law professor Richard Re calls this "the doctrine of one last chance," with the court giving the political branches one last chance to resolve the dispute themselves. In several areas, however, the political branches have had their last chance, leaving the court little choice but to finally make the hard constitutional decisions.
Finally, issues now reaching the court seem more politically explosive: Same-sex marriage; the Affordable Care Act; religious liberty; public sector unions; the law of elections, in addition to such hot-button issues as abortion and racial preferences. It is hard to imagine more hotly contested issues.
The last time Abigail Fisher's challenge to the University of Texas' race-based affirmative action admissions was before the Supreme Court, some people predicted that the court would take that opportunity to outlaw affirmative action altogether. That seemed plausible in light of Roberts' statement five years earlier that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
But perhaps the court recognized that it was only a decade since Justice Sandra Day O'Connor famously predicted in Grutter v. Bollinger that "25 years from now, the use of racial preferences will no longer be necessary." And, as Kennedy noted in his opinion for the court, the parties had not asked the court to overrule its precedent.
Kennedy's opinion in the first Fisher case held only that the lower court had failed to subject the policy to "strict scrutiny," which demands that a policy employing racial classifications be "narrowly tailored" to meet a "compelling state interest." That means, the court cautioned, that a reviewing court must conduct a "careful judicial inquiry" into race-neutral methods of achieving the same goal. A court cannot simply defer to the state; instead, the lower court must decide whether "the admissions process meets strict scrutiny in its implementation."
So the lower court had the strict scrutiny standard backward. Instead of holding the state to its burden, it had required the applicant, Fisher, to rebut a presumption that the state acted in good faith. The Supreme Court told the lower court to reconsider the evidence Texas presented and decide whether it "would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."
Texas's original justification had been a need to establish a "critical mass" of minority students in small classes, based on a study of racial diversity in a subset of such classes and anecdotal accounts of student interactions.
Fisher now argues that Texas abandoned that rationale in favor of an unsupported "qualitative" or "intraracial" diversity rationale. Texas says affirmative action is necessary to ensure that the highest achieving minority students are admitted. Many of the university's minority students are admitted through the state's Top Ten Percent law, under which every high school's best students are admitted to the university. The state argues that top-performing minority students from schools with large minority populations are generally not as well prepared as minority students outside the top 10 percent at integrated schools, who would not make the cut without affirmative action.
The big question of how much longer affirmative action may be used for educational admissions will probably not be resolved this term. Although Kennedy's majority opinion, and concurrences by Scalia and Justice Clarence Thomas, suggested they'd be receptive to a request to overturn Grutter, Fisher once again asks the court to enforce Grutter's requirement of strict scrutiny, not to hasten the demise of affirmative action.
The Supreme Court will hear three death penalty cases, each raising different questions about constitutional protections for capital defendants. But the biggest question of the term may be whether the death penalty itself survives.
Breyer's and Ginsburg's dissent in Glossip v. Gross last term was only the most recent signal that the court's liberals are preparing a death blow to the death penalty. Sotomayor and Kagan also dissented in that case, arguing that the lethal injection drug was cruel and unusual.
All eyes will again be on Kennedy, the swing justice, whose recent opinions banned the execution of juveniles and the intellectually disabled, and for crimes other than homicide. In each case, Kennedy surveyed the laws of the several states to gauge "evolving standards of decency." When Breyer wrote in Glossip that the number of executions has been in decline for 15 years and that "in 2014, only seven states carried out an execution," he surely was aiming this data at Kennedy.
The death penalty's constitutionality under the Eighth Amendment is not squarely at issue in any cases before the court. But the increasingly stark divisions among the justices may affect the court's review of three cases touching on capital punishment.
Hurst v. Florida considers a Florida law under which juries give only "advisory sentences" and make no finding about aggravating factors required for a death sentence; the judge makes that decision. The Supreme Court has interpreted the Sixth Amendment right to a jury to require that the jury, not the judge, "find an aggravating circumstance necessary for the imposition of the death penalty." But in Florida, the jury is not required to say which aggravating factor it finds, even when the prosecution asserts multiple aggravating factors. The prosecution urged two aggravating factors at Timothy Hurst's trial for the murder of his coworker; the killer used dozens of slashes with a box cutter while robbing the restaurant at which both he and his victim worked. The jury may have recommended a death sentence without a majority of the jurors agreeing that any given factor applies beyond a reasonable doubt. The petitioner in Hurst also argues that because the jury's sentence is merely advisory, it is the trial judge rather than the jury who really finds the aggravating factor, in violation of the Supreme Court's precedent.
