7 Takeaways, 14 Top Cases From A Short-Handed High Court
As the Supreme Court's term comes to an end, here are some takeaways:
The signal event in the 2015-2016 term was not a decision but a death. The court lost its longest-serving current member, Antonin Scalia, who died in February at age 79. Scalia had been appointed by President Ronald Reagan in 1986 and had long been the court's intellectual anchor on the right. Scalia strove to read the Constitution as written and resisted efforts to expand its meaning or intent. His absence from a closely divided court led to a number of 4-4 ties, which allowed the last decision by lower courts to stand. Harder to quantify was the difference Scalia's absence made to the other justices' thinking and decision making.
The loss of a clear-cut conservative majority turned some of the biggest cases of the year into dogs that didn't bark. Some conservative legal activists had anticipated several high-impact victories in this term. They hoped to affirm restrictions on clinics providing abortions, knock out affirmative action in college admissions and permit states to count only eligible voters when apportioning their legislatures. They also saw a chance to free public employees such as teachers who oppose unionizing from the costs of collective bargaining. But with Scalia gone, the court could not muster the votes to accomplish any of these ends. Some of the cases may return to the court once all its seats are filled, but the missed opportunity and loss of Scalia were both keenly felt.
Justice Anthony Kennedy continued to frustrate conservatives with his votes and opinions in high profile cases. Kennedy joined the court in 1988 as another Reagan appointee. But he has often been a swing vote, and in June he voted to strike down parts of an anti-abortion law and also wrote the decision allowing the use of race as a factor in college admissions. Kennedy had also been a focal point at the end of the last court term, when he wrote the decision legalizing same-sex marriage nationwide. Kennedy will soon be 80, but has given no evidence he is considering retirement. His pivotal positioning between left and right has made him the deciding vote so often that some call this "the Kennedy Court."
President Obama lost what may have been his last big Supreme Court battle in office. The Democratic president has fared better in cases before the high court than might have been expected, largely because Chief Justice John Roberts has sided with the White House twice on major challenges to Obamacare. But Obama's executive action deferring deportations for up to five million people in the country illegally was shelved when the Court deadlocked 4-4 on a challenge brought by Texas and other states. Obama had previously deferred deportation for millions of residents brought to the country illegally when they were children. That "dreamers" program is still in effect, but Obama's attempt to broaden the protected category of family members was struck down in a federal district court in Texas in 2014. That judge's ruling, since affirmed by a federal appeals court, froze the president's action and remains in effect. But the Court is expected to revisit the issue when it has a full complement of justices.
It is not clear when the Scalia vacancy will be filled. To date, Senate Republicans have refused to consider Obama's nomination of Merrick Garland to succeed Scalia. They say the next president should name Scalia's successor, and the voters should have a chance to weigh in first. Unless the Senate relents — which it might after the election — the seat will remain vacant into the new year. A new president would be able to nominate someone after Inauguration Day (Jan. 20) but it would be weeks or months before the Senate held hearings or debated or voted. So the next court term could well be short-handed throughout. That has led the justices to accept fewer cases and avoid putting major issues on the docket for 2016-2017.
The Court's liberal bloc held, with the four Democratic appointees generally together on major issues. This was especially empowering on a short-handed court, as four votes guaranteed no worse than a tie. In some cases, this protected lower court rulings or older precedents the liberal bloc supported (as in the case of public union dues). But even where the 4-4 tie left in place rulings the liberals would have preferred to overturn, it was not a 5-4 decision setting a new and long-lasting national precedent. There were liberal defections on some criminal cases, as when Justice Stephen Breyer sided with the majority to allow evidence from an unconstitutional arrest to be used against the arrestee, who was found to have an outstanding warrant. (Strieff).
