“The Shifting Supreme Court” is the latest from the University of Pennsylvania’s “American Justice” series, an annual review of the United States Supreme Court’s just-completed term. This 2017-18 Term issue is written by Todd Ruger, legal affairs writer for Roll Call. As with previous editions in the series, Ruger delivers a valuable recounting of the Term’s highlights for readers seeking a quick overview. He stumbles, however, when he tries to draw overarching themes from the Term.
Although the Court issued a near record low number of opinions in the Term (71), a fairly high number were significant. This is especially true when the Term is compared to the holding pattern the Court had been in before Justice Gorsuch’s confirmation, when for nearly 15 months it had only eight members.
During the Term, the Court decided a relatively low percentage of cases unanimously (39%), and a relatively large number by a 5-4 margin (26%). The Term’s highest profile decisions -- Gill v. Whitford and Masterpiece Cakeshop v. Colorado Civil Rights Commission -- were not close: the former was unanimous, while the latter was resolved 7-2. Agreement in the two cases was broad but not deep, however, as the Court left the toughest issues unresolved.
As with the 2016-17 term – when the earlier passing of Justice Scalia hung heavily over it -- perceptions of the Term are inevitably shaped by the retirement of Justice Kennedy (and the intrigue over who would replace him), even though it wasn’t announced until the last day. Thus, the book’s Introduction begins by recounting Justice Kennedy’s role for many years as the swing vote in landmark cases involving access to abortion, the rights of gays and lesbians, and campaign finance regulation. Ruger notes how liberals were deeply disappointed when Justice Kennedy voted as a consistent conservative in his final term, showing that neither political side could ever rest comfortably with so much national policy turning on a single lawyer in Washington.
The title’s declaration that the Term saw the Court “shifting” (presumably, to the right) seems premature. In fact, as Ruger recognizes in the book, new addition Justice Gorsuch voted the same as Justice Scalia would have, so there was no ideological change when the former came on board. From Ruger’s account of the Term, it is clear that the only rightward movement was not by the Court generally but with Justice Kennedy individually, including in Gill and Masterpiece Cakeshop. Any larger “shift” will only occur with the post-Term addition of Justice Kavanaugh (and, in light of some of Chief Justice Roberts’ votes early in the current term, may fall short of the conservative revolution predicted by many).
The book’s first chapter reviews Gill, which considered improper gerrymandering claims raised by Wisconsin Democrats (along with a companion case, Benisek v. Lamone, which addressed similar complaints by Maryland Republicans). According to Ruger, the decisions were expected to reveal “whether the Supreme Court would, for the first time, allow federal courts to stop partisan gerrymanders to stem the risk of erosion of the right of Americans to choose their representatives.” In the event, however, the results were anticlimactic.
Gill demonstrates the difficulty of determining the proper amount of politics that should be present in inherently political decisions. When the Supreme Court had last considered the issue in 2004, Justice Kennedy wrote a concurrence decrying gerrymandering, but stated that courts could only intervene if, at some future point, “workable standards . . . emerge[d] to measure” the burden the practice placed on voters’ representational rights. Challengers to the Wisconsin redistricting map thought they had come up with a workable standard called the “efficiency gap.” First proposed in a 2014 law review article, the gap sought to quantify the number of individual votes that were “wasted” due to either “packing” potentially like-minded voters in a single district or “cracking” them across several districts. Yet even a measure as clever as the “efficiency gap” failed to gain majority support, as the Court rejected the challenges to the Wisconsin (and Maryland) maps.
Although the gap was the most publicized aspect of the case, the Court’s decision was based on the more pedestrian issue of standing. Identifying the fundamental problem with the plaintiffs’ claim, the majority wrote, “It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
The case also reflects a theme considered throughout the book: the Chief Justice’s interest in protecting his Branch’s institutional integrity. At oral argument in Gill, he expressed concern that if the Court intervened in the redistricting case before it, it could expect an endless series of future challenges to redrawn maps (which are within the Court’s mandatory jurisdiction and not reviewed at the justices’ discretion), putting the Court in the position of constantly picking political winners and losers: “that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”
Ruger asserts that the Court didn’t close the door entirely on political gerrymandering claim and, as others have written, Justice Kagan’s concurrence may provide a roadmap for future challenges. However, the difficulty of proving redressable harm to the “individual legal rights” of voters (as opposed to noncognizable “generalized partisan preferences”), along with the departure of Justice Kennedy, may have sealed the fate of the challengers in the North Carolina and Maryland cases pending in the current term.
The next chapter considers Masterpiece Cakeshop, which was even more inconclusive than Gill. In Masterpiece Cakeshop, a baker had appealed sanctions imposed on his business by Colorado when, citing his Christian beliefs, he refused to prepare a custom cake for a same sex wedding.
