SCOTUS BUILDS A DIFFERENT KIND OF WALL

(Posted June 27, 2018) Today, the Supreme Court of the United States wraps up its October 2017 Term. As you know, I generally don’t focus on that court; I keep my attention here in Virginia, primarily on the SCV and to a lesser extent the CAV and the Fourth Circuit. But there’s one irresistible dynamic of the SCOTUS calendar: Late June is usually packed with highly significant and controversial decisions. This year is no exception.

Here’s the thumbnail of the past week’s major decisions:

In Currier v. Virginia, handed down last Friday, the Court holds that a criminal defendant who consents to a severance of trials for joint criminal charges has waived Double Jeopardy protection.

In Ohio v. American Express, decided Monday, the Court rules that AmEx can contractually prohibit vendors from steering customers to other credit cards. (AmEx’s transaction fees are higher than MasterCard’s and Visa’s, so store owners lose money each time a customer whips out an AmEx card instead of a Visa.)

Also Monday, the Court approves the Texas legislature’s gerrymandered districts, in Abbott v. Perez.

Yesterday, the Court upholds the President’s travel ban in Trump v. Hawaii.

Also yesterday, in National Institute of Family and Life Advocates v. Becerra, the Court strikes down a California requirement that “crisis pregnancy centers” (it’s only in quotation marks because I had never heard that term before yesterday) must tell pregnant women about available free or low-cost abortion services.

Today, the Court decides that public-sector unions may not charge dues to nonmembers, in Janus v. American Federation of State, County, and Municipal Employees. This decision overrules a 41-year-old precedent.

A common theme runs through these decisions. In each, the decision is 5-4, and in each, the judicial lineup – who’s in the majority and who dissents – is identical. In all six appeals, the Chief Justice and Justices Kennedy, Thomas, Alito, and Gorsuch are in the majority, while Justices Ginsburg, Breyer, Sotomayor, and Kagan dissent.

It’s a poorly kept secret that there are more 9-0 votes from SCOTUS than any other result. Those sexy 5-4 rulings are a distinct minority of the Court’s outcomes; the last time they reached even 33% of the merits rulings was in OT 2006.  But those 5-4s tend to get the most ink, and it isn’t because they have a better media consultant.

To be sure, the ideological divide on the Court doesn’t hold up 100% of the time, even in ideological cases. For example, two members of the Court’s more liberal wing joined the conservatives in the Masterpiece Cakeshop decision, and the Court issued a more or less unanimous opinion (in the sense that no one dissented, though there were concurrences) in Gill v. Whitford, the Wisconsin gerrymandering case. But a careful observer cannot miss the fact that in every major decision at the very end of the term, the Red Wall held firm.

Those on the political extremes in society tend to be highly critical of the Court whenever it rules the “other” way, but are not correspondingly supportive when the ruling goes “their” way. This is true of both the far right and the far left of American political philosophy. In the recent past, for example, the far right has excoriated the “liberal, activist” Court in the wake of decisions such as National Federation of Independent Business v. Sebelius (upholding Obamacare) and Obergefell v. Hodges (holding that states must permit same-sex marriage). In doing so, they missed the point that the current Supreme Court lineup is noticeably conservative. The “fulcrum Justice,” Anthony Kennedy, cannot fairly be described as a liberal jurist, despite his occasional forays across the conventional philosophical aisle.

This week’s rulings bring added significance to the Garland/Gorsuch dynamic from 2016-17. I’ve written about that before and won’t repeat the commentary here. Today I’ll add that we have no way of knowing how a hypothetical Justice Garland would have voted in these six cases, so don’t automatically assume that all six, or even a majority of them, would have come out differently had the Senate confirmed Judge Garland in 2016. But it’s likely that at least some of them would have. Garland is a judicial moderate, while Gorsuch seems intent on elbowing Justice Thomas aside for the title of Most Conservative Justice. (Thomas was the most conservative even before Justice Scalia died.)

I’ll mention one other aspect of this matter. When Senate Majority Leader Mitch McConnell announced that the Senate would not consider any Obama nominee to replace Scalia, I believe that he permanently changed the way in which that body votes on nominees. From then on, extending into the future, I believe that no president will succeed in securing an appointment to the Supreme Court unless his party controls the Senate. McConnell was willing to stall a nominee in the year before the election, but there is no principled difference between one year and two, or even four. I foresee a future where eight-member courts – or smaller! – drag on for more than the 14 months between Scalia’s death and Gorsuch’s oath of office.

UPDATE 3:00 p.m.: As of a short time ago, the Janus ruling is now the second most important SCOTUS news of the day, by a wide margin. Justice Kennedy has notified the president of his retirement, effective July 31. Assuming that the president nominates a strongly conservative justice and Sen. McConnell shepherds that nomination quickly through to confirmation, the court’s ideological balance will likely veer sharply rightward — and remember, I regard Kennedy as a moderate conservative, not a liberal.

He is, however, one of the most powerful men in American government, because when a close ideological case comes along, he often gets to decide who wins. If things unfold as I set out above, the new “fulcrum” of the court will be Chief Justice Roberts.