Everything you read about the Supreme Court is wrong (Updated)
Ideologues on both the left and right, as well as the public generally, frequently repeat their own received wisdoms that the Supreme Court is an easily categorized institution and that the Justices are committedly "liberal" or "conservative," with Justice Kennedy as the lone swing vote. Liberals and conservatives also consistently accuse their opposites of being "activists," a point vividly on display in the Senators' opening statements in the Kagan confirmation hearings. The just-completed Term proves, I think, that those generalizations are often misleading or outright wrong.
The general perception is that the Court decides its big cases by five-to-four majorities on ideological lines. For example, the conservative majority in Citizens United recognized a greater constitutional right for corporations to spend money in elections. McDonald v. City of Chicago extended gun rights to states and localities. Perdue v. Kenny A narrowly limited the ability of civil rights attorneys to receive an enhancement of their fee awards on the basis of great success. And in a summary order, Hollingsworth v. Perry blocked the video transmission of the "Proposition 8" trial over gay marriage in California.
Much more rarely, conventional wisdom goes, Justice Kennedy "flips" to give a narrow win to the four "liberals." So Christian Legal Society v. Martinez authorized universities in certain circumstances to deny funding to student groups that exclude certain students from membership. Padilla v. Kentucky held that attorneys have an obligation to advise their clients of the immigration consequences of pleading guilty. And in Wellons v. Hall, the Court summarily ruled in favor of a death penalty defendant.
The liberal critique of the Court is that the conservative majority is moving the law decidedly to the right at every turn. Thus, Citizens United overturned decades of precedent, and McDonald significantly expanded gun rights.
That is particularly true, it is said, with respect to the Court's "pro-business" bias. By my count, the U.S. Chamber of Commerce filed briefs in fifteen cases, winning eleven. Thus, Citizens United is a boon to corporations. Free Enterprise Fund v. PCAOB accepted a business-driven attack on the body that issues regulations under the Sarbanes-Oxley law. Then Morrison v. National Australia Bank sharply cut back on the ability to bring suits to remedy overseas securities fraud that harms U.S. consumers. And the Court's aggressive effort to close the courthouse doors continued in Rent-A-Center, West v. Jackson, in which the Court held by a vote of five to four that a challenge to an arbitration agreement is itself subject to arbitration; however, in Stolt-Nielsen v. AnimalFeeds International Corp. the same five-member conservative majority limited the availability of that relief in cases in which arbitration could benefit plaintiffs by providing a forum for class-action litigation. And in Hertz Corp. v. Friend the Court eliminated a common tool for keeping suits in state, rather than federal, courts.
Liberals are particularly focused on "arch-conservative" Justices Scalia and Thomas. For example, those two Justices dissented to argue in Graham v. Florida that it is never "cruel and unusual punishment" to sentence a juvenile to life in prison without any possibility of parole "“ a position that even the conservative Chief Justice Roberts rejected. And they alone dissented from the rulings in Jefferson v. Upton, holding that a court of appeals failed to consider a death penalty defendant's arguments in support of his claim that his attorney failed to investigate mitigating evidence; Presley v. Georgia, reaffirming a defendant's constitutional right to an open trial; and Holland v. Florida, finding that attorney neglect tolled the limitations period to file a habeas corpus application.
On the other side of the ideological divide, conservatives view the Court's left as "activist" "“ i.e., insufficiently deferential to the political branches of government and too willing to overturn precedent. Justices Ginsburg, Breyer, and Sotomayor thus dissented in Holder v. Humanitarian Law Project to reject the government's position that the "material support" statute constitutionally forbids non-violent advocacy that is coordinated with organizations that have been designated as involved with terrorism. And in Salazar v. Buono, the Court's left would have upheld an injunction against the statute transferring the "Mojave cross" to private hands.
Conservatives also believe that the left coddles criminals. For example, in Skilling v. United States, Justices Stevens, Sotomayor, and Breyer dissented arguing, that the Court should expand the basis for overturning a criminal verdict based on pre-trial publicity.
Each of those characterizations of the Court obviously has some support, but in reality each is in significant part a caricature designed to fit certain preconceptions. In a term with roughly ninety decided cases, it is always possible to pick out a few examples to support almost any proposition. But a fair review shows that the Term's decisions, and the Justices themselves, were a varied and shifting mix.
