Whose Term Was It? A Look Back At The Supreme Court The end of this latest Supreme Court term leaves us with questions: Is it Justice Kennedy's court or Justice Roberts'? Does pragmatism triumph over ideological purity?
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Whose Term Was It? A Look Back At The Supreme Court

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Whose Term Was It? A Look Back At The Supreme Court


Whose Term Was It? A Look Back At The Supreme Court

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This past Supreme Court term just completed bordered on epic. Day-by-day last week, the justices handed down one legal thunderbolt after another on same-sex marriage, voting rights, affirmative action. The end-of-term crash of opinions made so many headlines that other important decisions got little public notice. To take an overall look at the court term, here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: If this was the term of equality, the question is whose equality prevailed. In the same-sex marriage cases, the winners were gay and lesbian couples, and the losers were the voters and legislators who'd enacted laws barring recognition of same-sex marriage. In the voting rights case, the South, which for decades, had to clear any voting changes with federal officials, saw itself liberated, while African-American and Latino voters saw the decision as once again allowing historically hostile states to suppress their right to vote.

And in the affirmative action case, the court's compromise allowed everyone to claim victory and fight another day. In terms of leadership and clout on the court, whose term was it? Was the dominant figure Justice Anthony Kennedy, who voted in the majority in nearly every major case, often writing the majority opinion? Or was it Chief Justice John Roberts? After all, he engineered more unanimous rulings than usual and wrote the opinion gutting the Voting Rights Act, a law that he'd long opposed. For many court watchers, like Cornell Law School's Michael Dorf, the liberal victory in the same-sex marriage cases outweighed everything else.

MICHAEL DORF: Its chief cultural significance is in deciding cases that involve rights of the minority against claims of the majority.

TOTENBERG: But the same-sex marriage cases were not both slam dunks in one direction. In the so-called DOMA case, the court, by a 5-to-4 vote, struck down the federal law that had barred federal benefits and recognition for same-sex couples married in states where such unions are legal.

Justice Kennedy, in his majority opinion, wrote expansively about the rights of gay couples to the same personhood and dignity accorded to legally married heterosexual couples. He was joined by the court's four liberal justices. But in the case testing California's ban on gay marriage, a different court majority declined to intervene, leaving in place a lower court decision that invalidated the ban.

Writing for the court majority, Chief Justice Roberts said that the proponents of the ban on gay marriage could not take the place of state officials who had refused to appeal the lower court ruling. Joining Roberts in that decision were conservative Justice Antonin Scalia and three of the court's liberal justices: Ginsburg, Breyer and Kagan.

MICHAEL MCCONNELL: Well, I think it's the liberal justices who held back, not Justice Kennedy.

TOTENBERG: Michael McConnell is director of the Stanford Law School Constitution Center.

MCCONNELL: Ginsburg, Kagan and Breyer believed that it was not good for the country for the Supreme Court to strike down the traditional definition of marriage nationwide.

TOTENBERG: And so - for now at least - the question of whether gay couples everywhere in the country have the right to marry remains unresolved. Still, with California now added to the list of states where gay marriage is legal, the number is now at 13 states, states that account for nearly a third of the nation's population.

The decision gutting a key portion of the Voting Rights Act was also 5-to-4, but this time along more traditional lines, with Justice Kennedy joining the court's most conservative four justices. Chief Justice Roberts wrote the decision, upholding the challenge to the law brought by Shelby County, Alabama.

The act's formula for which states are covered, he said, was based on old data, and therefore treated the Southern states unfairly and unequally. Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring. Harvard Law professor Charles Fried, who served as the Reagan administration's advocate in the Supreme Court, said he thought the court's decision was just wrong.

CHARLES FRIED: Because we're not there yet. We're not there yet, and the facts on the ground in Shelby County itself showed that.

TOTENBERG: Stanford's McConnell says the decision's reasoning is just made up.

MCCONNELL: There's no requirement in the Constitution treating all states the same. It might be an attractive principle, but it doesn't seem to be in the Constitution.

TOTENBERG: John McGinnis of Northwestern University Law School agrees, suggesting that the court's conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post-Civil War amendments.

JOHN MCGINNIS: And I'm sorry to say, I think this opinion was as singular a failure as I've seen in the history of the Supreme Court. [POST-BROADCAST CORRECTION: McGinnis was speaking about the court's decision in the Defense of Marriage Act case, not the Voting Rights Act case.]

TOTENBERG: Overall, nearly a third of this term's cases were by a narrow 5-to-4 majority, and in most of those, the split was along liberal-conservative lines. Liberal critics see many of these decisions as closing the courthouse door to the little guy. Georgetown Law professor David Cole.

DAVID COLE: If you look at the full run of the court's decisions this term, what you see is a court that made it harder or virtually impossible for consumers, victims of surveillance and human rights victims to bring lawsuits in federal courts, made it much more difficult for victims of employment discrimination to get relief.

TOTENBERG: In cases that pitted consumers or small businesses against big business and employees claiming discrimination against their bosses, the conservative five-justice majority sided quite consistently with corporate interests. Indeed, the Chamber of Commerce prevailed in all seven cases in which it filed briefs this term. But Michael Carvin, who represents business interests in the Supreme Court, says all the court did was accurately read the statutory language that Congress wrote.

MICHAEL CARVIN: Every time the plaintiff's bar doesn't get a successful victory against an employer or a company, it claims that people are closing the courthouse door. That's not what's going on here.

TOTENBERG: It's fair to note, however, that in a wide variety of opinions, the court did restrict legal avenues for those who want to challenge either business or government actions. The one exception: cases involving property rights. Property owners won all three of the cases they brought against government entities this term. In criminal cases, however, the five-justice conservative majority fell apart in some significant cases, mainly because Justice Scalia defected. Tom Goldstein is publisher of the leading Supreme Court blog, known as SCOTUSblog.

TOM GOLDSTEIN: It was remarkable how Justice Scalia played against what some regard as his type on big constitutional cases involving the rights of criminal defendants. He was their leading voice, sometimes in the majority, or sometimes in dissent.

TOTENBERG: The conservative Scalia and the liberal Justice Ruth Bader Ginsburg were the most vocal dissenters from the bench. On one day in June, Ginsburg twice delivered oral dissents from the bench. As she lamented the court's rulings making it more difficult to bring employment discrimination cases, the conservative Justice Samuel Alito, sitting immediately to her left, rolled his eyes. Nina Totenberg, NPR News, Washington.

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