Several major cases were decided unanimously or with a single dissenting vote. Chief Justice John Roberts dislikes the image of a divided court, which tends to dilute the court's authority. In this term, the justices were unanimous in vacating the conviction of former Virginia governor Robert McDonnell and in upholding the "one person one vote" principle and existing precedent in political apportionment (Evenwel). The court also agreed without dissent to kick the issue of contraception coverage under Obamacare back to lower courts (Zubik). Two other cases on the list below were decided with just one dissenting vote, cast by Justice Clarence Thomas in a jury-bias case and Justice Samuel Alito in a death penalty case.
Here is a rundown on the 14 cases NPR paid the most attention to this year:
1. Abortion: Whole Woman's Health v. Hellerstedt
Dissenters: Justices John Roberts (Chief), Samuel Alito and Clarence Thomas
In the most sweeping abortion decision in nearly 25 years, the Court struck down two provisions of a Texas abortion law, declaring them unconstitutional. The Texas law HB2 — which State Sen. Wendy Davis famously filibustered in her pink tennis shoes — required abortion providers to have admitting privileges at a nearby hospital, and it required the clinics to comply with several hospital-level standards. While the law was purportedly enacted to protect the health and safety of women, the Court majority, led by Justice Stephen Breyer, found to the contrary, arguing that the law "provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so."
When the Texas law came into effect, it cut the number of abortion facilities in half, from about 40 to about 20, requiring women to travel further distances to get an abortion. Reproductive rights advocates rejoiced in the result, whole pro-choice activists lamented and scratched their heads at Justice Kennedy's vote, cast with the Court's liberal stalwarts. As for laws similar to HB2 in other states, if they include the same provisions nixed here, "they're dead."
2. Affirmative Action: Fisher v. University of Texas
Dissenters: Justices Samuel Alito, John Roberts (Chief), and Clarence Thomas, Recused: Justice Elena Kagan
The high court upheld affirmative action in college admissions in a landmark decision affirming that that race can be used as a factor to promote campus diversity. Writing for the Court, Justice Kennedy said that, "Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission." However, he noted, race is "but a factor of a factor of a factor," or just a piece of the admissions pie. Confounding court observers, this is the first time Justice Kennedy has voted to uphold a race-conscious program.
This was Fisher's second trip to the Supreme Court. The litigation stretches back to 2008, when Abigail Fisher, a white prospective student, sued UT, claiming that the school's university program disadvantaged her. Her case was brought by Edward Blum, an activist and litigant known for challenging race-based policies. While they were disappointed by the Court's decision, Blum and other opponents of race-conscious programs find a silver lining in cases pending in federal district courts. One accuses Harvard of using an illegal racial quota against Asian-American applicants, and a similar suit challenges the University of North Carolina-Chapel Hill for using racial preferences in the consideration of candidates. Both lawsuits are brought by Students for Fair Admissions, Inc., a nonprofit advocacy group representing students who are rejected from major colleges, headed by Blum.
3. Immigration: United States v. Texas
The justices deadlocked on President Obama's program to give temporary work permits to as many as five million undocumented immigrants whose children are American citizens, or are otherwise in the country legally. The 4-to-4 tie is effectively a "non-decision," meaning that the lower court ruling that invalidated the program remains, at least for now. While this vote killed the Obama program, a future president may decide to revive it.
The nine-word, one-page decision comes as a big blow to immigrant rights advocates, as work authorizations will be revoked for millions, effective immediately. Opponents of the executive action applauded the opinion, believing that Obama overstepped the bounds of presidential power into lawmaking. Regardless, the issue will be front-and-center in the heated race for the White House.
4. Unions: Friedrichs v. California Teachers Association
In a victory for organized labor, a split Supreme Court effectively ruled that public employees who are not union members may be required to pay "fair-share" fees for the union's collective bargaining activities. This upheld an earlier high court ruling of a generation ago allowing such fees.