Start with the Court's ideological divide. Although some cases are decided five to four, that’s less than twenty percent of the cases this Term. Roughly half the decisions are nine to zero. Only slightly more than one in ten cases involved the narrow liberal-conservative divide (fewer, if we don't include cases in which we presume Justice Sotomayor would have voted with the left had she not been recused).
Though the Term ended (as it often does) with decisions decided along ideological lines, other five-to-four decisions that intuitively might have been decided on an ideological basis during the course of the Term were instead resolved by totally unpredictable alignments. For example, the Court in Dolan v. United States broadly read judges' power to order restitution (a "conservative" outcome) by a majority of Thomas, Ginsburg, Breyer, Alito, and Sotomayor, over the dissent of Roberts, Stevens, Scalia, and Kennedy. (This was the exceptionally rare case of the five most junior Justices joining together against all their senior colleagues.) Then Magwood v. Patterson broadly permitted a habeas corpus petitioner who prevails in a habeas petition to bring a new challenge to his subsequent sentence (a "liberal" result) in an opinion by Thomas (!) joined by Scalia, Stevens, Breyer, and Sotomayor, over the dissent of Roberts, Kennedy, Ginsburg, and Alito. Thomas also wrote the defendant-favoring opinion construing the Speedy Trial Act in Bloate v. United States, over the dissent of Justices Alito and Breyer. In Shady Grove Orthopedic Associates v. Allstate Insurance Co., the Court held that state law cannot block federal class actions (a pro-plaintiff result) in an opinion by Justice Scalia (!) joined by Roberts, Stevens, Thomas, and Sotomayor, over the dissent of Kennedy, Ginsburg, Breyer, and Alito.
It is certainly fair to say that some of the most consequential cases of the Term are decided by that narrow conservative majority. Citizens United and McDonald fit that description, as does the attorney's fees case, Perdue.
But it is inaccurate to describe the Court as methodically on the march to the right. The ideologically confused majorities just described illustrate the point. So do other decisions with a conservative orientation that pulled up well short of their farthest possible reaches. Thus, the Free Enterprise Fund decision announced a critical proposition of constitutional law but left the PCAOB intact other than the relatively minor surgery of excising the "for-cause" removal provision of its governing statute. McDonald did significantly change the understanding of the Second Amendment, but it’s far from clear that it will significantly affect states’ ability to regulate guns and gun possession. Salazar v. Buono invalidated an injunction against the Mojave cross land-transfer statute (a conservative result). But Justice Kennedy's opinion for the Court, joined by the Chief Justice, permitted the plaintiff to continue to pursue his claim under the Establishment Clause on remand. In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Court not only rejected a property rights challenge to a state beach-erosion statute (a liberal result), but Justice Kennedy also declined to provide a fifth vote for the proposition that a court ruling could ever constitute a "taking" of private property requiring "just compensation."
Those more limited rulings in part reflect the fact that "“ contrary to liberal characterizations "“ the Court's conservatives are far from monolithic and instead hold very diverse views about various provisions of the Constitution and the Court's proper role. In Buono (the Mojave cross case), Justice Alito rejected the view of Roberts and Kennedy that the plaintiffs could pursue their claim on remand; Scalia and Thomas declined to reach the merits because they concluded the plaintiff lacked standing. In United States v. Comstock, which upheld Congress's power to provide for the civil commitment of sexually dangerous persons after the completion of their prison sentences, the Chief Justice joined in full in the left's broad interpretation of Congress's power under the Commerce Clause; Kennedy and Alito did not; and Scalia and Thomas would have invalidated the statute. In Padilla (the case about advising clients about the immigration consequences of pleading guilty), Kennedy joined the left, Roberts and Alito articulated a middle ground standard, and only Scalia and Thomas would have found that the attorneys had no relevant obligation. And in Citizens United itself, Alito (along with Thomas) joined an opinion by Justice Scalia defending the result on originalist grounds, but the Chief Justice did not; Alito in turn joined the Chief's discussion of stare decisis, but Scalia and Thomas did not.
