Supreme Court Blurred Ideological Line in Momentous Term

By Kenneth Jost
Supreme Court Editor, CQ Press

The Supreme Court ended its 2011-2012 term by defying conventional wisdom and its own predominantly conservative orientation with rulings that gave President Obama important victories on health care and immigration. Even before the final week, however, the court’s record for the term gave liberals as much to like in some respects as conservatives, if not more.

Liberal justices were in the majority in all but one of the cases selected by CQ Press as the 10 most important of the term. The exception was a 5-4 ruling split along the usual conservative-liberal fault line that permits jails to strip search minor offenders. (See table below.)

Civil liberties and criminal defense groups are counting victories in half a dozen significant rulings that strengthened constitutional protections in police investigations and criminal trials and potentially lowered sentences for some offenders. Among those decisions was the 5-4 ruling in the court’s final week that barred states from imposing mandatory life imprisonment without possibility of parole on juvenile murderers.

First Amendment advocates counted a win with the 6-3 ruling on the court’s final decision day that struck down the federal Stolen Valor Act, which had made it a crime to lie about having received the Medal of Honor. Earlier, the court had blocked the Federal Communications Commission (FCC) from sanctioning the Fox and ABC television networks for programs that included brief vulgarities or adult nudity.

The court did not change its ideological spots completely. In its final week, the court summarily struck down a Montana law banning independent campaign expenditures by corporations. The 5-4 decision turned aside a plea by liberal justices to reconsider the 2010 decision in Citizens United v. Federal Election Commission that gave corporations and unions a First Amendment right to spend money in political campaigns.

The term’s litigation-related rulings also continued the court’s general trend under Chief Justice John G. Roberts Jr. of narrowing remedies for plaintiffs for injuries from violations of federal or state laws. Two five-vote decisions divided along conservative-liberal lines prohibited damage suits against state governments for violating the federal Family and Medical Leave Act and barred recovery for emotional or mental distress for violations of the confidentiality provisions of the federal Privacy Act. 

Roberts, a Republican now completing his seventh court term as chief justice, cast the decisive vote in the two most important rulings of the court’s final week. His vote with the four liberal justices to save Obama’s health-care reform law elated Democrats and left many Republicans and conservatives spitting mad. He joined three liberals and Justice Anthony M. Kennedy, the more usual swing vote on the court, in striking down on federal preemption grounds major parts of Arizona’s immigration enforcement law known as S.B. 1070.

The health-care and immigration decisions were qualified victories for Democrats and liberals. Roberts’ pivotal opinion in the health care ruling, National Federation of Independent Business v. Sebelius, rejected the administration’s principal argument for upholding the individual health insurance mandate; he voted with the liberals, however, to uphold the provision not as Commerce Clause regulation but as a tax. In the immigration decision, Arizona v. United States, the court unanimously upheld the so-called “Show Me Your Papers” provision requiring police to verify a suspect’s immigration status if they reasonably believe someone stopped or arrested is in the country illegally.

The criminal law rulings also included some significant qualifications, but overall they represented substantial gains for suspects and defendants. The 5-4 ruling on juvenile murderers stopped short of a categorical ban on life-without-parole sentences. Writing for the majority, however, Justice Elena Kagan suggested that such sentences should rarely be imposed.

Kennedy provided the critical fifth vote for the liberal bloc in the juvenile sentencing case and in three other closely divided criminal law rulings. Two of the decisions strengthened the right-to-counsel requirement for defendants during plea bargaining; the third reduced prison terms for crack cocaine defendants sentenced after Congress lowered penalties in 2010. Roberts and fellow conservatives Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented.

The justices divided 6-3 across ideological lines in a late June ruling that requires juries, not judges, to make factual findings needed to raise criminal fines. Roberts was in the majority in the ruling, which set aside an $18 million fine for a corporate polluter; the dissenters were Kennedy, Alito and liberal Stephen G. Breyer.

Earlier, the justices were unanimous in a decision in a major drug case that limits the ability of police to use GPS tracking to surveil suspects.  The eventual impact is unclear, however, because the justices divided 5-4 across ideological lines on the legal basis for the ruling.

The impact of the ruling on the FCC indecency policy is also unclear. The decision rejected the FCC’s appeal to reinstate the sanctions against the two networks but without ruling on the constitutionality of the policy. Justice Ruth Bader Ginsburg urged the FCC to rethink the policy, but in a separate case Roberts later said the FCC’s power to censure networks for “fleeting expletives” or “fleeting images” of nudity is “clear.”

Similarly, the 6-3 ruling striking down the Stolen Valor Act left it up to Congress to consider rewriting a narrower law. Kennedy wrote the main opinion, but in a significant alignment for future First Amendment cases Breyer and Kagan joined on narrower grounds.

In a significant freedom-of-religion case, the court unanimously ruled that churches or other religious organizations are exempt from anti-discrimination laws in the hiring of clergy or anyone who performs ministerial functions. The decision turned aside a disability-rights case brought by a teacher at a religious school in Minnesota.

Paralleling Roberts’ occasional breaks with the conservatives, the court’s newest justices – Kagan and Sonia Sotomayor – parted company with the senior liberals Ginsburg and Breyer in some cases. But several observers remarked on the surprising number of unanimous decisions, some in significant cases. As one example, the court unanimously allowed property owners to challenge an Environmental Protection Agency compliance order in court before enforcement.

Table 1-1: Major Cases: U.S. Supreme Court, 2011—2012 Term

CQ Press each term selects the major cases for the Supreme Court’s term. The selection is based on such factors as the rulings' practical impact; their significance as legal precedent; the degree of division on the Court; and the level of attention among interest groups, experts, and news media.
Name of Case
National Federation of Independent Business v. Sebelius
Upholds Affordable Care Act; narrows enforcement of Medicaid expansion
Arizona v. United States
Strikes three parts of state immigration law; allows immigration status checks (8-0)
Miller v. Alabama
Bars mandatory life-without-parole sentence for juvenile murderers
Lafler v. Cooper; Missouri v. Frye
Strengthens effective-assistance-of-counsel requirement at plea bargaining stage
United States v. Jones
Defines extended GPS tracking of suspect’s vehicle as search for Fourth Amendment purposes
Southern Union Co. v. United States
Requires jury finding beyond reasonable doubt of facts needed to raise criminal fine
United States v. Alvarez
Strikes down federal Stolen Valor Act on free-speech grounds
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC
Exempts religious organizations from anti-discrimination laws in hiring of clergy
Florence v. Board of Chosen Freeholders of Burlington County
Allows jails to strip-search minor offenders
FCC v. Fox Television Stations, Inc.
Sets aside FCC order against TV networks for fleeting expletives, adult nudity
Here are some other especially noteworthy cases: American Tradition Partnership, Inc. v. Bullock (strikes down state law banning independent campaign expenditures by corporations); Coleman v. Court of Appeals of Maryland (bars damage suits against state government for violating Family and Medical Leave Act); Dorsey v. United States (applies lower sentences for crack cocaine to anyone sentenced after change in law); FAA v. Cooper (bars damages for mental/emotional distress for violations of federal Privacy Act); Knox v. Service Employees International Union (limits public sector union imposition of special assessment or agency shop fee increase); National Meat Ass’n v. Harris (strikes down California slaughterhouse-regulation law on preemption grounds); Perry v. New Hampshire (limits rules against use of suggestive eyewitness identification in criminal trials); Sackett v. EPA (allows pre-enforcement challenge of EPA compliance order); Williams v. Illinois (eases rule on DNA profile evidence in criminal trials).