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.”