More than any of the Term’s other significant cases, Masterpiece Cakeshop highlights Justice Kennedy’s legacy. As Ruger chronicles, the Justice’s regard for LGBT rights had been well-established in Romer, Lawrence, Windsor and Obergefell, as well as in a 1980 decision he authored while on the 9th Circuit. At the same time, as Ruger also notes, Kennedy’s vote in favor of the Masterpiece Cakeshop baker may have been presaged in Obergefell, where he emphasized that “the First Amendment ensures that religious . . . persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Citing another characteristic of the Roberts Court, Ruger writes, “The case ultimately showed how the Supreme Court, when faced with a compelling and important social issue, can find a compromise on a small part of the case that allows them to reach a partial consensus by putting off an ultimate decision on the main issue for another day.” The Court disposed of Masterpiece Cakeshop without deciding the thorny compelled speech issue central to the dispute. Rather, the outcome turned on two pieces of evidence: remarks by a Colorado civil rights commissioner that “freedom of religion” was “one of the most despicable pieces of rhetoric” and had “been used to justify . . . slavery [and] the holocaust,” and the fact that the same commission had rejected discrimination claims raised separately against other bakeries which had refused to make custom cakes with anti-same sex marriage messages. Thus, the record established non-neutral discrimination by the state based on the Masterpiece Cakeshop baker’s religiosity, violating the Free Exercise Clause in these circumstances.
In dueling concurrences, Justices Thomas and Gorsuch contended that forcing the baker to prepare a custom cake for a same sex wedding would be an unconstitutional compulsion of speech, while Justices Ginsburg and Sotomayor took the opposite view. Because the majority opinion left this fundamental First Amendment question unanswered, however, the rights of wedding singers, florists, photographers, and limousine drivers, not to mention related issues of compelled speech in contexts having nothing to do with wedding ceremonies, will wait to be resolved sometime in the future.
Consistent with its Chief Justice’s cautious incrementalism, the Roberts Court has had a significantly lower rate of overturning precedent than its predecessors, but the Term saw a slight uptick. The chapter entitled “How to Knock Down a Precedent” focuses on South Dakota v. Wayfair, Inc., where, in contrast to Gill and Masterpiece Cakeshop and contrary to its usually guarded approach, the Roberts Court both resolved the heart of the matter and overturned longstanding constitutional doctrine.
In its 1992 decision Quill Corp. v. North Dakota, the Court had re-affirmed a holding from 1967 that under the Commerce Clause, a state can only require a retailer to collect sales taxes if it had a store or other “physical presence” in the state. Accepting Justice Kennedy’s invitation in a 2015 case to revisit Quill, South Dakota ripened the issue in 2016 by enacting a tax law that was patently unconstitutional under that precedent. Unlike with the unrequited petitioners in Gill, this time Justice Kennedy delivered.
In the decision, Justice Kennedy wrote that although the purpose of the dormant Commerce Clause was to ensure a level playing field for out-of-state businesses, the revolutionary changes in consumer shopping habits since 1992 (not to mention 1967) had resulted in Quill skewing things in favor of businesses without any physical presence in a state. The demise of old business models had eliminated the factual assumptions upon which the “physical presence” rule rested and in an e-commerce world, a virtual presence would suffice.
The dissenters agreed that the 1967 decision had been wrong as a matter of Commerce Clause law. Ruger writes that at oral argument, however, the Court appeared split as to whether it should “keep a more reserved role when it comes to a big economic policy question, since Congress is free to act and better suited to come up with a nuanced policy.” Ultimately, the 5-4 majority decided that since the Court itself had made the mistake through its earlier decision, it should fix the mistake and, stare decisis notwithstanding, not wait any longer for Congress to do so.
The Court also revisited established constitutional doctrine in light of evolving technology and changed factual circumstances in Carpenter v. United States, which is discussed in the following chapter, “Privacy in the Digital Age.” Specifically at issue was whether to overturn the third-party doctrine, which arises out of Fourth Amendment “search and seizure” jurisprudence and holds that a criminal suspect has no reasonable expectation of privacy in information voluntarily given to a third-party business.
The doctrine had originated in two cases from the 1970’s and, although the Court did not overrule it or the earlier cases, Chief Justice Roberts’ majority opinion held that customers have a Fourth Amendment right to protect phone location records held by their cell service providers, and thus investigators would need to show probable cause and obtain a warrant before searching the records.
In doing so, the Chief Justice joined the four more liberal Justices, and Ruger cites the influence on him of a 2012 concurrence by Justice Sotomayor criticizing the 1970’s precedent as “ill-suited to the digital age.” The Chief Justice wrote similarly in Carpenter that at the time the Court devised the doctrine, “few could have imagined a society in which a phone goes wherever its owner goes, conveying . . . a detail and comprehensive record of the person’s movements.”
