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Why Justice Kennedy’s final Supreme Court term is consequential

The Supreme Court wrapped up its term with a bang. Justices handed down blockbuster rulings on the president’s travel ban, racial gerrymandering, public employee unions and abortions -- each decided along ideological lines. Judy Woodruff gets analysis from Marcia Coyle of The National Law Journal and Amy Howe of SCOTUSblog.

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  • Judy Woodruff:

    The Supreme Court wrapped up its term with a bang this week. Justices handed down blockbuster rulings on the president's travel ban, on racial gerrymandering, public employee unions, and abortions. Each case was decided along ideological lines.

    For more, I'm here with Marcia Coyle, chief Washington correspondent for "The National Law Journal." And Amy Howe, she covers the high court for the Web sites Howe on the Court and SCOTUSblog.

    And we welcome both of you back to the program.

    So, Marcia, let me start with you.

    Everybody agrees consequential term. What made it so?

  • Marcia Coyle:

    Certainly, the types of cases that the court agreed to hear and decide.

    As you mentioned, there was a whole range, from President Trump's travel ban, to union fair share fees, partisan gerrymandering. The list went on and on. And, of course, at the end, the most consequential event of all was Justice Kennedy's retirement, announced retirement.

  • Judy Woodruff:

    And I want to ask you about that in just a moment.

    But, Amy Howe, let's talk about something we haven't had a chance to address on the program yet, and that is the ruling yesterday having — that affects labor unions. Why is that one something that matters, should matter to all of us?

  • Amy Howe:

    This is a sleeper case, I think, of the term, and was even more overshadowed by Justice Kennedy's retirement the same day that it was handed down.

    But this is a case by which the Supreme Court by a vote of 5-4 ruled that if you're a state or local government employee and you're represented by a union, you can no longer be required to pay to cover the costs of collective bargaining. It's called either a fair share fee or an agency fee, depending on your point of view.

    And this is really significant. And these fees can be as much as $500 a year, as they were in this case. And I think what unions really fear is that, if people don't have to pay the fees, they will decide not to. And the unions will still have to provide the same services, because they're still representing everyone in this workplace, with less money, which could then lead to sort of a spiral, as more and more people decide to get out.

    And it was significant for another reason, which is that it overruled a 41-year-old decision that had upheld these fees back in 1977. And it's a big deal in and of itself, but as we look to Justice Kennedy's retirement, there's a legal doctrine called stare decisis, that you don't just willy-nilly overrule an old case.

    You have to have a good reason for doing so. And you can see a battle in the opinions that may be looking at further battles down the line.

  • Judy Woodruff:

    Did you see — what did you see, Marcia, in other decisions handed down this term that tell you anything about stare decisis, about adhering to precedent?

  • Marcia Coyle:

    Well, there was one other huge case that has a lot of ramifications for the economy, for the e-commerce market.

    And that was whether states would be allowed to require online retailers to collect sales taxes. And the court had an earlier precedent — in fact, two of them — in which it said, no, you can't, unless that online or out-of-state retailer has a physical presence within the state's borders.

    Well, the court decided that we're in the e-commerce age, and that physical presence test just cannot apply anymore. It's out of date. It was initially used because we had catalog sales. So, the court overruled, basically, two precedents that had the physical presence test.

    And that also created a strong dissent. And, actually, the dissent this time was led by Chief Justice Roberts. It was one of those strange alliances. He aligned with some of the more liberal members of the court, saying that this was really something Congress ought to deal with because it has such huge ramifications for the economy.

    For the states, it's possibly a billion-dollar windfall.

  • Judy Woodruff:

    And, Amy, let's talk for a moment about alignment on the court. What did we see by the end of this term and by the decisions that were handed down in terms of how threat justices — we know there are reliable conservatives, reliable liberals on the court.

    But how did we see them line up on the most important cases?

  • Amy Howe:

    This is — we often talk about Justice Anthony Kennedy being the swing justice. And in many of the cases for which he will be remembered, he joined with the court's more liberal members, on abortion, on same-sex marriage.

    But this was a term in which in — there were 15 5-4 cases, and he did not join the liberal justices on any of them. The overwhelming majority of those 15 cases were the five more conservative justices, the cases in which — there was a case involving cell phone privacy in which Roberts joined with the more liberal justices.

    And there was an immigration case that was held over after the death of Justice Scalia. Justice Gorsuch, just as we imagined Justice Scalia would have, joined with the four more liberal justices in that case.

  • Judy Woodruff:

    And then, of course, the travel ban, Marcia.

  • Marcia Coyle:

    Right.

    And I would just add one thing, too. I think one of the overriding themes certainly is the court's five-justice conservative majority dominated the most significant and closely divided cases of the term, not only because Justice Kennedy didn't move to the left at all, but also because Justice Gorsuch, in the union fee case, as you recall in 2016, that issue was before the court.

    They divided 4-4 after the death of Justice Scalia. It was Justice Gorsuch who made the difference this time.

  • Judy Woodruff:

    Well, I want to ask you what — after watching him on the court for this term, what are we to make of him and how he makes decisions and the difference he's going to make going forward?

  • Amy Howe:

    Well, going into the term, you know, he'd only sat through one set of cases and I think issued one opinion last term, because he joined the court very late.

    And going into the new term, there were some murmurings that perhaps some of the justices thought he might be getting a little bit too big for his britches, for lack of a better term.

    But of the 15 5-4 cases that I mentioned, he actually wrote five of them, including a major case on arbitration that was argued on the very first day of the term. And the senior justice in the majority is the one who decides who's going to write those cases.

    So there were rumors of discontent, but you certainly didn't see them in the opinion assignment process.

  • Judy Woodruff:

    What did you see from…

    (CROSSTALK)

  • Marcia Coyle:

    Well, the other thing I would say about him is, during his confirmation process, he said that he was an originalist and a textualist.

    And I would say that, this term, he really hewed very close to that. Whenever he had an opportunity to use an originalist approach to interpreting the Constitution or the textualist approach to interpreting a statute, he did that.

    And sometimes his approach on originalism didn't take him in the same direction as the court's staunchest originalist, Clarence Thomas. So it is very interesting to see — it's going to be very interesting where he goes.

    (CROSSTALK)

  • Judy Woodruff:

    OK. We have just a few seconds left.

    But, in that time, Amy, the difference that it will make having what everybody assumes will be a more conservative justice replacing Justice Kennedy.

  • Amy Howe:

    I think on a lot of the cases that people care a lot about, some of the ones that I mentioned, same-sex marriage, abortion, affirmative action, it could make a very big difference, because they will have a solid 5-vote majority.

    I think that conservative groups are going to be very aggressive in bringing cases to the court. And the conservative justices are going to feel pretty confident taking them on, not having to worry about what Justice Anthony Kennedy thinks.

  • Marcia Coyle:

    And I would watch — keep an eye on Chief Justice John Roberts.

    I don't think he is going to become a swing vote, like Justice Kennedy was, but I think if there is any sort of moderation of how far and how fast the court goes to the right, he's the one that will do that, just because he is more of a minimalist, and also because he cares very much about the institution, and that it not be perceived as a wholly partisan body in our structure of government.

  • Judy Woodruff:

    Marcia Coyle, Amy Howe, we thank you both. So many eyes on the court.

    Thank you.

  • Marcia Coyle:

    Pleasure, Judy.

  • Amy Howe:

    Thank you.

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