When it comes to the highest court in the land, it's worth taking a second look at the minority opinions
It's the end of another term at the United States Supreme Court, which means it's time for a ritual as eternal as Washington's cherry blossoms (only far less beloved). Now comes the annual rite of ponderosity known as the "End-of-the-Term" review, wherein glassy-eyed courtwatchers like me try to answer questions like: What are the latest trends on the High Court? What can be divined from the calculi of the opinions? Which justices are up? Which are down? What does it all mean?
With the exceptions proving the rule, it is still a very conservative court, as conservative as it has been in three quarters of a century
Some years, there are profound answers to these questions. For example, it became clear last year, in the wake of a term which saw the Citizens United ruling on campaign finance reform, that Justice Samuel Alito is far more conservative in his jurisprudence than was the justice he replaced, Sandra Day O'Connor. This has had enormous ramifications on the Court's political bent. Alas, no such clarity or shift emerged from the current Term. There were no blockbuster decisions. There were no retirements. And, so far as we can tell, the justices weren't at each others' throats at any point along the way.
In the absence of any such drama (just be patient, the next Court term promises to be a doozy, with cases involving same-sex marriage, immigration law, and the Affordable Care Act all perhaps on the docket), I thought I'd do something different this year for my Supreme Court wrap-up piece. It'll be shorter on analysis and longer on nostalgia. And I've even come up with a theme!
But first, and quickly, the analysis. Here are nine things we've learned -- or, importantly, have been reminded of -- since the first Monday in October.
1. A baseline for all discussion about the Court: With the exceptions proving the rule, it is still a very conservative court, as conservative as it has been in three quarters of a century. No one should be fooled into thinking otherwise. When a Reagan appointee, Justice Anthony Kennedy, is considered the Court's "center" -- and accordingly the only hope for progressive cases and causes -- there just isn't any room for debate on the matter. P.S. Imagine the fight that will take place over his successor!
2. There is a dogged majority on the Court -- all conservatives -- who continue to bend over backward to help corporations at the expense of individuals. We saw it earlier this month in the Court's Walmart class-action ruling. And we saw it earlier this year in the Court's arbitration ruling, which devastated the rights of consumers. Not since the 1930s, in fact, has the Court been so ardently pro-business.
3. When it comes to ideological jurisprudence, Justice Clarence Thomas is not Justice Antonin Scalia and Justice Kagan is not Justice Sotomayor. In fact, no two justices can be paired together under that criteria, even Chief Justice Roberts and Samuel Alito, the products of the presidency of George W. Bush. Every justice's duty is to the law, but every justice's soul's his (or her) own (as Shakespeare might have put it).
4. As you would expect from any group of nine brilliant people who have wildly different views of history and the law, the Court is often divided. Twenty-percent of its rulings this term, Scotusblog tells us, were resolved by a 5-4 vote (with Justice Kennedy almost always in the majority). On the other hand, these folks know how to get along, too. No less than 48 percent of the Court's rulings this term were unanimous. Kumbaya!
5.The jury, you could say, is still out on the newest justice, Elena Kagan, especially since she recused herself from dozens of cases because of her prior work as U.S. Solicitor General. We have learned that she can write a terrific dissent (see below) but not a whole lot else. She'll have fewer recusals next term and then fewer still the term after that. It will take a while for the tea leaves to rise up in the cup.
6. Very little about the 2010-2011 term, in particular, gives us much guidance toward predicting how the justices may rule on the big cases coming their way next term. The exception was made by Justices Thomas and Scalia, who made a specific point about their view of the scope of the Commerce Clause (and thus the legal legitimacy of the Care Act) in a January dissent in a case the rest of their colleagues didn't even want to hear.
7. Justice Alito is a pouter. After the infamous (and by that I mean silly) episode at President Barack Obama's State of the Union speech in January 2010, Justice Alito conveniently decided to spend SOTU Night 2011 thousands of miles from Washington, giving his own speech in Hawaii. No doubt the folks in Fiji are scanning the White House's schedule so they can invite Justice Alito over for a snack sometime in late January 2012.
8. It's still, and always, Justice Kennedy's court. He was in the majority an astonishing 94 percent of the time and in divided cases, which is pretty much what most people care about anyway, he was in the majority 88 percent of the time. He led the Court in both categories -- he was the fifth vote in 14 of the 16 rulings this term that were decided by a 5-4 vote -- which helps explain why it always seems like the lawyers are talking to him during oral argument before the Court.
9. By contrast, Ruth Bader Ginsburg, the oldest Supreme Court justice, was in the majority the least often, both in unanimous cases and in divided ones. Interestingly, she was in the majority far less often in the 2010-2011 term than she had been in the previous three terms, a sign either that the Court is moving more to the right (my theory, based upon the Alito-O'Connor swap) or that Justice Ginsburg is moving more to the left.