Jeff is back with a look at the big decisions from this year.
JEFFREY BROWN: Well, there were many incremental steps, a few dramatic ones, and a number of unanimous decisions along the way, but stark divisions remained on major issues, including campaign finance, the exercise of religion, women’s access to medical care, and race.
We look back at the term now with Neal Katyal, former acting solicitor general under President Obama, now a lawyer in private practice in Washington. He argued several cases before the court this term. Erin Murphy is former law clerk to Chief Justice John Roberts, also now an attorney in Washington. She argued her first case before the high court this past October. And our own regular guide to the court, Marcia Coyle of The National Law Journal.
And, Marcia, let me start with you. Start us off here. Was there a major theme or thread that you saw this past term for the court?
MARCIA COYLE, The National Law Journal: Well, I wouldn’t say there’s one major theme. I think there are several.
I recall, when the term started, there was the potential for it to end with several blockbuster decisions, mainly because a number of conservative and libertarian organizations were asking the court to revisit or overrule some key precedents in a variety of legal areas, from campaign finance to affirmative action to securities to unions, even to a major precedent involving Indian tribes’ sovereign immunity.
But, ultimately, the court didn’t overrule those decisions and ruled narrowly. It ruled narrowly, but not insignificantly. And I think, if you look at what the court did overall, some would say this is an example — this term was an example of what John Roberts said during his confirmation hearings, that he wanted to be a minimalist judge.
His critics might say, however, that he’s playing a long game because a number of these old decisions that weren’t overruled were cut back and some are hanging by a thread or one vote.
JEFFREY BROWN: All right, well, Erin, Erin Murphy, take us into one particular area, because it did get some attention, and that’s the question of executive power.
ERIN MURPHY, Constitutional Attorney: Sure.
JEFFREY BROWN: We saw that in some of the cases. Did you see a statement being made by the court in that area?
ERIN MURPHY: I’m not sure there’s a particular statement being made by the court, but there certainly were some big executive power cases this term.
The Noel Canning case is probably the most high-profile one. And this is case concerning the scope of the president’s recess appointment power, the power to make appointments, when the Senate is not in session. And it’s an interesting case in reflecting what Marcia is taking about, because you have a unanimous court holding that the particular appointments at issue, appointments made by President Obama a few years ago, were unconstitutional.
You then have a minority of the court that would have held more broadly that a number of other — under a theory that would have called into question the constitutionality a number of other appointment that have been made. And the majority of the court declined to take that broader step that would have had much broader implications.
JEFFREY BROWN: Neal Katyal, what did — did you see any clear statements on this issue of executive power coming from this court?
NEAL KATYAL, Former Acting Solicitor General: Well, I think executive power is an area where the court was somewhat divided, at least in approach.
I think the big theme of this court, returning to the question you asked Marcia, it’s not just John Roberts’ promise at his confirmation hearings to rule minimally, but also his idea that he wanted to build consensus on the court.
And if one looks at this court, it’s striking what John Roberts and his eight colleagues accomplished this year, roughly two-thirds of the cases decided unanimously. You would have to go back all the way to 1940 to find a similar time period in which the justices so often agreed on things at the bottom line.
And, sure, there were disagreements among reasoning and so on, but this is a striking example of the chief justice and his eight colleagues saying to the country, look, I’m looking at other branches of government. They’re not working quite that well. They’re very divisive. This is an area that’s worked pretty well, that worked really well, the colleagues on both sides of the aisle at the court coming to common agreement on the bottom line.
JEFFREY BROWN: Erin Murphy, let me ask you, because you were there at the court. Does it work that way, that there’s a sort of attempt to almost — a calculated attempt to say, look, we can work together?
ERIN MURPHY: Well, I don’t know if I would use the term calculated.
But I think, as anywhere, the justices certainly try to work together, and sometimes what you see this in is, let’s find the narrow area where we can all agree. And if it’s the kind of case that can be resolved without getting into the questions that are going to be more divisive for the justices, they will try their hardest to find ways to resolve cases in those respects. And I think we did see that in a number cases this term.
JEFFREY BROWN: And yet, Marcia, we also — because you were on the program many times telling us that there were still these great divisions. We saw plenty of 5-4 cases.
MARCIA COYLE: Yes. Well, there weren’t a lot of 5-4 cases.
