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Despite some high-profile liberal wins, why the Supreme Court hasn’t shifted

From legalizing gay marriage to upholding the Affordable Care Act, the Supreme Court has just finished up a momentous term. Jeffrey Brown speaks to Marcia Coyle of The National Law Journal, Joan Biskupic of Reuters and Amy Howe of SCOTUSblog.com about the high-profile liberal victories this term, the colorful rhetoric used in justices’ dissents and what big cases to expect next year.

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  • JUDY WOODRUFF:

    So, the case on the health care law, with Secretary Burwell named as a defendant, was, of course, just one decision in a dramatic and, some believe, historic Supreme Court session.

    That session started last October, and it ended this week. In all, the high court heard 67 cases. Many of the most significant rulings came out in just the past seven days. And some of the decisions showed surprise splits among the justices.

    Jeffrey Brown looks at what we learned from and about the court.

  • JEFFREY BROWN:

    The court’s 2015 session took on a big and broad landscape, free speech, the rights of pregnant workers, housing discrimination, the use of lethal injection, and, of course, the fate of Obamacare, and the definition of marriage itself.

    We take our own big and broad look with three of the country’s top Supreme Court watchers, Joan Biskupic, legal affairs editor for Reuters and author of biographies of Justices Scalia and Sotomayor, Amy Howe, editor of SCOTUSblog, and, of course, our own regular contributor Marcia Coyle of “The National Law Journal,” author of the book “The Roberts Court.”

    Welcome to you all.

    Joan, you start us off.

    Was there a big theme that you saw emerge from this term?

  • JOAN BISKUPIC, Reuters:

    Well, you know, we always try to isolate the courts for the one term.

    But the court never sits still to just say, OK, just judge us by this term. So we have to step back a little bit. Of course, we had the upholding for the second time of President Obama’s Affordable Care Act, which was big for so many of your viewers. We had this fundamental right to same-sex marriage declared.

    And those two sort of gave the court a little bit of liberal identification, but the truth is that this is still pretty much of a conservative court. They also upheld the lethal injection nationwide for death penalty. So I would say that we saw several things, but mostly what it comes down to is, it depends on the case, it depends on Anthony Kennedy, our traditional swing vote justice.

    And this time, he did go more with the liberals. And for the chief himself, we saw him going in both directions, but still being very consistent for himself.

  • JEFFREY BROWN:

    OK, Amy, pick up on that. The chief, the key players, what do you see?

  • AMY HOWE, SCOTUSblog.com:

    Well, I think it was interesting, because it’s certainly true that the four liberal justices were in the majority in a lot of the important cases this term, including same-sex marriage, including Obamacare, housing discrimination.

    But I wouldn’t look at this as a term in which the law necessarily moved to the left, that these were actually liberal victories, as much as they were the liberals staving off efforts by the right to move the law to the right. And so same-sex marriage, undoubtedly, that was a decision that moved the law to the left.

    Until last Friday, there was no nationwide right to same-sex marriage. Now there is. But when you look at a lot of the other big cases, whether you’re talking about Obamacare, housing discrimination, a case involving whether or not Congress can order interest the executive branch to put Israel on the passport of U.S. citizens who were born in Jerusalem, these are all cases in which all that happened really was that the law stayed the same.

  • JEFFREY BROWN:

    Status quo.

  • AMY HOWE:

    Yes.

  • JEFFREY BROWN:

    Marcia, you have, of course, worked us through, walked it through play by play throughout the term. Put a bigger hat on here.

    Let me show a couple of graphics that we have to show some of the alliances. So, the Affordable Care Act, here’s the 6-3 decision in that. And then we will put up the gay marriage case, and you can see the shifts. What do you see in terms of the alliances that took place this term?

  • MARCIA COYLE, The National Law Journal:

    Well, I think the alliances are what distinguished a lot of these cases.

    You saw movement from justices on the right over to the left, and they were the reason that we had the victories in the same-sex marriage case, health care as well. I think we learned a lot about the court from this particular term. We learned a lot about the differences among the justices on the right and how they interpret the Constitution and how they interpret federal laws.

  • JEFFREY BROWN:

    You mean the right as a bloc itself? It was interesting to watch.

  • MARCIA COYLE:

    Yes.

    I think we — as we have said in the past, these justices on the left and the right are not monolithic blocs at all. And we saw in many of the big cases this term that the justices on the right don’t march in lockstep when it comes to interpreting the Constitution.

    We saw, for example, in same-sex marriage that Justice Kennedy has a broader conception of individual — individual liberty that is protected by the 14th Amendment than his — the colleagues to the right of him. And we saw in the health care case that the chief justice interprets statutes differently from Justice Scalia.

  • JEFFREY BROWN:

    So, Joan, can we talk about a — we talk about a Roberts court, right? But we’re saying here that that has meanings that change around.