Anti-union activists brought the case in California — where 325,000 teachers statewide are unionized across 1,000 school districts — arguing that the fees impose an unconstitutional subsidy that violates their First Amendment rights of free speech and association. As NPR reported when the case was decided, only nine percent of the teachers in the 1,000 districts have not joined the union, but because the law requires the union contract to cover them, they must pay to cover the cost of negotiating the basic contractual benefits they reap, such as wages and leave policies. Non-members do not have to pay for union lobbying or political activities.
Although Friedrichs in effect upheld an older precedent, the issue remains a political lightning rod, galvanizing both union proponents and opponents. And the 4-4 tie leaves the door open to a future challenge before a full nine-justice Court.
5. Contraception: Zubik v. Burwell
In a unanimous ruling, the Supreme Court announced that it would not rule on a challenge to contraception coverage under Obamacare, kicking the case back to the lower courts to strike a compromise. Sidestepping the constitutional question of whether Obamacare's contraceptive mandate substantially interfered with some the religious rights of some groups, the Court sent the government and faith-based organizations back to hash out a plan that accommodated "religious exercise while at the same time ensuring that women covered by their health plans received full and equal health coverage, including contraceptive coverage."
As NPR reported in May, the case concerned an accommodation offered to religious organizations, such as schools and hospitals, which object to providing their workers with insurance coverage for contraception. While the Affordable Care Act does not require religiously affiliated employers to provide contraceptives to their employees, it does mandate that they inform the government of their objection to the contraceptive coverage. That provider would then pay for the coverage.
The faith-based organizations challenging the government argued that providing the compulsory notice violated their religious beliefs, making them complicit in sinful conduct.
In a rare move for the Court, the justice's "decision not to decide" sought to mediate — rather than adjudicate — the dispute, proposing that the government may arrange to provide coverage to employees without requiring notice or action from the organizations. A resolution of this nature would likely require new federal regulations.
6. Voting Rights: Evenwel v. Abbott
Concurrence: Justices Clarence Thomas and Samuel Alito, voting with the majority, but for different reasoning
In a unanimous opinion, the Supreme Court held that states may draw their legislative districts based on total population, instead of the number of eligible voters. Writing for the Court, Justice Ruth Bader Ginsburg upheld the "one person, one vote" bedrock principle of the American political system, citing constitutional history, the Court's decisions and longstanding practice.
The Court had long said that electoral districts must have roughly equal populations, but this is the first time that it affirmatively stated that this meant the same number of people, as opposed to eligible voters only.
The ruling largely affirmed earlier precedent and the status quo. Counting all people in an electoral district boosts the political power of areas with large numbers of inhabitants who cannot legally vote, including non-citizen immigrants, undocumented immigrants and children.
The decision came as a setback to conservative activists, who brought the challenge in Texas, and the Project on Fair Representation, the right-wing group led by Edward Blum that successfully challenged a key provision of the Voting Rights Act in 2013.
7. Juvenile Justice: Montgomery v. Louisiana
Dissenters: Justices Antonin Scalia, Clarence Thomas and Samuel Alito
The Supreme Court offered reprieve to as many as 2,000 people serving mandatory prison terms of life without parole for homicides they committed as minors. This decision expands an earlier 2012 ruling, in which the justices banned lifelong sentences for juvenile murderers.
In an uncommon move, the Court held that the 2012 ban must be applied retroactively, meaning that hundreds of inmates sentenced to automatic life terms for crimes they committed in their youth may have a chance for early release. The ruling encourages states not to find a new sentence to replace the ones struck down, but rather to consider granting parole, or release from behind bars, conditional on future behavior.
8. Capital Punishment:Hurst v. Florida
Dissenter: Justice Samuel Alito
In an 8 to 1 vote, the U.S. Supreme Court in January struck down part of Florida's capital punishment system, casting doubt on the status of the state's nearly 400 people on death row.
