A very different court

By Erwin Chemerinsky

U. S. Supreme Court -- Collection of the Supreme Court of the United States.

The most important lesson from the just completed term of the U.S. Supreme Court is that there are no longer five votes for a conservative result. From 1971, when President Richard M. Nixon had his fourth nominee confirmed for the court, until Justice Antonin Scalia died on Feb. 13, there were at least five justices appointed by a Republican president and who were ideologically conservative. But no longer.

The most important cases of this October 2015 term fit a clear pattern. In some, Justice Anthony Kennedy voted with the conservative justices – John Roberts, Clarence Thomas, and Samuel Alito – and the court then deadlocked 4-4. Or Justice Kennedy joined with justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan and there was a liberal result. But rarely could the conservative justices gain a fifth vote for their position.

A deadlocked court

When the court splits 4-4, the lower court ruling is affirmed without opinion and without there being any Supreme Court precedent. Sometimes this upheld a liberal result and sometimes a conservative one, depending on what the lower court decided. For example, the court’s tie in Friedrichs v. California Teachers Association means that the government can continue to require that employees pay the share of the union dues that go to support the collective bargaining activities of the union. This is enormously important for unions and their role in the political process. By contrast, in United States v. Texas, the court’s 4-4 deadlock means that the lower court’s nationwide preliminary injunction against President Barack Obama’s executive action on immigration – Deferred Action for Parents of Americans – remains in place.

Flowers are placed in front of the U.S. Supreme Court on Feb. 14, 2016, in Washington after the sudden death of Justice Antonin Scalia. Brendan Smialowski/AFP/Getty Images

There is no doubt that both of these cases would have been 5-4 decisions in favor of a conservative result if Justice Scalia were still on the court. Likewise with Justice Scalia, the conservatives would have had a majority in Zubik v. Burwell to strike down a provision that requires that insurance providers for religious institutions, like a Catholic university or Little Sisters of the Poor, provide contraceptive coverage for women employees. But without a fifth vote, the court obviously was deadlocked 4-4 and sent the case back to the lower courts for consideration of a compromise proposed by the justices.

Kennedy joins the liberals

In some of the most high-profile cases, Justice Kennedy joined the liberals. In Whole Women’s Health Center v. Hellerstedt, the court, 5-3, declared unconstitutional a Texas law imposing significant restrictions on abortion providers. The Texas statute required that any doctor performing an abortion have admitting privileges at a hospital within 30 miles and that all places where abortions are performed have surgical quality facilities even if no surgical abortions are performed there. This would have closed 75 to 80 percent of all the facilities in Texas where abortions are provided. The court, though, concluded that there is no evidence that these restrictions protect women’s health and held that they are an unconstitutional undue burden on women’s right to abortion.

Most importantly, Justice Breyer’s majority opinion stressed that it is for the judiciary to independently evaluate whether a law limiting abortions is justified by a health benefit to women that outweighs its burden in access to abortions. Since 2010, state governments have adopted over 290 new laws restricting access to abortion and the court’s decision means that a great many of these statutes are likely unconstitutional.

In Fisher v. University of Texas, Austin, the court, in a 4-3 decision with Justice Kennedy writing for the majority (Justice Kagan was recused), upheld the University of Texas’ affirmative action program. A contrary decision could have put in jeopardy affirmative action programs throughout the country. Although the court reaffirmed the existing law, the tone of Justice Kennedy’s opinion signaled a greater willingness than previously of the court to allow affirmative action programs. The court declared: “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.”

A college or university wishing to engage in affirmative action must prove a compelling interest, such as the need for diversity on its campus, and it must show there is no race neutral way to achieve its objective. The school must continually reexamine its affirmative action program to be sure it continues to be necessary. But these are manageable tasks.

This case, though, will not directly affect California’s public colleges and universities because of Proposition 209, which prohibits government entities in the state from discriminating or giving preferences based on race or sex in education, contracting, or employment.

A conservative outcome

The only major decision where the conservatives prevailed in an ideologically divided case was in Utah v. Streiff, which held that evidence gained after an illegal police stop is admissible if the police learn of an outstanding warrant for the person’s arrest. Justice Breyer joined with Justices Thomas, Roberts, Kennedy, and Alito to create the majority.

The police illegally stopped Edward Strieff outside a home where drug dealing was suspected. The officer asked his name and did a search for outstanding warrants. A warrant was found and Strieff was arrested based on it. A search of Strieff then was done incident to his arrest, and he was found to be in possession of illegal drugs.