Those differences within the Court's right also arise in other cases that illustrate liberals' profound misunderstanding of Justices Scalia and Thomas. Decisions such as Graham (juvenile life without parole) and Presley (open courts) illustrate that those two Justices do take a narrow, government-favoring view of certain provisions of the Constitution. But it is easy to overlook that their principled reading of other provisions regularly leads Scalia and Thomas to adopt the very most defendant-favoring positions on the Court. In previous Terms, Scalia and Thomas have been a part of the majority revolutionizing both sentencing and the right of confrontation, which favor criminal defendants. This Term, in Skilling, they would have invalidated the honest-services statute as unconstitutionally vague. In Comstock, they would have invalidated the civil commitment statute as beyond Congress's powers. So too in civil cases, their strict fidelity to text can lead to "liberal" results. In Magwood (the case involving successive habeas applications), they joined Stevens, Breyer, and Sotomayor to form a five-Justice majority holding that the petitioner's application was permitted. In Merck & Co. v. Reynolds, only Scalia and Thomas would have adopted the very most pro-plaintiff reading of the "discovery rule" for the statute of limitations in securities fraud actions.
The most consistently "conservative" Justice on the Court "“ if conservative is interpreted to mean expressing a consistent confidence in the government and narrow construction of the Constitution "“ is instead Justice Alito. He was the most reliable vote for the position of the government, particularly in criminal cases. Justice Alito alone dissented from the Court's decision in Stevens v. United States, holding that a statute which criminalizes distribution of videos depicting animal cruelty violates the First Amendment. He also wrote solo opinions in Skilling (expressing a narrow view of the circumstances in which pre-trial publicity would preclude a fair trial); Buono (arguing against a remand to permit the plaintiff to make out an Establishment Clause claim); Holland v. Florida (narrowly interpreting the circumstances in which the time to file a habeas application would be tolled); and Bobby v. Van Hook (urging that the views of the American Bar Association deserve no special deference).
Another excellent illustration that the conservatives have not been aggressively ideological in applying the power that comes with their majority is the distribution of "summary reversals." Generally speaking, these are cases in which there is no circuit conflict (the traditional basis for certiorari) but instead the Justices conclude that the lower courts significantly misapplied settled precedent. So the Court issues an opinion reversing without even bothering to have the case briefed and argued. If the Court's conservatives were committed to intervening only to move the law to the right, and if they refused to acknowledge the error of government-favoring rulings by the lower courts, summary reversals would be heavily biased towards the state. (The Court does have, for example, a semi-regular practice of summarily reversing defendant-favoring habeas corpus rulings by certain liberal judges of the Ninth Circuit.)
But this Term, more summary reversals instead favored criminal defendants. There were five summary rulings favoring the government in criminal cases: Bobby v. Van Hook and Wong v. Belmontes (ineffective assistance of counsel); Michigan v. Fisher (police justification for entering a residence); McDaniel v. Brown (sufficiency of the evidence); and Thaler v. Haynes (deference to state court criminal rulings). By contrast, seven summary opinions favored defendants, generally by broad majorities: Presley (the open-trial case; 7-2); Wellons v. Hall (5-4), Corcoran v. Levenhagen (9-0), and Jefferson v. Upton (7-2) (habeas corpus procedure); Porter v. McCollum (ineffective assistance of counsel; 9-0); Wilkins v. Gaddy (prisoners' rights under the Eighth Amendment; 9-0); and Sears v. Upton (ineffectiveness of counsel; 5-4).
The liberal critique of the Court as grossly pro-corporate similarly does not hold water. Citizens United is undeniably a pathbreaking case that will enhance the role of corporations in the political process. So too, rulings in recent terms in cases such as Ashcroft v. Iqbal increased the prospect that defendants (which are often corporations) will have greater success in securing the early dismissal of lawsuits.
But it simply is not accurate to say more broadly that the Court consistently rules in favor of corporations or defendants. Thus, the data on U.S. Chamber of Commerce briefs (i.e., that it prevailed in eleven of fifteen cases) is misleading because it does not account for the relative significance of the cases or the fact that the Chamber did not file briefs in five other cases in which plaintiffs prevailed. For example, in the single largest civil rights litigation case of the Term, Lewis v. City of Chicago, another employer group (the Equal Employment Advisory Council) filed in support of the defendants' position unsuccessfully urging the application of a short statute of limitations period. Another corporate group, the Defense Research Institute, filed unsuccessful briefs in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich (holding 7-2 that there is no mistake of law defense under the Fair Debt Collection Practices Act) and Hardt v. Reliance Standard Life Insurance Co. (holding 9-0 that an ERISA claimant who secures a court order remanding to the insurance company is eligible for attorney's fees).