JEFFREY BROWN: That’s right. I shouldn’t say a lot, but some key ones.
MARCIA COYLE: Right. Exactly.
There were key ones. And there are areas that have divided the court since the beginning of the Roberts court in 2005. These justices are split ideologically and in their approach to interpreting the Constitution in areas such as campaign finance.
The Roberts court has continued a deregulation bent. It has yet to find a campaign finance regulation that it likes under the First Amendment. They’re also divided when it comes to religion. And we saw that in a case out of Greece, New York, involving prayers to open a government — a local government meeting.
And we saw a bit of it in the Hobby Lobby case yesterday that we talked about involving the Affordable Care Act. They’re also divided on racial questions. The court didn’t have a typical affirmative-action case this term, which generally asks the court whether you can use race in, say, a university’s admission policy. Instead, it had a case about whether voters could approve a state constitutional amendment barring the use of race.
And even though that case came out 6-2, we saw a real difference of opinion voiced by Justice Sotomayor on race from how the conservative majority has generally viewed race.
JEFFREY BROWN: Neal Katyal, where do you still see the big divisions on this court that come through?
NEAL KATYAL: Oh, I think that Marcia summarized them really well, race, religious, the First Amendment, abortion. There are areas where the court is, of course, divided.
Elections have consequences. And I think if we look back at the last four confirmation hearings, we saw that come out in the hearings themselves. That said, I think if we asked ourselves at each of those hearings, could we have predicted, for example, John Roberts would be the vote to uphold the health care — President Obama’s health care plan a couple years ago or that Justice Breyer would write the unanimous opinion, rebuking Justice — President Obama’s recess appointments, those two things and many others, I think, weren’t quite as predictable from the confirmation hearings.
So I think we do see the court trying to find common ground where they can. It’s a remarkable achievement that the court did this year.
JEFFREY BROWN: Same question to you, Erin Murphy, then. Where do you — are there — there still are plenty of divisions, right, the makeup of the court, for one thing, and it comes out in some of these cases.
ERIN MURPHY: Sure.
But I think part of it is there are just different approaches to understanding the Constitution in general, and those just aren’t going to go away, and I think we will always see them, no matter who the justices are on the court.
At the same time, even in some of the cases that involve divisive issues, you do sometimes see things that are not a 5-4 split. A couple of them have been mentioned here that are great examples. This year’s case of race discrimination wasn’t 5-4, and there was a First Amendment case involving abortion protesters that had a not straight-up 5-4 lineup.
So you do, even within those divisive areas, see the justices trying to reach some consensus.
JEFFREY BROWN: Well, Marcia, you wrote a book on the Roberts court.
MARCIA COYLE: I did. I did.
JEFFREY BROWN: I can plug it here now for you.
But here we are, I don’t know how many years in, but a good number of years in.
MARCIA COYLE: This was the ninth year of the Roberts court.
JEFFREY BROWN: Yes. Yes. So, where does this term kind of take it?
MARCIA COYLE: Well, I think — I believe every term’s different.
And what we saw this term may not necessarily play out again next term. But, as we have talked, there are certain things that — certain areas where the court has been consistent in terms of its division and also where it does seek out unanimity.
I remember Justice Breyer once telling me that the key to sitting around that conference table when they’re trying to hammer out these issues is to really listen, listen hard, and try to find the areas that you might be able to forge agreement. I think it’s a very interesting court. It is striving to find areas where it can agree, but it’s going to continue, as Erin said, to have these divisions in these areas — in the other areas.
NEAL KATYAL: And if I…
JEFFREY BROWN: Yes, go ahead, Neal, very briefly.
NEAL KATYAL: Yes.
I think Justice Breyer and Justice Alito both had their best terms ever on the court, Justice Alito yesterday writing two 5-4 very significant opinions, in Hobby Lobby and in the union case, Justice Breyer, as I mentioned, with the recess appointments opinion.
These are two — these are three pretty striking opinions showing justices that I think a lot of court watchers had long predicted would unfold their wings and become leaders of the court. This term, that proved right.
JEFFREY BROWN: All right, Neal Katyal, Erin Murphy, and Marcia Coyle, thank you, all three.
MARCIA COYLE: Pleasure.
ERIN MURPHY: Thank you.
NEAL KATYAL: Thank you.