A Powerful Chief And Unexpected Splits: 6 Takeaways From The Supreme Court Term
Saturday, July 11, 2020
A momentous Supreme Court term is over. The last strokes of the pen were devoted to repudiating President Trump's claim that he is categorically immune from state grand jury and congressional subpoenas.
But the term also featured just about every flashpoint in American law — including abortion, religion, immigration and much more.
Here are six takeaways:
1. John Roberts may be the most powerful chief justice since the 1930s. He is the first justice since then to be both the controlling vote and the chief justice. That means that when he is in the majority, he has the important power to assign who will write an opinion, and that choice may well determine whether the decision is written broadly or narrowly. This term, Roberts was in the majority an astounding 97% of the time; he assigned the opinion in all but two cases.
2. Probably the most historic opinions he wrote were those rejecting President Trump's claim that he is categorically immune from state grand jury and congressional subpoenas for his pre-presidential financial records.
But in an election year, Roberts also wrote a variety of decisions that for now will likely keep the court out of the political maelstrom. His signature immigration decision prevented Trump from immediately getting rid of the program that offers protections for people who were brought to the U.S. illegally as children, known as "DREAMers." But it left ample room for conservative actions down the road.
Roberts also cast the deciding vote in a major abortion case that preserved the status quo, for now, but left plenty of leeway for the court to chip away at abortion rights in the future.
And he likely wrote the court's unsigned opinion, dismissing as moot the first major gun rights case heard by the court in a decade. That too leaves room for gun rights proponents to come back attacking gun regulations in the future.
3. Religion is the one area where social conservative won consistent victories this term. In three separate decisions, the court made clear that the high wall of separation between church and state, a doctrine that prevailed for much of the 20th century, is now a relic of the past. It has been replaced by a heavy emphasis on the free exercise of religion and an accommodation between church and state.
Roberts wrote the court's 5-to-4 decision gutting provisions is most state constitutions than have long barred using taxpayer funds for religious schools.
In another case, the court ruled that under the Constitution, lay teachers at parochial schools may not be protected by the nation's fair employment laws.
And in a third case, the court ruled that under the Affordable Care Act, employers with religious or moral objections may opt out of providing free birth control coverage in their employee insurance plans.
4. While conservatives have a clear five-justice majority, they can't seem to work together. Perhaps for reasons of either ego or frustration, conservatives wrote way more separate concurring and dissenting opinions — a total of 60 — compared to the liberals, who wrote far fewer concurring opinions and almost always dissented as a group.
The liberals seem to know they are playing defense. When they can get a fifth vote to prevail, they don't go off on their own in a way that could diminish their impact.
The four most conservative justices write many more separate opinions and are much more long-winded — their separate opinions total 734 pages.
When you drill down to the 20 cases that were decided by 5-to-4 or 6-to-3 votes, the numbers are even starker. Conservatives wrote 14 of 17 concurring opinions, meaning that they signed on to the outcome of the ruling but not on to all — or sometimes any — of the reasoning behind it. And they wrote eight of the nine solo dissents and eight of the 11 solo concurrences, writing for themselves alone.
The only time Chief Justice Roberts wrote a concurring opinion for himself alone was in the abortion case, presenting a Louisiana law identical a Texas law struck down four years ago.
Roberts, who dissented from the Texas decision, nonetheless cast the deciding fifth vote to invalidate the same law from Louisiana, citing the duty to adhere to precedent. But he did not join the liberals' reasoning, and in fact seemed to invite future cases that could undermine abortion rights.
5. Of the two Trump appointees to the court, Neil Gorsuch has been at once the most predictable and unpredictable this term. Predictable because in most cases he has turned out to be every bit as conservative as his political supporters hoped, and liberal detractors feared. But in two major majority opinions that he wrote, he completely defied early predictions.
The most headline-grabbing was his decision for a six-justice majority declaring that LGBTQ employees are protected by the 1964 law barring employment discrimination based on sex.
In another decision, on Thursday, he delivered to Native Americans their first major Supreme Court victory in many decades. Writing for himself and the court's four liberals, Gorsuch declared that much of eastern Oklahoma, including the state's second largest city of Tulsa, falls within Indian lands belonging to the Creek Nation.
Gorsuch's decision invoked the mistreatment and broken promises inflicted on Native American tribes over the course of U.S. history, and concluded that the land in eastern Oklahoma still belongs to the Creek Nation because Congress never revoked the treaties under which the land was designated as, in the words of the opinion, "Indian Country."
To hold otherwise, wrote Gorsuch, would "elevate the most brazen and longstanding injustices ... rewarding wrong and failing those in the right."
Although the decision could have major consequences, state and tribal officials immediately said that they could reach an amicable compromise to resolve those issues. That said, the fact is that the court's ruling has provided Native Americans the kind of leverage in negotiations that they have not had before.
6. Headline cases buried other personal court news. On June 21, Chief Justice Roberts fell while walking at a Maryland country club near his home, hitting his head hard enough to require stitches and an overnight stay in the hospital. The court did not disclose the incident when it occurred, but confirmed it on July 7, after the Washington Post first reported the incident.
Court press officer Kathy Arberg said in a statement, "The Chief Justice was treated at a hospital on June 21 for an injury to his forehead sustained in a fall while walking for exercise near his home. The injury required sutures, and out of an abundance of caution, he stayed in the hospital overnight and was discharged the next morning."
Arberg said doctors had had ruled out a seizure (he suffered a seizure in 1993 and another one in 2007). She said doctors believe the fall last month "was likely due to light-headedness caused by dehydration."
On a different note, Ginni Thomas, an outspoken conservative activist and wife of Justice Clarence Thomas, wrote to protest an overhead banner on Main Street in the tiny town of Clifton, Va., population 300. The banner reads, "Welcome to Clifton, where Black Lives Matter."
Thomas is white; her husband is the Supreme Court's only black justice. "BLM is a bit of a dangerous Trojan Horse and they are catching well-meaning people into the dangerous posturing that can invite mob rule and property looting," Ginni Thomas wrote, according to the Washington Post. "Let's not be tricked into joining cause with radical extremists seeking to foment a cultural revolution because they hate America."
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