Liberals who specifically assert that the Court is "closing the door" to litigants ignore decisions this Term that rejected efforts to erect hurdles to civil litigation through statutes of limitations (in Merck & Co. (the securities fraud case) and Krupski v. Costa Crociere S.p.A. (adopting 9-0 a broad interpretation of a plaintiff's right to have an amendment to her complaint "relate back" to her initial filing prior to the expiration of the statute of limitations)) and state laws barring class actions (Shady Grove). And although the Court did limit suits under the securities laws (National Australia Bank) it rejected attempts to limit claims under the antitrust laws (American Needle v. NFL), the Investment Company Act (Jones v. Harris Associates) and the Fair Debt Collection Practices Act (Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich).
There isn't any more merit to the common critique from the right "“ that the more liberal members of the Court are "activist" in the sense that they are more likely to invalidate acts of Congress rather than showing appropriate deference to the political process and moreover are disrespectful of precedent. In fact, the Court's more conservative Justices are significantly more activist in that sense. That is no surprise: so-called "activism" is in fact a reflection of who holds power on the Court. When it was oriented to the left in the later years of the Warren Court and the Burger Court, liberal Justices favored moving the law (including particularly constitutional law) in that direction, invalidating legislation they found objectionable and overturning contrary precedent. Now the shoe is on the other foot, and it is the conservatives who have the power to invalidate legislation that is contrary to the Constitution as they read it and to overturn earlier, liberal-leaning decisions.
By far, the most significant statute overturned this Term "“ both in terms of its practical implications and the extent to which it had received thorough legislative consideration "“ was the provision of the McCain-Feingold legislation limiting corporate participation in elections that was struck down in Citizens United. In my opinion, the Court was also "activist" in reaching out to decide the constitutional question because it could instead have narrowly construed the statute not to apply to the movie in that case (just as it narrowly read the honest-services statute in Skilling). After that, the McDonald guns rights ruling may invalidate dozens (and perhaps far more) gun regulations around the country. And though the left and right dispute the point, there is a significant argument that Free Enterprise Fund calls into question the "for cause" removal provisions in many federal statutes. It was also conservative Justices (other than Scalia) who were most willing to leave the door open to holding that it is unconstitutional for Washington State to require the disclosure of the identities of the signatories of the referendum in Doe v. Reed.
Among all the Justices, it is in fact Scalia and Thomas "“ frequently heralded by conservatives as ideal members of the Court "“ who hesitate the least in invalidating legislation or (with respect to Thomas) calling for the overruling of prior precedent. They not only joined the Citizens United majority, but they would also have held unconstitutional the "honest services" statute (Skilling), the civil commitment statute (Comstock), and the ruling upholding a beach-erosion statute (Stop the Beach).
Just as fascinating is Justice Thomas's openness to reconsidering almost every issue in the law that he views as wrongly decided. This Term, he wrote eight separate opinions suggesting the reconsideration of existing law: McDonald (incorporation); Berghuis v. Smith (fair cross-section requirement for juries); Milavetz, Gallop & Milavetz v. United States (commercial speech); Maryland v. Shatzer (custodial interrogation); Mohawk Industries v. Carpenter (interlocutory appeals); Carachuri-Rosendo v. Holder (immigration); United States v. O'Brien (jury trial rights); and Wilkins v. Gaddy (cruel and unusual punishment).
None of the points above is intended to deny (on the one hand) that the Court is in fact reasonably conservative or (on the other hand) that liberal Justices are perfectly capable of engaging in "activism." Instead, my point is that the broad brush with which the Court is frequently characterized tends to obscure rather than illuminate. It is a far more complicated institution.
I admit that the nuance and diversity among the Justices' views, and varied directions of their decisions, was more apparent to me this Term than in any other that I can remember. It's worth pausing to consider why that might be true. In addition to the fact that much depends on the precise mix of cases that happen to be reviewed, this may illustrate the point often made by the Justices that a change in the Court's composition has unexpected consequences. Justice Sotomayor was appointed last year, of course, after the relatively recent confirmations of the Chief Justice and Justice Alito. Before that, it had been more than a decade since the last change in membership. In that earlier period, now well behind the Court, the Justices had settled into a fairly regular pattern of votes in significant cases.
Relatedly, I suspect that Justice Stevens' own anticipation of his likely departure had some consequences this Term, as he shifted from his recent role of generally leading the left to both regularly writing separate dissents (he penned five solo dissents and two other solo opinions that were essentially dissents) and also joining the conservatives in significant cases (Humanitarian Law Project and New Process Steel v. NLRB (involving the validity of NLRB decisions made by a two-member board)). If the Court's shifting membership is a factor, then we would expect to see still more changes next Term when Elena Kagan becomes an Associate Justice.