U.S. Supreme Court: A year unlike any in recent memory

By Erwin Chemerinsky

It is 40 years since I started law school, and I cannot remember a Supreme Court term with so many liberal victories in major cases. What explains it and what is it likely to mean for the future?

U.S. Supreme Court

The easiest explanation is that Anthony Kennedy voted with the liberal justices much more often than in any prior term. There were 13 cases that split 5-4 along ideological lines, and in eight of them Justice Kennedy joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. In five of them, Justice Kennedy joined Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. By contrast, over the first nine years of the Roberts Court, Justice Kennedy joined the conservatives about 70 percent of the time when the court was ideologically split 5-4.

But that explanation does not tell the whole story. There were a few cases where Justice Kennedy dissented, but the liberal justices were still in the majority by attracting one or more of the other justices to join them. Thus another key factor explaining the decisions was the cohesion of the four most liberal justices – Ginsburg, Breyer, Sotomayor and Kagan. They voted together in 15 of the 19 5-4 decisions. Therefore, they needed to attract only one additional vote to get a majority. One reflection of this is that for the first time the justice most often in the majority was Breyer. He voted in the majority 92 percent of the time. He also was the justice most often in the majority in 5-4 decisions.

Does this mean that the Roberts Court has moved to the left? Not at all. It always is dangerous to generalize from a single term. A year ago, commentary on the court focused on the unanimity of the term: 66 percent of the cases were decided unanimously. This year, only 34 percent of the cases decided after briefing and oral argument were unanimous.  

Next year, the court will be deciding cases about affirmative action, voting rights, First Amendment rights of non-union members and, most likely, abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative justices.

Marriage equality

The most high profile case of the term was Obergefell v. Hodges, where the Supreme Court ruled, 5-4, that laws prohibiting same sex marriage violate the due process and equal protection clauses of the Fourteenth Amendment. Justice Kennedy wrote for the court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. 

Kennedy

Justice Kennedy explained that the court long has protected the right to marry as a fundamental right. It is safeguarded under both the due process and equal protection clauses. The court examined the precedents concerning the right to marry and concluded, that “[t]his analysis compels the conclusion that same-sex couples may exercise the right to marry.”

The court said that there is no difference between same-sex and opposite-sex couples when it comes to the importance of marriage for couples, for their children and for society. The court rejected that a tradition of discrimination justifies continued discrimination. The court also rejected the argument that marriage is about procreation and explained that same-sex couples will procreate whether or not they can marry and their children should have the benefit of married parents.

Each of the four dissenting justices – Chief Justice Roberts and Justices Scalia, Thomas and Alito – wrote dissenting opinions. Each of the dissenting justices accused the majority of undue judicial activism. Each of the dissenting justices argued that the issue of marriage equality should be left to the political process to resolve. Each emphasized the long tradition of marriage being only for opposite sex couples.  

The decision is truly historic and means that same-sex couples now can marry everywhere in the United States.

Health care

In King v. Burwell, the court ruled that those who qualify economically and purchase health insurance from exchanges created by the federal government can receive tax credits.

The goal of the Affordable Care Act was to make sure that almost all Americans have health care coverage. Prior to the Affordable Care Act, approximately 50 million Americans were without health care coverage. 

To make health insurance affordable, the act provides a federal tax credit to low- and moderate-income Americans to offset the cost of insurance policies. The act provides the credit to individuals who enroll in a health plan “through an Exchange established by the State under Section 1311.” But the act also provides that if a state does not “elect” to create an exchange, the federal government “shall establish and operate such exchange within the State.”

Only 16 states have established exchanges to this point. In the other 34 states, the exchanges are created by the federal government pursuant to the act. The challengers argued that the statute provides for tax credits only for those who purchase insurance from a state established exchange.

The court ruled, 6-3, in favor of the United States and held that those purchasing insurance from exchanges, whether created by the federal government or the states, are entitled to tax credits. Chief Justice Roberts wrote for the majority and acknowledged the ambiguity in the statutory language. But he said that ruling for the challengers would collapse the health care exchanges and that Congress surely could not have intended to give states the ability to undermine the Affordable Care Act by refusing to create exchanges. Chief Justice Roberts concluded his majority opinion by declaring: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” It is estimated that as many as 8 million people will continue to have health insurance because of this decision. 

Criminal law and procedure

In Glossip v. Gross, the court ruled, 5-4, that the protocol used for lethal injection likely does not constitute cruel and unusual punishment in violation of the Eighth Amendment. In one of the major victories for the conservative justices, Justice Alito wrote for the court, joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas. The court held that death-row inmates failed to establish a likelihood of success on the merits of their claim that the use of midazolam, a sedative, as the first drug in Oklahoma’s lethal injection protocol violates the Eighth Amendment because it fails to render a person insensate to pain. The court stressed that a person challenging a method of execution has the burden to show that there are better, more humane alternatives.

