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Event recap: The Roberts Court and OT2013

On Monday, following two panels on media technology and the digital age, the University of Georgia Law School, the Grady College of Journalism and Mass Communication, and the Peabody Awards co-hosted a panel on the Court itself, focusing on the Justices and the upcoming Term.

Before diving straight into the October Term 2013, the panelists – Pete Williams of NBC News, Tony Mauro of the National Law Journal, Tom Goldstein and Amy Howe of SCOTUSblog, and moderator Sonja West of the University of Georgia Law School – gave the audience, which was largely a mix of law and journalism students and professors, a view of the wider arc of the Roberts Court and its individual members.  With three associate Justices joining the Court following Roberts’s ascension to the position of Chief Justice, and four current members over the age of seventy-five, the Court finds itself in an age of transition but with an emerging incremental approach and conservative direction. Mauro argued that during the past few Terms, the Chief Justice has taken more control over the direction of the Court, with regard to both its docket and the outcomes. Using skills he developed as a Supreme Court advocate, the Chief Justice has demonstrated a mastery over developing coalitions and counting to five.

The Chief Justice is, of course, not the only member of the Court, and the panelists noted that the three female Justices have had an impact as well.  In the last Term, Justice Ruth Bader Ginsburg emerged as the new leader of the Court’s liberal wing after the retirement of Justice John Paul Stevens. Justice Elena Kagan has proven herself to be very strategically effective, rarely dissenting and largely able to align herself with other Justices, and a skilled writer as well.  Justice Sonia Sotomayor, who often dominates arguments with her questions, has demonstrated in her writings a deep and nuanced yet somewhat unappreciated legal analysis that could have an impact on future constitutional jurisprudence.

Thinking of the Court as a block, panelists focused on the extent to which the Court has moved cautiously and incrementally in its rulings, with Fisher v. University of Texas serving as a recent example. Howe recalled a speech by Justice Anthony Kennedy last year in which he expressed concern that the Court was taking on too many hot-button issues that could be better left to other branches of government. Ruling on divisive issues like abortion or religion, which will be a first for the present Court, inevitably highlights the political divisions on the Court, often to the chagrin of the Justices. This attention could itself create an atmosphere in which the Justices are reluctant to rule too strongly in any one direction, as in the Fisher or Perry cases.

Williams offered the Court’s approach to the Voting Rights Act as a prime example of the present Court’s step-by-step approach.  In Northwest Austin Municipal Utilities District No. 1 v. Holder, the Court intended to send Congress a message that the formula used to determine who must comply with the Act’s pre-clearance requirements relied on out-of-date data.  Four years later – during which Congress failed to act — the Court intervened and ruled the formula unconstitutional in Shelby County v. Holder.

As for the October Term 2013 itself, the panelists to varying degrees largely expressed skepticism about the fate of the same-sex marriage cases currently on a fast track to the Court.  Put another way, although the Hollingsworth v. Perry and United States v. Windsor decisions led to a wave of lawsuits seeking a declaration that there is a right to same-sex marriage, the Court may not be ready to issue that ruling. The central message from Perry is instead that the Supreme Court likely wants to avoid doing precisely that, but it may not have the luxury of sitting back and letting the process play out in the states.

This Term the Court may take up the issue of restrictions on abortion – in Cline v. Oklahoma Coalition for Reproductive Justice, a challenge to an Oklahoma law regulating medical (as opposed to surgical) abortions.  And whenever the Court returns to the issue of abortion, there is the potential for a very significant ruling. Although Justice Kennedy in Planned Parenthood v. Casey voted to salvage Roe v. Wade, he wrote for the Court in Gonzales v. Carhart (in which the Court upheld the federal ban on partial-birth abortion), suggesting that he has become more receptive to restrictions on abortion. Mauro also observed that the more conservative Justice Samuel Alito has replaced Justice Sandra Day O’Connor, the author and main proponent of Casey’s undue burden test. The panel predicted that the Court will materially restrict Roe with an incremental step, but one that will send a strong message to the states that restrictions on abortion will largely be viewed favorably by the Supreme Court.

Williams joked that National Labor Relations Board v. Noel Canning, the challenge to the constitutionality of the president’s recess appointments to the NLRB, is one that “nobody should win.” With the Senate confirmation process largely gridlocked, a ruling by the Court which limited the availability of recess appointments could strengthen minority leaders in the Senate and could have significant consequences for politics, the filibuster, and the nuclear option.

Finally, turning to the upcoming oral argument in McCutcheon v. FEC, in which the Court will consider the constitutionality of aggregate limits on campaign contributions, the panelists agreed that the Court is likely to strike down the limits. With the Court in Citizens United v. FEC having already emphasized that free speech in politics requires the ability to spend money on campaigns, and with the anti-corruption argument against contribution limits less persuasive in the case of an individual’s aggregate spending to multiple candidates, at least five members of the present Court seem poised to allow such spending.

Recommended Citation: Andrew Hamm, Event recap: The Roberts Court and OT2013, SCOTUSblog (Sep. 13, 2013, 5:21 PM),