In dissent, Justice Alito criticized the majority’s “desire to make a statement about privacy in the digital age,” which, he argued, did not justify the threat created by Carpenter to valuable investigative techniques. Justice Kennedy also dissented, writing that obtaining records from a phone company did not implicate the right of individuals “to be secure in their persons, houses, papers, and effects” under the Fourth Amendment and that, as a practical matter, the majority decision drew an “unprincipled and unworkable line” between cell-site records and financial and telephonic records.
Beginning with “Empowering the Presidency,” Ruger’s analysis gets shakier over the book’s final four chapters, as he stretches to support his thesis that the Term saw an institutional shift to the right.
The chapter reviews the Court’s 5-4 decision upholding the third iteration of the Trump Administration’s “travel ban,” which temporarily barred entry into the United States of persons from five predominantly Muslim (and three non-Muslim) countries. Ruger states that the President’s provocative tweets and other statements about the issue, and how much they should factor into the Court’s legal analysis, became the heart of the case: “for many in the country, the lawsuit became a test of whether the Supreme Court would restrain a president who appeared to delight in enflaming racial tensions.”
However, in its opinion, the Court wrote that its focus was more long term: “[W]e must consider not only the statements of a particular President, but also the authority of the Presidency itself.” Seeking a resolution that would apply equally to President Trump now as in the future to, for example, a President Kamala Harris, the Court observed that it was reviewing a directive that was neutral on its face and addressed a matter within the core of executive authority. “[B]ecause there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.”
Drawing a parallel between the President and the Colorado civil rights commissioner, Justice Sotomayor’s dissent noted that in Masterpiece Cakeshop, the five justices in the majority had reached an opposite conclusion regarding the evidentiary weight given to offensive comments made by a government actor.
In this chapter and elsewhere, Ruger observes that Justice Sotomayor “often speaks about how her experiences shape her views,” and those experiences informed her dissenting view that the test should be how a “reasonable observer” would interpret President Trump’s statements. Of course, what is objectively “reasonable” may be hard to discern in a world where some view the Trump Presidency as akin to watching a horse run loose in a hospital (as comedian John Mullaney has joked), while others see it less dramatically as merely the results of the most recent Electoral College process.
Ruger notes that given the political and emotional importance of the case to both the pro- and anti-Trump camps, “it was clear that the justices would be seen as partisan by one side or the other.” That parties to a case (and their respective allies) have political agendas and are fiercely at odds does not mean, of course, that the Court’s decision can be dismissed as merely political. The Court cannot prevent people from feeling like it is working against them when their side of the partisan divide is on the losing end of a decision. However, such potential public perceptions cannot be the basis for legal analysis.
There should not be any great competition between the Chief Justice’s efforts to ensure that the Court is not perceived as merely another political institution, and the Court’s fundamental purpose – namely, “to say what the law is.” Oftentimes, when the Court “sides” with President Trump, it is in fact resisting public pressure and following the law, notwithstanding the furor swirling around a case. The Court would lose legitimacy and rightly be perceived as “political” if it followed one set of rules during the Trump Presidency, but applied different rules to all other Presidents.
Assessing Justice Gorsuch’s first full Term in “Gorsuch’s Arrival,” Ruger reviews various stylistic criticisms of his writing, questioning of counsel at oral argument, and the like. The chapter also shows how journalists and other court watchers strain to find any hint of human drama amongst the justices, repeating rumors seeping out from court staff that Justice Gorsuch’s style had antagonized his fellow justices. In doing so, they run up against the Court’s efforts to intentionally de-personalize its members as individuals, dating back to Chief Justice John Marshall’s insistence on unadorned black robes and single majority opinions.
Justice Gorsuch also is not responsible when politicians who helped place him on the Court later pat themselves loudly on the back for certain outcomes, as Ruger contends both President Trump and Senator McConnell did at the end of the Term.
More importantly, as a substantive matter, Ruger observes “how closely [Justice Gorsuch’s] view of the court’s role aligns with the view of his predecessor,” and not only in the 5-4 “conservative” decisions. Ruger describes how he relied on a Justice Scalia opinion in joining the more “liberal” justices in Sessions v. Dimaya, which held that a residential burglary did not constitute a “crime of violence” under immigration law and thus, did not support deportation.
Ruger then discusses the Term’s most consequential decision, Janus v. AFSCME, which was issued on its last day. Janus was a challenge to an Illinois statute that permitted unions to require all state employees (including those like the petitioner, who refused to join the union) to pay fees used to finance collective bargaining efforts. In its 1977 decision Abood v. Detroit Board of Education, the Court had ruled that important government interests justified the impingement upon the First Amendment rights of the non-union employees.
