Justices who will shape Supreme Court’s future are matching pairs
By Robert Barnes,
The Supreme Court term that ended Monday lacked the blockbuster decisions of years past, but it appeared to make one thing clear: George W. Bush and Barack Obama got what they hoped for when they nominated the justices who will shape the court’s future.
It can be treacherous to predict a justice’s path based on early service, and presidents have been disappointed by the positions their nominees take when they reach the bench.
But this year, the four youngest justices separated neatly into the court’s ideological wings and then presented a unified front.
Obama’s choices, Justices Sonia Sotomayor and Elena Kagan, agreed 94 percent of the time this term, according to statisticians at SCOTUSblog.com. The only pair that agreed more were Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., Bush’s picks, who parted ways in only 4 percent of the court’s decisions.
Roberts joined the court in 2005, Alito the next year, Sotomayor in 2009 and Kagan last August — and this term presented opportunities in which the four divided into debate partners.
Alito and Sotomayor brought different lessons from their time as prosecutors and judges as they wrangled over criminal justice issues; he was more likely to cite “public safety,” while she mentioned “dignity” or “common sense.”
And it seemed like the opening act of what will be a very long-running play Monday when Kagan ended her first term with a rare decision to read from the bench a point-by-point rebuttal of Roberts’s opinion that struck down Arizona’s campaign finance law.
If conservatives never doubted Roberts and Alito, the left had questions about Sotomayor’s philosophy and the lack of a paper trail for Kagan, who had not been a judge.
But Sotomayor has voted consistently with liberal Justices Ruth Bader Ginsburg and Stephen G. Breyer, and Kagan has written two powerful dissents in cases controlled by the conservative majority. “By now there should be no question that Justice Kagan was ready to be a Supreme Court justice,” said Paul D. Clement, who was solicitor general under Bush.
Washington lawyer Gregory G. Garre, who succeeded Clement in the Bush administration, said that the consistency of the new justices, on the left and the right, “probably shows the greater scrutiny that goes into vetting nominees these days.”
But he and others warned against drawing too many conclusions from a session that lacked standout decisions, such as 2010’s Citizens United v. Federal Election Commission, which loosened campaign finance restrictions on corporations and unions and ignited partisan scrutiny of the court.
This term, Garre said, “was the calm after the storm of Citizens United and the calm before the storm of health care,” one of several controversial issues that the justices may consider soon.
It was a term that renewed questions about whether the court’s conservative majority has a corporate bias; perhaps the most notable decision was its ruling that blocked what would have been the nation’s largest class-action lawsuit, filed by female employees of Wal-Mart.
Robin Conrad, who heads the litigation arm of the U.S. Chamber of Commerce, was almost defensive about her group’s success at the court, pointing out that this term the chamber lost about as many cases in which it had an interest as it won. Those who refer to the court as reflexively pro-business, she said, do so at their own peril.
Still, she noted that the group had prevailed in the “triple crown,” the cases it cared about most: Wal-Mart; a decision in favor of AT&T that makes it harder for consumers to band together to sue over contracts; and a decision that said states must defer to the Environmental Protection Agency instead of suing power plants that contribute to global warming.
The chamber lost when the court backed an Arizona law that threatens to lift business licenses for employers who knowingly hire illegal immigrants. And the justices continued the trend of supporting employees who say they faced retaliation when they complained of discrimination or wrongdoing.
Those decisions prompted a wry observation from Stanford law professor Pamela Karlan, who said the court cares about retaliation, “but it never seems to find actual discrimination.”
First Amendment cases dominated the court’s agenda. The justices overwhelmingly agreed that “even hurtful speech on public issues” deserves protection, ruling in favor of Westboro Baptist Church’s right to picket the funerals of fallen troops. Alito was the lone dissenter, speech rights being one area in which he sometimes differs with Roberts.
The court extended the protection to some forms of commercial speech, and said free speech rights mean that a state may not prohibit the rental or sale of violent video games to minors.
And, in the case that prompted the showdown between Roberts and Kagan, the conservative majority once again invoked political speech rights to strike down Arizona’s law giving matching public money to candidates facing well-funded opponents.
The court looked and sounded different, with new member Kagan boosting the number of women on the bench to a historic high. Lisa S. Blatt, a Washington lawyer who holds the record for arguments before the court by a female attorney, noted the “new triumvirate” of Ginsburg, Sotomayor and Kagan as sharp questioners and active participants in oral arguments.
But some things don’t change. Justice Anthony M. Kennedy remains the most influential member of the court when ideological divides prevail. In the 16 cases decided by a vote of 5 to 4, he was in the majority in all but two.
In the handful of cases in which liberals prevailed — including a ruling that California must reduce the number of prison inmates or that children must be treated differently when given Miranda warnings — it was because Kennedy sided with them.
Twice as often, the Ronald Reagan appointee voted with the court’s consistent conservatives.
Perhaps reflecting the nature of the cases this term, the percentage decided unanimously or with only one dissenting vote — 63 percent — was an all-time high for the court headed by Roberts.
Harmony may be more elusive next term. The court already has agreed to decide the Federal Communications Commission’s authority to police the airwaves for indecency, the government’s power to track suspects with global positioning systems and unions’ ability to collect dues.
Waiting in the wings are Arizona’s immigration law, same-sex marriage, affirmative action in higher education and, depending on how quickly lower courts move, the Affordable Care Act.
Said Clement: “Not all Supreme Court terms are created equal.”