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Thoughts on this Term and the Next

It’s always perilous to try and generalize about a Supreme Court Term.  Roughly 80 cases on diverse topics decided by nine different people don’t collectively produce clear themes.  When they do appear to, it’s often a mirage that reflects the coincidence of cases that happen to fall together by chance within a single term.

But that never stopped me before.

Here is what strikes me most about this Term.  The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role.  To be clear, that isn’t the Court’s principal occupation.  Most of its docket is filled with important but ordinary questions of federal law.  But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases.  NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended.  Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I’m right about the direction of the case law, the Court’s methodology is striking.  It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law.  This approach may be in the starkest relief if next Term the Court cites its recent decision in Wisconsin Right to Life as precedent for concluding that McConnell v. FEC and Austin v. Michigan have been significantly undermined and should be overruled.  The plurality and concurrence in Wisconsin Right to Life famously debated how aggressively the Court should go in overruling prior campaign finance precedent.  The Chief Justice urged patience – not moving more quickly than required – and the wait may not have been long.

There is nothing illegitimate about that approach.  It’s easy to demonize decisions with which you disagree as either exercises in raw judicial power (the truth of the matter is that the principal difference between McConnell and Wisconsin Right to Life is that Justice O’Connor was replaced by Justice Alito) or outright sneakiness.  Neither is accurate or fair.  Just because one set of Justices gets to a constitutional question first does not give it a greater claim to “constitutional truth.”  I disagree (sometimes substantially) with the direction of the law, but this incrementalism is rooted in a consistent vision of the law and a deep concern for the Court as an institution. 

Overgeneralizing broadly, conservatives believe that doctrines like substantive due process, the exclusionary rule, and a high wall separating church and state aren’t merely wrong but overstep the limited role of judges and endanger the legitimacy of the Supreme Court.  Turning back those decisions, in turn, is thought to (among other things) enhance respect for the Court.  The Chief’s professional life is defined by the Court — as a clerk, Principal Deputy Solicitor General, private practitioner, and now the Chief Justice — and his institutional commitment to it, including ensuring that it is regarded as an institution of integrity rather than a political football (see my earlier post on the Ricci opinion) — is profound.

But that perspective – when taken by a thoughtful judge who has the long view – also counsels in favor of moving at a measured pace.  If the Court instead were to announce in rapid succession the overruling of its prior decisions permitting regulation of campaign contributions, guaranteeing a right to an abortion, and finding affirmative action consistent with the Fourteenth Amendment, then the public would likely be left with the impression that constitutional law is nothing more than a power play between competing ideologies that reflect nothing more than the happenstance of the most recent appointments.

For the moment, there is no reason to rush.  Time permits a jurisprudence of not just originalism, or textualism, but actuarialism.  The sand running through this hourglass will not expire for eight years. 

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left.  If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left.  Nothing changes.

It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology.  Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now).  Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left.  Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon.  Again, no need to rush.

That isn’t to say that the conservatives actually have the votes now to undo the legacy of the Warren Court.  The contrast between the five-to-four rulings in Caperton (constitutionalizing a right in extreme cases against decisions by a judge in favor of a supporter) and Osborne (rejecting a claimed due process right to DNA testing) demonstrates that Justice Kennedy is far from committed to the project.  So too do his narrower opinion in Parents Involved and his refusal to overrule the exclusionary rule.  Also, he will not retreat from providing a fifth vote with the left on certain questions of executive power (see Hamdan), the death penalty (execution of minors and the mentally retarded), and gay rights.

But Justice Kennedy is not the swing vote of Justice O’Connor, and on questions like race, religion, abortion, and campaign finance I think he is ready and willing to continue to move the law.  He voted with the left in five 5-4 decisions this Term.  But in every case that I view as genuinely important and ideologically freighted, he voted with the right:  Ricci, Iqbal, Bartlett, Osborne, Penn Plaza, Gross, Herring, Flores, and Montejo.  Caperton is the only arguable counter-example.