The Florida law allowed non-unanimous juries in capital cases to recommend death sentences or life in prison without parole, but it left final sentencing to a judge, who is charged with finding facts and independently weighing both aggravating and mitigating factors before entering a sentence of life or death. Judges can and do disregard the jury's recommendation, called an "advisory sentence." As NPR reported in January, since Florida's death penalty law was enacted in 1972, judges have ignored the jury's advisories some 300 times, imposing either the harsher penalty of death or the lesser penalty of life.
Writing for the Court majority, Justice Sotomayor declared the state's procedure unconstitutional, saying said that the Sixth Amendment right to a jury trial "requires a jury and not a judge to find each fact necessary to impose a sentence of death."
"A jury's mere recommendation is not enough," she wrote.
9. Jury Selection: Foster v. Chatman
Dissenter: Justice Clarence Thomas
The Court declared that Georgia prosecutors unconstitutionally and deliberately expelled blacks from the jury in a capital case, leaving an all-white panel to determine the destiny of a black defendant accused of killing a white woman.
Evidence of racial discrimination came in the form of incriminating prosecutor's documents, including a jury list with each black prospective juror highlighted in green with "B" printed next to it, alongside a legend showing that highlighting "represents Blacks."
While this case was widely seen as an opportunity for the justices to call out blatant prosecutorial misconduct, the Court announced no clear rules, and proponents of criminal justice reform are not holding their breath. For now, former Justice Potter Stewart's famous definition of obscenity will be taken to apply to racial discrimination in jury selection: "I know it when I see it."
10. Police Stops: Utah v. Strieiff
Dissenters: Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan
The Supreme Court ruled in June that police who illegally stop a person on the street for no stated reason can check for an outstanding warrant, and if they find one, they can conduct a search and use evidence they find to prosecute.
As NPR reported in June, the high court has long held that when law enforcement officials illegally stop or search someone without at least minimum reasonable suspicion, any incriminating evidence they find cannot be used in court. But there are exceptions to this rule, and in this case the Court carved out a new and big one, giving police far greater power to search people who were stopped without cause.
The decision came in the case of Edward Strieff who was stopped after exiting a house that was under police watch, based on an anonymous tip that it was a site of drug activity. Though narcotics detective Douglas Fackrell later admitted he had no reason to believe Strieff had done anything wrong, he demanded Streiff's identification, and detained him while calling a police dispatcher to see if there were any outstanding warrants against Strieff. When the dispatcher told Fackrell about his traffic violation, the officer arrested and searched Streiff, finding methamphetamines.
The Court reasoned that evidence seized from an unconstitutional stop was admissible, because there was a valid, pre-existing warrant for arrest, and because the discovery of the warrant weakened the connection between the stop and the evidence.
In a barn-burning dissent, Justice Sotomayor said that the decision will allow police — as in this case — to stop someone on a mere "whim or hunch" and then leverage that stop to conduct a search, if the officer gets lucky and the person they stop has an outstanding warrant. She scoffed at the majority's statement that there was nothing systematic about this stop.
"We must not pretend that the countless people who are routinely targeted by police are 'isolated,'" she said, citing to state and federal databases, showing that there are more than 7.8 million outstanding warrants, the vast majority of which are for minor violations.
11. Public Corruption: McDonnell v. United States
In a unanimous decision, the Supreme Court threw out the bribery convictions of Bob McDonnell, a former Republican governor of Virginia, contending that the government used an excessively overbroad definition of an "official act" of government in the corruption case it brought against him. McDonnell was convicted of leveraging the power of his political office to help Jonnie Williams, a businessman who showered the governor with loans, vacations and luxury products in excess of $175,000.
The gifts themselves were legal, and the question before the court was whether they were part of an unethical bargain in which McDonnell used his public position to help Williams.
Despite calling McDonnell's acceptance of the gifts "distasteful," Chief Justice Roberts argued that arranging meetings, talking with other officials, or hosting events about Antabloc, Williams' tobacco-related nutritional supplement, does not — without more — rise to the level of an "official act," because McDonnell took no action or decision in exchange for the gifts.
