Chemerinsky: The 5 most important stories about the Supreme Court in 2014
The end of the year inevitably brings lists of the best and the most important in every area, as well as the strong temptation to look ahead. So what were the most important stories about the U.S. Supreme Court in 2014 in terms of their impact on the law and society, and what should we look ahead to in 2015?
1. No vacancies. For long-term significance, the most important story may well turn out to be what didn’t happen: there were no vacancies on the Supreme Court. In the spring of 2014, a number of commentators, including me, suggested that Justice Ruth Bader Ginsburg should resign at the end of June 2014 when the court finished its term. At that time, it was foreseeable that the Republicans could take the Senate in November. President Barack Obama’s ability to pick her successor is dramatically different with a Republican Senate.
Justice Ginsburg will turn 82 in March, and it seems unlikely that she will still be on the court in January 2021 at age 88. The best way for her to ensure that someone with her values and views would take her seat would have been to step down this past summer with a Democrat in the White House and a Senate with a Democratic majority. Justice Ginsburg, though, reacted to these suggestions by saying repeatedly that she has no plans to retire. If she should leave in the last two years of the Obama presidency or when there is a Republican president, nothing that occurred in the last year will be more important for the court in the long term than her choice not to step down in 2014.
2. Unanimity. Last term, the Supreme Court decided 68 cases after briefing and oral argument; 66 percent were decided unanimously. By contrast, the term before, only 49 percent were resolved unanimously, and the year before that only 45 percent. Last term, there were only 10 5-4 decisions, compared with 23 the term before. Chief Justice John Roberts appears to have succeeded in his goal of achieving a greater consensus on the court.
To some extent, the unanimity is misleading because there were cases that were unanimous in result, but the justices were deeply divided as to the reasoning. For example, in both Noel Canning v. NLRB, which invalidated President Obama’s recess appointments to the NLRB, and McCullen v. Coakley, which struck down a Massachusetts law creating a 35-foot buffer zone around reproductive health care facilities, the court’s conclusion was unanimous, but four justices concurred in the judgment with opinions that read very much like dissents.
In some instances the court achieved unanimity by ducking the hard issues before it. In Executive Benefits v. Arkison, the court did not resolve the important issue that has split the circuits as to the authority of bankruptcy judges to issue final judgments over state law claims. The court quickly granted certiorari in another case, Wellness International Network v. Sharif, that poses the same question. No one expects the court will be unanimous when it resolves this issue.
Also it is important to remember the court was split 5-4 along familiar ideological lines when deciding the cases presenting divisive legal issues, such as the death penalty for the intellectually disabled, campaign finance restrictions, separation of church and state, and the religious rights of secular corporations.
Even with all of these caveats, the unanimity in 66 percent of all the decisions in argued cases is striking. It also included some important cases where no one expected consensus. Most notably, in Riley v. California, the court unanimously held that absent a warrant or exigent circumstances, the police cannot search the contents of a cellphone as part of a search incident to arrest. This is the most important Supreme Court decision ever concerning protection of informational privacy, particularly in the context of new technology.
Whether the unanimity is desirable is a very different question. Many assume that it is better for the court to speak in one voice. But unanimity may not be a good thing if it means decisions that avoid the hard questions or that are resolved on very narrow grounds or that hide important disagreements.
3. Intellectual property comes to the court. One of the notable statistics that seems to have gotten little attention is that there were 10 intellectual property decisions in October Term 2013. Six cases involved patent law, two involved copyright issues, and two were about trademarks. With only 68 cases, this means that about 15 percent of the docket involved this one area of law.
In part, this reflects how new technology poses difficult intellectual property issues. For example, in American Broadcasting v. Aereo, the court found a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet. In Alice Corp. v. CLS Bank, the court found that a computer program for exchanging financial obligations was a patent-ineligible abstract idea.
In part, too, the large number of patent cases reflects an increased willingness of the court to review and reverse the decisions of the U.S. Court of Appeals for the Federal Circuit. For a long time it appeared that the court was staying away from patent cases and deferring to the Federal Circuit. But no longer is this true. In fact, last term, in five patent cases the court unanimously reversed the Federal Circuit.
4. The rights of corporations continue to increase. Many have observed that the Roberts court is the most pro-business court since the mid-1930s. One manifestation of this has been its expansion of the rights of corporations, such as in Citizens United v. Federal Election Commission, decided in 2010. The most high-profile case of last term, Burwell v. Hobby Lobby, the court held that it violates the federal Religious Freedom Restoration Act to require that a close corporation provide insurance for contraceptives that violates its owners’ religious beliefs.
The court’s explanation for this could have important implications in other areas as well. The dissent argued that even if corporations are persons under the act, a corporation cannot have religious beliefs or a religious conscience. Justice Samuel A. Alito, writing for the majority, stressed that the owners of a corporation should not have to give up following their religion by choosing to incorporate their business. This is quite different from the rationale in Citizens United, which stressed that corporations have freedom of speech because we are all better off when there is more expression.
Under the reasoning of Hobby Lobby, why should owners of a business have to give up any constitutional rights by choosing to incorporate? This rationale would seem to provide a basis for extending rights such as the Fifth Amendment’s privilege against self-incrimination and the Fourth Amendment’s protection of privacy to corporations.
5. It’s still the Kennedy court. Like every term since Roberts became chief justice, Justice Anthony M. Kennedy was the justice most often in the majority. Last term, Justice Kennedy was in the majority in 95 percent of the decisions, and was the justice most often in the majority in 5-4 rulings. In the October term 2013, Justice Kennedy was in the majority in 100 percent of these divided cases.
The year ahead. We may hear as soon as Friday, Jan. 9, whether the court will again be taking up the issue of marriage equality. Among other cases, the court has before it DeBoer v. Snyder, where the Cincinnati-based 6th U.S. Circuit Court of Appeals upheld state laws prohibiting same-sex marriage. If the court grants review, that would be the most high-profile matter of the current term. This term, the court also has an important case concerning tax credits under the Affordable Care Act, King v. Burwell. It is likely that sometime this spring the court will consider petitions for certiorari of cases to be heard next fall concerning affirmative action and abortion rights.
The one safe prediction for 2015 is that when the court considers marriage equality, the Affordable Care Act, abortion, and affirmative action, a central story of the year will not be the unanimity of the Supreme Court.
Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