Second, Foster v. Chatman is another Sixth Amendment challenge to the process in capital cases. But it is a highly fact-intensive case directed at the prosecutor's decision to strike all four black prospective jurors from the pool in Timothy Foster's 1986 trial for the murder and robbery of a white victim. The petitioner claims these "peremptory strikes" were motivated by race, in violation of the court's decision in Batson v. Kentucky (1986).
Foster's Batson challenge is based partly on the prosecutor's notes, which surfaced in 2006. On four lists of prospective jurors, the names of black prospective jurors were marked with a "B" and highlighted. Their race was circled on their juror questionnaires, and three black prospective jurors were labeled "B#1," "B#2" and "B#3." The only five black prospective jurors were the first five out of six names on the prosecutor's list of "Definite NOs." In addition, the petitioner alleges inconsistencies and falsities in the prosecutor's race-neutral justifications for striking each of the four black potential jurors who remained in the pool. Finally, in his closing argument the prosecutor called on the all-white jury to impose a death sentence "to deter other people out there in the projects," a majority of whom were black. The Supreme Court will have to decide whether the Georgia courts' decision to uphold Foster's sentence contradicted or unreasonably applied the Batson rule.
Third, in Kansas v. Gleason, the Kansas attorney general challenges the State Supreme Court's reversal of a death sentence because of an alleged inadequacy in jury instructions. Under U.S. Supreme Court precedent, aggravating factors that justify capital punishment must be proven beyond a reasonable doubt; the jury must also be allowed to consider all relevant mitigating evidence. The Kansas Supreme Court interpreted the Eighth Amendment to require the trial court in a capital case to instruct the sentencing jury that the reasonable-doubt standard does not apply to mitigating factors. The U.S. Supreme Court must therefore decide whether the Constitution prohibits a reasonable-doubt burden of proof for mitigating evidence, and if so, whether the trial court must explicitly instruct the jury not to apply that standard.
These cases illustrate why executions are so delayed and so rare. We'll see whether the court remains content to police the boundaries of capital punishment or whether, as Breyer suggested last year, the procedural safeguards designed to make the death penalty constitutional have rendered it so rare as to be, in the Eighth Amendment's words, "cruel and unusual."
Public sector unions
Gov. Scott Walker of Wisconsin is no longer running for the White House, but the issue that propelled him into the race will now reach the Supreme Court. In Friedrichs v. California Teachers Association, the court will consider whether public sector employees can be forced to pay fees to support union contract negotiations.
The challengers say California's law requiring nonmember employees to pay the union violates their First Amendment right to free speech and free association. More precisely, it's about their right not to support political speech with which they disagree, and their right not to associate with groups with which they disagree. They ask the court to reverse Abood v. Detroit Board of Education, a 1977 precedent that entitled public sector unions to collect such fees.
Private sector unions can impose fees on nonmembers to cover the cost of collective bargaining, but only for nonpolitical purposes. The First Amendment prohibits them from forcing non members to pay for their political activities. In the public sector, however, where union demands inherently affect policy, Abood leaves room for the union to impose the fee requirements on nonmembers. According to those challenging the unions in Friedrichs, this doctrine violates the First Amendment.
The state of California and its teacher's union respond that Abood is still good law. It recognizes that public sector unions are negotiating for wages, benefits, and other employment terms and conditions. So like any other unions, they should be allowed to levy a fee on nonmembers to support bargaining efforts, rather than allowing nonmembers a "free ride" on union's work. Allowing free riders would doom unions altogether, they contend.
As with affirmative action cases, Supreme Court justices have circled around the First Amendment dispute at the heart of this case. Each time, they have come closer to the crux of the dispute. In its 2012 and 2014 opinions at the margins of the public sector union fees issue, the court nibbled at the larger First Amendment issue, but managed to avoid the core question of reconsidering Abood. This year, that option may not be available and the issue may be decided.