"Our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns," he wrote for the Court. "It is instead with the broader legal implications of the Government's boundless interpretation of the federal bribery statute. A more limited interpretation of the term 'official act' leaves ample room for prosecuting corruption."
This decision is widely viewed as making it harder to convict politicians on corruption charges, and the verdict comes as good news for public officials, like New Jersey Sen. Robert Menenedez, a Democrat, who is awaiting an appeals court ruling in a corruption case.
12.Political Speech: Heffernan v. City of Paterson
Dissent: Justices Clarence Thomas and Samuel Alito
In April, the U.S. Supreme Court ruled that if an employer demotes an employee for his or her political activity, that employee can challenge the demotion on First Amendment grounds, even if the employer's actions are based on a factual mistake about the employee's behavior.
As NPR reported, the case was brought by Jeffrey Heffernan, a 20-year-old veteran of the Paterson, N.J. police force, who was promoted to detective in 2005. Later, during the 2006 mayoral campaign, someone stole a yard sign from his mother's front lawn, and she asked Heffernan for a replacement. She supported the mayor's opponent.
When he was off-duty, Heffernan went to pick up the sign for her at the challenger's campaign office, where he was spotted holding the sign and speaking with campaign staff. The police chief's office caught wind of the incident, and assumed — incorrectly — that Heffernan was supporting the mayor's opponent. Upon returning home, he got a call that he was downgraded from his plum assignment in the police chief's office to the walking squad.
Writing for the six-justice majority, Justice Breyer sided with Heffernan, holding that the central issue is the government's motive in demoting an employee for expressing political views that it may disagree with, so it doesn't matter whether the motive is based on facts or a mistake.
"The constitutional harm," he concluded, "is the same."
13. Judicial Ethics: Williams v. Pennsylvania
Dissenters: Chief Justice John Roberts, Samuel Alito and Clarence Thomas
For the first time, the Supreme Court ruled that judges must recuse themselves from reviewing cases in which they had a prior significant role. By a vote of 5 to 3, the high court in June decided that a Pennsylvania judge's personal involvement as a prosecutor in an earlier case presented an impermissible risk of actual bias, depriving the defendant of a fair hearing and denying the due process of law guaranteed by the constitution.
The decision came in the case of Terrance Williams — a victim of beatings in his youth and sexual abuse from neighbors and older men — who was convicted in the brutal killing of a church deacon. The district attorney of Philadelphia at the time was Ronald Castille, who personally authorized seeking the death penalty in prosecuting Williams.
Later, while campaigning for a seat on the state Supreme Court, Castille declared that he had secured 45 death sentences as DA, including that of Williams.
As NPR reported in June, a state judge held an evidentiary hearing of the case and set aside the death sentence on grounds of prosecutorial misconduct, concluding that the DA's office hid mitigating evidence that the deacon had sexually molested Williams. The state appealed to the Pennsylvania Supreme Court, where Castille was serving as chief justice. Despite a motion from the defense to disqualify himself, Castille refused to step off the case. The court reinstated Williams's death penalty by a unanimous vote.
In June, the Supreme Court threw out that decision, giving Williams a shot at a new trial. Justice Kennedy, writing for the majority, announced that "an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator." Castille, he concluded, could not be a neutral arbiter as both Williams's prosecutor and his judge.
14. Guns: Voisine v. United States
Dissenters: Justices Clarence Thomas and Sonia Sotomayor
The Court ruled that reckless domestic assaults constitute a "misdemeanor crime of domestic violence" that trigger restrictions on gun ownership. Per examples provided by Justice Elena Kagan, if someone engages in risky behavior — such as throwing a plate at a wall near a spouse, or slamming a door in the face of girlfriend or boyfriend close behind — that person is subject to the federal ban on firearms possession. Women's rights, domestic violence, and gun control advocacy groups hailed the verdict as a victory, while opponents regarded the ruling as an unjustified, even unconstitutional, limitation on the Second Amendment right to bear arms.