As in Wayfair, the Court overruled precedent after justices had previously telegraphed their inclination to do so. Before Janus, the Supreme Court had called Abood into question several times and, as Ruger recognizes, but for the passing of Justice Scalia in February 2016, the Court almost certainly would have reversed it in the 2015 Term. Thus, the outcome in Janus was not only consequential, but expected.
For the majority, Justice Alito wrote that in collective bargaining, unions were not solely concerned with increasing employee compensation, and often veered into opining on topics like “climate change, the Confederacy, sexual orientation and gender identity, evolution, and minor religions.” In addition, unlike employees of private companies, members of public sector unions necessarily depend on government spending for their livelihood, which Justice Alito claimed made their compensation negotiations inherently political.
Like Colorado in Masterpiece Cakeshop, public sector unions in Janus argued that petitioners’ complaints of improperly-compelled speech were an attempt to “weaponize” civil rights. The chapter also briefly reviews NIFLA v. Becerra, a third instance of accusations of weaponizing compelled speech claims. In NIFLA, anti-abortion providers of pregnancy-related services challenged a California statute requiring that they post at their facilities notices regarding the availability of abortions and related health care information. The Court split 5-4 on ideological lines and, consistent with his rightward tendencies in his last term, Justice Kennedy wrote a “strident” concurrence. Ruger ends the chapter with another example of politicians politicizing the Court, as minutes after the NIFLA opinion was issued, Senator McConnell’s staff tweeted out a photo of him shaking hands with Justice Gorsuch prior to the latter’s confirmation.
The final chapter, “Shifting Right,” addresses the most dramatic (but entirely expected) shift in the Term – namely, the change from the policies of President Obama’s administration to those of President Trump’s. Ruger details differences between the positions taken by the Department of Justice after the 2016 election, such as in the election law case Husted v. A. Philip Randolph Institute. There, in July 2016, the DOJ had supported an action challenging an Ohio statute that allowed voters who may be ineligible to be more easily purged from the registration rolls; after the Supreme Court agreed to hear the case in 2017, the DOJ said it had “reconsidered the question” and concluded that the statute should be upheld, a position that the Supreme Court ultimately agreed with in a 5-4 decision.
Ruger describes how the Court agreed with the United States in several other cases after the government’s position changed with administrations, including Janus and Masterpiece Cakeshop. He then reaches for an overarching theme when he writes, “In a country where Congress is stuck in partisan gridlock and unable to pass many laws, frustrated presidents, states, and citizens have turned to the federal court system to get their way. And if these cases all go one way – as they did in the 2017 October Term – the court opens itself up to criticism that it is just delivering partisan results.”
Ruger’s theme has some holes, however. First, Republicans controlled both Houses and the Presidency in 2017 and 2018, so any gridlock was internal to that party. Second, as Ruger recognizes elsewhere in the book, partisans will always criticize the courts for decisions that don’t go their way, and, depending on one’s politics, it’s easy to characterize a decision like Janus as either handing a victory to the GOP or ending a fundraising windfall enjoyed by Democrats after Abood. In addition, one of the changed position cases, Lucia v. SEC, went 7-2 in favor of the United States’ challenge to the process for appointing administrative law judges, which strongly supports the conclusion that the legal position of the previous administration had simply been incorrect. And the fact that the new positions prevailed in all these cases means, at the very least, they were legally sound, regardless of whether, as Ruger complains, the Republican Attorney General “crowed” about the results or Democratic Senators lamented them.
In the epilogue, “The Court’s New Center,” Ruger summarizes the Term as providing “a glimpse of what the Court could look like in a post-Kennedy era: a greater chance that the court will take on more contentious issues, a greater chance that conservatives will win, and an even greater role for the chief justice in shaping the court’s political moves.”
Rather than reaching out to decide the most contentious issues, however, a more plausible view is that the Term saw the Chief Justice’s effort to reduce the Court’s role in the nation’s political life, leaving most broad, disruptive social change for the two other federal branches and the states. In essence, his long game strategy seems to be intentionally ducking enough hot button issues such that, eventually, potential litigants will look elsewhere for direction on matters that, at least in the eyes of the Chief Justice, are not appropriate for judicial resolution. See, for example, the nothingburger results in Gill and Masterpiece Cakeshop, as well as his dissent in Wayfair, where he argued that Congress should address the sales tax issue.
Ruger notes that some like Dean Erwin Chemerinsky believe the Court will no longer have a swing vote justice between its conservative and liberal members. However, with Justice Kennedy’s departure, parties thus far seem to be aiming many of their arguments at the Chief Justice. One such argument is warning the Court to be wary of being perceived as a political decisionmaker and losing its institutional credibility. (In fact, Ruger himself offers such cautionary advice throughout the book.) How the Chief Justice responds to such admonitions is a focus of the current term, and undoubtedly will be thoughtfully covered in future editions of the “American Justice” series.