'One person, one vote'
Debate over immigration may not be clearly on the Supreme Court's docket, but it shows up between the lines of Evenwel v. Abbott, an "equal protection" challenge to Texas' electoral districts.
Texas law creates voting districts with roughly equal numbers of residents, but because districts vary widely in their immigrant populations, they diverge widely in numbers of eligible voters. The petitioners, who live in rural areas, claim this arrangement gives disproportionate power to voters in urban districts with big noncitizen populations.
The Supreme Court established the rule of "one person, one vote" in a series of cases in the 1960s. To avoid diluting any voter's say in the political process, the court held that legislative seats "must be apportioned substantially on a population basis." But the court did not answer the question of which population is relevant: all people or just eligible voters? If one considers voting power as a factor of the raw number of citizens eligible to cast ballots in the same election, then a voter in a Texas district heavily populated with nonvoting immigrants has a vote one-and-a-half times more powerful than a citizen in a rural district without many immigrants.
But not all courts have seen it that way. The 9th Circuit held that districts must be apportioned on the basis of total residents, not eligible voters, because overly large districts swollen with nonvoting residents would impede residents' access to their elected representatives. And the 5th Circuit suggested that apportionment based on eligible voters would conflict with the Constitution's allocation of congressional seats based on total population.
Now the Supreme Court will decide whether the Equal Protection Clause requires any particular formula or if, as the three-judge district court concluded, the decision whether to include noncitizens in the apportionment base is up to states.
This could have far-reaching consequences. It arises at a time when border-state populations are being inflated by legal and illegal immigrants, who do not vote but do draw on government services. Democrats benefit from counting nonvoting immigrants in the population when dividing up electoral districts because it focuses voting power in urban centers that favor liberal policies. Republicans would fare better if the apportionment base were limited to eligible voters.
Taking the politics out
The other redistricting case on the court's docket is Harris v. Arizona Independent Redistricting Commission, which raises questions about the permissible goals of redistricting. The Supreme Court's one-person-one-vote rule allows disparity in the size of districts, given the impossibility of creating perfectly equal districts, and the Arizona commission's districts fall within a variance of 10 percent. But the petitioners, who are Arizona voters, argue that the commission over-populated Republican districts, in order to dilute Republican votes.
The commission argues that it was only doing what it thought necessary to win approval from the Department of Justice. At the time, Arizona was subject to "preclearance review" under the Voting Rights Act, which required the state to show that its new apportionment plan would not diminish the number of districts in which minorities have the "ability to elect their preferred candidates of choice." That requirement was eliminated in 2013 by the Supreme Court's decision in Shelby County v. Holder, which struck down the Voting Rights Act's formula for identifying jurisdictions subject to preclearance review.
The three-judge district court found that complying with the Voting Rights Act was the commission's "predominant reason for the deviations." Some commissioners had exhibited partisan motivations, including a successful effort to make a formerly safe Republican district "more competitive" even though it fell short of an "ability-to-elect" district. But the court found that even in that instance, "[c]ompliance with the Voting Rights Act was a substantial part of the motivation."
The Supreme Court will decide whether partisan political motivation may invalidate a redistricting plan with minor deviations in population size and, if so, whether such motivations must be the primary reason for the state's line-drawing, or only a contributing factor, to cause an Equal Protection violation.
The petitioners also argue that even if the commission's actions were motivated by a desire to satisfy the Department of Justice, rather than partisanship, that motive is also improper. The lower court rejected that contention. Compared to other policy goals that have been held to justify small discrepancies in population size, such as avoiding contests between two incumbents, complying with federal law seemed benign.
Depending on the Supreme Court's approach to Harris, its opinion could help insulate state redistricting decisions from judicial review, or it could give another weapon to partisans of every stripe who challenge gerrymandering that favors their opponents.
Religious liberty and Obamacare
Few recent legal issues have been more contentious than the constitutionality of the Affordable Care Act or whether religious freedom allows people not to submit to laws that conflict with their beliefs. This year, the court could choose to hear a case that combines both. The question is whether implementation of the Affordable Care Act violates the free exercise of religion.
In Burwell v. Hobby Lobby (2014), the court faced a similar question. The act empowers the Health and Human Services secretary to define the minimum health insurance coverage that employers should provide to staff. The secretary demanded that employers provide certain forms of birth control, including ones that prevent early embryos from implanting in the uterus.