The issue before the Supreme Court was whether the evidence had to be excluded from the trial because it was the direct result of the police officer’s violating the Fourth Amendment and illegally stopping Strieff. Long ago, the Supreme Court held that the products of police violations cannot be used as evidence by prosecutors because they are “the fruit of the poisonous tree.” Otherwise, police would have too great an incentive to violate the law.

But the Supreme Court, in a 5-3 decision, held that the evidence was admissible against Strieff. Justice Clarence Thomas wrote the opinion for the court and said that once the police officer discovered that there was an outstanding warrant on Strieff, it made the resulting search as part of his arrest permissible. The court said that the outstanding arrest warrant for Strieff's arrest was a critical intervening circumstance that broke the causal chain between the unconstitutional stop and the search.

Justices Sotomayor and Kagan wrote dissenting opinions that lamented that the decision gives the police an incentive to stop people in violation of the Fourth Amendment knowing that if there is an outstanding warrant, a search can be done and any evidence gained will be admissible. Justice Sotomayor wrote: “[T]his case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

A good year for criminal defendants

There also were a number of instances in which the court ruled in favor of criminal defendants in cases that were not closely divided. For example, in Montgomery v. Louisiana, the court held, 6-3, that its earlier decision in Miller v. Alabama applies retroactively. In Miller, the court concluded that it is cruel and unusual punishment in violation of the Eighth Amendment to have a mandatory sentence of life in prison for a homicide committed by a juvenile. The effect of Montgomey is that all who received such life sentences before 2012, when Miller was decided, can take advantage of that ruling.

Similarly, in Welch v. United States, the court held, 7-1, that its decision a term earlier in Johnson v. United States – which declared unconstitutional on vagueness grounds the “residual clause” of the Armed Career Criminal Act – applies retroactively. The Armed Career Criminal Act provides that if a person is convicted of a crime involving the use of a firearm and the individual has three or more earlier convictions for a “serious drug of­fense” or a “violent felony,” the prison term is a minimum of 15 years and a maximum of life. The act defines violent felony as: “any crime punishable by imprisonment for a term exceeding one year ... that ‘(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.’ ”

In Johnson, the court declared the last clause – “otherwise involves conduct that presents a serious potential risk of physical injury to another” – to be unconstitutionally vague. In Welch, the court said that this applies retroactively and benefits the thousands of people sentenced under this clause before Johnson.

In Foster v. Chatman, the court strongly reaffirmed that it violates the Constitution for lawyers to exclude prospective jurors based on race. Timothy Foster was prosecuted for murder in Georgia. There were four prospective African-American jurors and the prosecutor used peremptory challenges to exclude each of them. Foster’s lawyer objected, but the trial judge found that the prosecutor had offered sufficient explanations apart from race and overruled the objection. Foster was convicted and sentenced to death.

Many years later, Foster’s lawyer filed a request under the Georgia Open Records Act, seeking access to the state’s file from his 1987 trial. The file contained stunning evidence of race discrimination in the exercise of peremptory challenges. One document was a list of prospective jurors with the names of the black prospective jurors highlighted in bright green. A legend in the upper right corner of the document indicated that the green highlighting “represents Blacks.” The letter “B” also appeared next to each black prospective juror’s name. They were ranked, “B#1,” “B#2,” and “B#3,” respectively, indicating the prosecutor’s preferences among them. Another document in the file was handwritten and titled, “definite NO’s,” it listed six names and included all of the prospective African-American jurors.

Even with this evidence, the Georgia courts found no constitutional violation. But the Supreme Court in a 7-1 decision reversed it, with Chief Justice John Roberts writing for the court and only Justice Clarence Thomas dissenting. The court concluded that Foster’s constitutional rights were violated because the “prosecutors were motivated in substantial part by race when they struck” prospective jurors.

Finally, in Birchfield v. North Dakota, the court struck a compromise of sorts and held that a state may require that a driver consent to breath tests, but not blood tests, when being investigated for driving under the influence. Justice Alito wrote for the court and said that breath tests are a minimal intrusion of privacy, involving no more than that a person blow into a tube. By contrast, blood tests require piercing the skin and are a much greater intrusion to privacy.

The future

Since 1960, 78 is the average age at which a Supreme Court justice has left the bench. There will be three justices 78 or older when the next president is inaugurated in 2017: Justices Ginsburg, Kennedy and Breyer. Especially if it is a two-term president, it seems likely that he or she will have several picks for the high court. Also, of course, it is uncertain as to who will replace Justice Scalia. For liberals and conservatives, Democrats and Republicans, one of the most important issues in the coming election is who will fill these vacancies on the Supreme Court.

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