Nor are the Court’s doctrinal moves to the right limited to mapping out landmarks for future travels.  This Term, the Court in Montejo overruled Michigan v. Jackson, an outgrowth of Warren Court criminal procedure law.  The Court’s unexpected decision in Gross – deciding an important question about mixed-motive discrimination cases without briefing and in a way that reads the same statutory text quite differently than its predecessors – also was quite aggressive, and contrasts with the Court’s recent refusal to reverse course from decisions recognizing implied rights against retaliation. 

With that backdrop, it’s interesting to look ahead to what next Term might bring.  A material shift in campaign finance law seems inevitable in Citizens United.  The Sarbanes-Oxley case presents the opportunity to establish important principles of Presidential power, the unitary executive, and separation of powers.  The grant in Pottawattamie suggests that prosecutors will get greater immunity.  Standing to litigate is likely to be further limited in Salazar.  The right to counsel under Edwards v. Arizona is poised to be limited in Shatzer.  Excepting Citizens United, I expect these decisions to be incremental, and even that decision will be a move in the direction of still broader constitutional protection for campaign advocacy.  But the direction of the cases will be unmistakeable.

More pathbreaking and broadly noted will be a not-yet-granted case:  one of the petitions addressing whether the Second Amendment is incorporated against the States; Heller suggests the Court will find the right incorporated.

The left is likely to gain a little ground in at least one of the juvenile sentencing cases (Graham and Sullivan), in which the life sentence will likely be invalidated.  That’s not much.

Three cases present issues for which that I’m more doubtful in my predictive ability.  The fact that the Court granted the petition in Stop the Beach suggests – unexpectedly to me – that in returning to property rights the Court will find a violation of the Takings Clause.  And Powell presents a question regarding the scope of Miranda, a decision derided by conservatives but which the late Chief Justice Rehnquist ultimately embraced for the Court.  My theory that decisionmaking in this area is guided by concerns for institutional legitimacy suggests that the Court will find a violation of Miranda.  And Comstock presents an important question of federal power in the context of law enforcement, on which the views of conservatives and liberals can vary tremendously.

Changing gears to another topic entirely, I think that the most interesting Justices, by far, were Justices Scalia and Thomas.  Both remain the most principled members of the Court.  They joined the defendant-favoring majorities in Gant and MelendezDiaz, as they consistently have done in the recent lines of jury-right and confrontation cases.  Justice Scalia joined the left to provide a majority in Cuomo and Spears.  Justice Thomas did the same in the maritime punitive damages case, Atlantic Sounding.  There is no counter-example in which a member of the left joined the Court’s four most conservative Justices to provide a majority.

Justice Thomas, in particular, remained willing to front new theories on critical questions, often writing only for himself, as in NAMUDNO.  No other member of the Court is so independent in his thinking.  The irony of course is that there remains a public perception, rooted in ignorance, that he is the handmaiden of other conservative Justices, particularly Justice Scalia.  I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.

In terms of the statistics, Justice Kennedy’s influence – suggested in the 5-4 numbers above – is tremendous.  He was in the majority in roughly 92% of the cases.  (One of his six dissenting votes was a meaningless disagreement over whether certiorari should be granted.)  Next closest was Justice Scalia at 84%.

Overall, the Court was exceptionally divided this Term. Our summary memo has data on the extraordinary average number of dissenting votes.  The roughly 30% of cases decided 5-4 is comparable to OT2006, in which the left ended the Term on a particularly bitter note.  Still more striking is the percentage of cases decided 6-3 or 5-4:  roughly 45%; compare that to 34% (OT2007); 27% (OT2006); and 28% (OT2005).  That’s a stark contrast. (See all of our statistics here.)

But close divisions in the cases shouldn’t be confused with a failure to provide clear guidance.  The two have nothing to do with each other, and the Court has made significant progress in issuing opinions and judgments that spell out definite rules.  This Term produced only a single plurality opinion.  Compare that with 3 (OT2007); 4 (OT2006); and 4 (OT2005).

Somewhat relatedly, there were no recusals by Justices in merits cases this Term.  In the past, the failure of one or more Justices to participate in a case produced the prospect of a 4-4 tie, or fewer votes available to grant certiorari.