Justice Breyer, in a dissenting opinion, urged the court to reconsider the constitutionality of the death penalty and presented the arguments as to why he believes that it is unconstitutional. Justice Scalia wrote a concurring opinion sharply disagreeing, defending the death penalty, and attacking Justice Breyer’s reasoning.

In Ohio v. Clark, the court unanimously ruled that it did not violate the Confrontation Clause of the Eighth Amendment when the statements of a 3-year-old boy were introduced against a criminal defendant without the boy testifying. In response to questions from his teacher, the boy had said that he had been beaten by his mother’s boyfriend, Darius Clark. In Crawford v. Washington (2004), the court held that prosecutors cannot use testimonial statements from unavailable witnesses even if they are reliable.

But in Ohio v. Clark the court ruled that the statements were not testimonial because they were not made with the primary purpose of creating evidence for prosecution. This is an important clarification of what it means for a statement to be “testimonial:” It must have been made with the primary purpose of creating evidence for the prosecution.

There were three Fourth Amendment cases. In Heien v. North Carolina, the court held that the Fourth Amendment is not violated when a police officer makes a reasonable mistake of law to justify a traffic stop. In Rodriguez v. United States, the court ruled that a police officer may not extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification. The duration of a traffic stop is limited to that needed to carry out the functions of the stop: writing out a ticket, checking the validity of the license and license plates and seeing if there are any outstanding warrants for the driver or passengers.

Finally, in City of Los Angeles v. Patel, the court declared unconstitutional Los Angeles Municipal Code Section 41.49, which requires hotel operators to record and keep specific information about their guests on the premises for a 90-day period and to make those records available to "any officer of the Los Angeles Police Department for inspection" on demand. The court said that it is facially unconstitutional because it fails to provide the operators with an opportunity for precompliance review.

Freedom of speech

One of the most basic principles of the First Amendment is that the government cannot engage in content-based restrictions on speech unless strict scrutiny is met – that is, unless the law is necessary to achieve a compelling government purpose. The court applied this in Reed v. Town of Gilbert.

Gilbert, Arizona, has an ordinance that limits outdoor signs that can be displayed. It prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs. For example, the ordinance was permissive as to political signs, but very restrictive as to signs giving directions to events. A challenge was brought by the Good News Community Church (Church) and its pastor, Clyde Reed, whose Sunday church services are held at various temporary locations in and near the town. The church relies on signs to let people know where worship services are being held.

The court unanimously declared this ordinance unconstitutional. The Gilbert ordinance is content-based, in that it treats different types of signs – such as ideological or political signs – differently. The court noted that, “The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign.” The court, in an opinion by Justice Thomas, said that because the law was content-based it had to meet strict scrutiny – that is, be narrowly tailored to achieving a compelling purpose. The court said the ordinance failed this test. The court, and Justice Alito in a concurring opinion, stressed that content-neutral sign regulations would be allowed.

Although the strict scrutiny used for content-based laws is an exacting test, it is not always fatal. In Williams-Yulee v. Florida State Bar, the court found that a law was content-based, but nonetheless upheld it. Florida, like 30 other states, has a law prohibiting candidates for elected judicial office from personally soliciting or receiving funds. In a 5-4 decision, with Chief Justice Roberts writing the opinion for the court that was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, the court upheld this as constitutional. The court began by declaring: “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” In upholding the Florida law, the court opened the door to allowing other regulation of speech in judicial elections.

Although the government cannot engage in content-based regulation of speech unless it meets strict scrutiny, the court has held that this does not apply when the government itself is the speaker. This was the basis for the court’s holding in Walker v. Texas Division, Sons of Confederate Veterans. Texas allows non-profit groups to have the State of Texas produce license plates with particular messages. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag, and the board of the Department of Motor Vehicles rejected this.

The court held that the Texas Department of Motor Vehicles Board did not violate the First Amendment in rejecting the Confederate flag license plate. Justice Breyer wrote the majority opinion that was joined by Justices Thomas, Ginsburg, Sotomayor and Kagan, and ruled that license plates are government speech, and when the government is the speaker it cannot violate the speech clause of the First Amendment.

Conclusion

Summarizing just these cases is enough to explain why it was a historic year in the Supreme Court and how much its decisions will affect so many people, often in the most important and intimate aspects of their lives.

Chemerinsky is a distinguished professor of law, a Raymond Pryke Professor of First Amendment Law and dean at the University of California Irvine School of Law