If an employer fails to provide coverage, he can be fined. Hobby Lobby and Conestoga Wood Specialties, both owned by religious families, sued saying HHS could not impose this "birth control mandate" on them because it would substantially and unduly burden the owners' religious beliefs.
Under the Religious Freedom Restoration Act, such burdens must be avoided except when necessary to serve a compelling government interest. In Hobby Lobby, the court held 5-4 that "RFRA" exempted the companies from the birth control mandate. But the Hobby Lobby case left open the question of precisely what sort of process the government might use to accommodate either private companies or religious organizations from the mandate.
HHS does not exempt religious nonprofit organizations, only churches. Instead, HHS announced that religious nonprofit organizations could avoid providing employees with insurance coverage that contradicts the organization's religious beliefs by certifying to its insurance provider that it has religious objections. Then, the insurer itself will directly bear the cost of coverage.
The Little Sisters of the Poor, an order of Catholic nuns, objects to this requirement. The nuns argue that the certification triggers a process that results in their employees receiving birth control; they object to HHS using their health insurance plan to facilitate access to the contraception that they object to. So they filed suit in federal court, to block enforcement of the mandate's requirement. The U.S. Court of Appeals for the 10th Circuit rejected their claims, ruling that the HHS's procedure does not force the nuns into complicity with the mandate. Rather, it relieves them of it. Several other federal courts have issued similar rulings, denying challenges to HHS's procedure.
The Little Sisters petitioned the Supreme Court for review; their petition is pending. But in mid-September, another court of appeals, the 8th Circuit, ruled the opposite way in a similar case. It held that HHS's procedural requirement "compels" religious organizations "to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty."
Even before the 8th Circuit's decision, the court seemed likely to take up the Little Sisters case, or one of several other cases for which Supreme Court review has been requested. The split among the federal courts makes Supreme Court review almost certain.
On the horizon
There are other cases the justices might decide to hear.
The court seems likely to return to abortion in either Whole Woman's Health v. Cole or Currier v. Jackson Women's Health. The states of Texas and Mississippi imposed restrictions on abortion doctors by demanding that they have "admitting and staff privileges" at a local hospital. The state says these requirements promote public health and safety. Critics counter that they impose an "undue burden" on abortion rights, forcing women to travel long distances or leave the state to get one. The Fifth Circuit struck down the Mississippi law but upheld the Texas law, because the Mississippi law would cause the closure of all abortion clinics in the state while Texas's law would not. The state of Mississippi and the plaintiffs challenging Texas's law have petitioned the Supreme Court for review.
Other significant cases are pending in the lower courts but not yet knocking on the Supreme Court's door. In early September, a federal trial court ruled that the House of Representatives has legal standing to bring a federal lawsuit against the Obama administration (specifically, against HHS), to prevent it from spending federal money on various programs without Congress' approval. The administration has already vowed to appeal that decision, and if the D.C. Circuit issues a ruling in early spring, the Supreme Court could hear the case a year from now.
Similarly, the D.C. Circuit is receiving briefs by the authors of this article challenging the Federal Communications Commission's Open Internet Order, a regulatory decision to impose "net neutrality" requirements and other legal obligations on broadband Internet providers. The FCC's proposal has been so closely watched by the public that the Supreme Court would surprise no one by deciding to take the case after the D.C. Circuit issues a decision next year.
Amid all the public clashes between the justices, one must be careful not to mistake strong disagreement for personal animosity.
The court consists of nine lawyers, nine people who, like all lawyers, chose a vocation best suited for people who like to argue and debate. So it may well be that, amid all of the argument, these nine lawyers are enjoying the chance to do what lawyers do best. Thus, as Breyer noted in an interview with National Law Journal's Tony Mauro, there is never a raised voice heard in the justices' private conferences, even as they reach decisions in these cases. For this reason, Ginsburg and Scalia can disagree sharply in their judicial opinions yet remain, famously, the most affectionate of friends.
Adam White and Adam Gustafson are lawyers with Boyden Gray & Associates in Washington, where they work on constitutional and regulatory issues. Adam White is also an adjunct fellow with the Manhattan Institute. Their firm filed briefs in the Open Internet Order case.