  • JOAN BISKUPIC:

    It does.

    And the chief himself was in the majority less this term than he has been in past terms. And that’s another reason to remember that you judge a term by the particular cases that are up there for those nine months. And next year, we’re going to have so many other different kinds of cases that, frankly, at this point might play more to the justices on the right wing.

    But it’s Roberts court in name. We informally give it that. In terms of winners and losers, we probably should say it’s the Kennedy court, as we have said for many, many years. But just to pick up with what Marcia said about the justices on the left hanging together, Justice Ginsburg has a view that she will assign an opinion, she will write up an opinion, and they will sign it. Her colleagues will sign it.

    Once you’re — if you’re in the dissent and you’re on the right wing, they’re going to naturally splinter even further than they already are. There is a lot of difference between Clarence Thomas, who is on the far right, and Anthony Kennedy, who is also on the right, much more of a difference than among at all those four justices on the liberal side.

  • JEFFREY BROWN:

    I want to ask.

    I will start with you on this, Amy Howe, the question of the rhetoric, because it’s something we all watch and you’re all there in the court and reading the decisions. There’s a lot of strong rhetoric this term, right? This is Glossip vs. Gross, the capital execution case, right?

    So, we have Justice Scalia referring to some words by Justice Breyer as gobbledygook. Scalia is always good for…

    (CROSSTALK)

    (LAUGHTER)

  • JEFFREY BROWN:

    Right.

    Was this unusual?

  • AMY HOWE:

    It did seem a little bit unusual. Every term, by the end of the term — because, frequently, especially the last few years, that’s when a lot of the high-profile cases have been coming down

    And so those are the cases on which the justices are more likely to be closely divided. They’re tired of each other. They’re ready for summer vacation.

  • JEFFREY BROWN:

    They’re normal people, like the rest of us.

    (CROSSTALK)

  • AMY HOWE:

    They’re tired. They’re tired, and they’re tired of each other, because they’re working so hard at the end of June.

    But this session, when you had Justice Scalia in the same-sex marriage case saying that he would rather hide his head in a bag than sign on to an opinion that started the way that Justice Kennedy started his opinion in the same-sex marriage case, that’s really kind of remarkable.

    And so I think there is a couple of things going on. I think that the conservatives this term were frustrated that they were on the losing side in some of these cases, particularly maybe the Obamacare, ACA subsidies case, that they probably expected to win.

    And it seemed, when I looked back at the rhetoric in some of the dissents, the rhetoric was particularly strong on the part of justices like Justices Scalia, Thomas and Alito, when it was directed at majority opinions, for example, in the same-sex marriage case, in the Obamacare case, that were written by conservatives.

    It’s one thing if you’re Justice Scalia and you think Justice Ginsburg has written an end-driven opinion with no grounding in legal doctrine or anything like that. We kind of expect that from her, is the thinking on Justice Scalia’s part.

    But it’s another thing when you have got Justice Kennedy or the chief justice changing sides in a case that he regards as fundamentally important.

  • JEFFREY BROWN:

    What about, Marcia, now looking ahead? And Joan referred to some of these cases. There are some big cases coming.

  • MARCIA COYLE:

    Yes.

  • JEFFREY BROWN:

    I mean, there’s always big ones, but there’s big ones that could shift our whole perception again. Right?

  • MARCIA COYLE:

    There are.

    Already, the court has on its docket for next term a major case involving unions and agency shop fees that non-union members pay in order for the union to represent them during collective bargaining. There, it seems, sentiment on the court to find that they’re unconstitutional under the First Amendment.

    The court also has, once again, taken affirmative action in higher education, a case…

  • JEFFREY BROWN:

    Which has colleges worried again.

  • MARCIA COYLE:

    Absolutely. And it’s the second time for this particular case that they’re going to be looking at it.

    The court has a political case involving the meaning of one person, one vote, after all these years, in redistricting, and teeing up we’re seeing coming now, because there have been a slew of emergency requests for stays in lower court cases involving abortion clinics, voting rights. And we may also see next term a challenge to President Obama’s executive action on immigration.

    So, it could be, as Joan said, an extremely different term.

  • JEFFREY BROWN:

    Just a very brief last word on that? You see some real challenges?

  • JOAN BISKUPIC:

    Yes. I think next year at this time, we could all be sitting around saying, what a swing to the right it was.

    And I will just mention one thing that the chief himself has said at this time of year. It’s a very good thing we all get a break from each other.

    (LAUGHTER)

  • JEFFREY BROWN:

    All right, on that — not that I want to take a break from the three of you, but we will end there.

    Joan Biskupic, Amy Howe, Marcia Coyle, thanks very much.

  • AMY HOWE:

    Thank you.

  • MARCIA COYLE:

    Thanks, Jeff.

  • JOAN BISKUPIC:

    Thanks, Jeff.

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