STEVE INSKEEP, HOST:
It's Monday. and it's MORNING EDITION from NPR News. I'm Steve Inskeep.
RENEE MONTAGNE, HOST:
And I'm Renee Montagne. The Supreme Court wrapped up its term last week, and as it does most years, the court saved its more controversial decisions for the very end.
INSKEEP: Deep divisions among the nine justices were laid bare over ruling on contraception. The court was split 5-4 this term when it came to issues of campaign finance, public prayer and labor unions.
MONTAGNE: But on some high-profile issues, the court achieved a rare degree of unanimity. NPR legal affairs correspondent Nina Totenberg takes a look at the court term that just ended with the help of a lot of people who write about the court and appear before.
NEAL KATYAL: There is something really remarkable that happened this year at the Supreme Court.
NINA TOTENBERG, BYLINE: Former Obama administration solicitor general Neal Katyal.
KATYAL: In roughly two-thirds of the cases, they agreed unanimously with one another, and you have to go back to the year 1940 to find that happening.
TOTENBERG: That unanimity, however, is illusory, often a technical agreement on the bottom line of a case, who won and who lost. As strange as it may seem, who won and lost is not all that important in these cases; it's the legal principle laid down by a majority that must be followed by the lower courts. And so it was that this term Justice Antonin Scalia seemed to perfect a new judicial legal format, the enraged concurrence. He wrote three of them, declaring in one, quote, "I prefer not to take part in the assembling of an apparent, but specious unanimity."
That case is illustrative. At issue was a 35-foot buffer zone to protect patients and staff from protesters at abortion clinics in Massachusetts. All nine justices agreed the buffer zone was too big because it unduly restricted the free-speech rights of the protesters, but there the agreement ended and the difference is a big deal. Five said there can be buffer zones of some smaller size. Four said, no, there could not be any buffer zones ever. The theme of what one wag called faux-nanimity, repeated itself again and again as Harvard law professor Laurence Tribe observes.
LAURENCE TRIBE: It represents a success in herding cats, but there is deep division underneath.
TOTENBERG: The one big, generally unanimous ruling was Chief Justice John Roberts' opinion for all nine justices, declaring that police may not search a person's cell phone without a warrant, even at the time of an arrest. Former Solicitor General Walter Dellinger.
WALTER DELLINGER: They all have cell phones, so they really understood this. This is one area where they could have what is called empathy.
TOTENBERG: The court's genuine unanimity on cell phones and less genuine harmony in other unanimous cases masked clear disagreement in some of the most controversial cases of the term. On campaign-finance regulations, union power and mandated contraception coverage for for-profit corporations under the Affordable Care Act, the court's conservatives, all Republican appointees, prevailed over the court's more liberal Democratic appointees. And in each of these, the conservative majority reversed decades of previous rulings or came close. Harvard law professor Charles Fried.
CHARLES FRIED: The precedent is getting a very, very hard-knock all over the place.
TOTENBERG: In the campaign-finance case, the conservative majority, reversing 40 years of Supreme Court precedent, struck down the $123,000 cap on how much individuals can donate to political parties in each election. The decision, coupled with the court's 2010 ruling striking down a long-standing ban on corporate and union spending in candidate elections, further opened the floodgates of cash pouring into campaigns. It also redefined corruption. For the first time the court said Congress can only seek to curb quid pro quo corruption, something like an outright bribe. No longer is influence-peddling deemed to be corruption.
In the union power case, the court stopped short of overruling a 1977 decision that allows public employee unions to collect so-called fair share fees from nonunion members in order to pay for negotiating a union contract that nonunion members benefit, too. But the five-justice majority invited those opposed to these fees to bring another suit to challenge what it called the courts', quote, "questionable precedent."
And in the case of contraception coverage under Obamacare, the conservative majority for the first time ruled that for-profit corporations can refuse to comply with a general government mandate because doing so would violate the corporations' asserted religious beliefs. In each of these cases, the conservative majority based its ruling on the First Amendment right of free speech or religion, and some scholars on both the left and the right see that as something of a new twist on an old story.
Today legal historians speak disparagingly of the so-called Lochner era, named after a landmark case. The era, which lasted into the mid-1930s, saw the Supreme Court in the name of property rights, consistently strike down legislation barring onerous working conditions and legislation that sought to increase the bargaining power of employees in dealing with employers. Those decisions are long gone, but some scholars now suggest they're being reborn in a new guise, the First Amendment.
AKHIL AMAR: It's a new Lochner.
TOTENBERG: Yale Law school's Akhil Amar comes from the moderate left of the legal spectrum.
AMAR: The First Amendment is increasingly becoming everyone's first resort for all sorts of claims that historically were not thought of as First Amendment claims.
TOTENBERG: By that, he means claims aimed at getting rid of campaign finance regulation, the contraception mandate and union fees. Charles Fried, who served as solicitor general in the Reagan administration, comes from the moderate right of the legal spectrum.
FRIED: Of campaign finance, a cynic could ask the famous question cui bono; who profits from this?
TOTENBERG: The answer, he says, is clearly conservative special interest groups and the Republican Party. But is that a result of conservative legal ideology or a partisan agenda?
FRIED: I would need to be a psychoanalyst, and I am not, to say whether the ideological commitment is a superstructure of the cui bono or the cui bono is just a coincidence.
TOTENBERG: Still in the contraception and union power cases and in some others this term, many liberals and moderates oddly enough breathe something of a sigh of relief. Georgetown law professor Marty Lederman.
MARTY LEDERMAN: By the end of the term, the court had stepped back from the precipice, and it had not overruled any of its major precedents.
TOTENBERG: At the same time, many conservatives gnash their teeth over the high court's failure to go all the way. Conservative Erik Jaffe practices regularly before the court.
ERIK JAFFE: It's very frustrating that they take this baby-step approach rather than just be done with the business and overall the bad precedent.
TOTENBERG: But he says smaller steps avoid unintended consequences and are probably smarter.
JAFFE: At the end of the day, they're hard questions and leaping in and a final answer on it, is only going to create more conflict when the political process really needs to work it through.
TOTENBERG: It's not entirely clear whether the conservative majority took smaller steps this term out of caution or because there was no fifth vote for that more radical course. The truth is, it's probably a bit of both. Nina Totenberg, NPR News, Washington.
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