Posted Jan 07, 2016 08:30 am CST
2015 was an amazing year in the United States Supreme Court. As the year comes to a close, I cannot resist the temptation to look back and present my “awards” for what happened in the court this year.
In October 2014-15, the liberal justices were in the majority more than any term in recent memory, and likely the most since the end of the Warren Court in 1969. The liberal justices were in the majority in most of the criminal law and criminal procedure decisions, all the First Amendment cases, all the civil rights cases and all of the separation of powers cases. This is reflected in Justice Stephen Breyer having been the justice most often in the majority, in percent of the cases, and tying with Justice Anthony Kennedy for the justice most often in the majority in 5-4 decisions.
In part, this is the result of the voting pattern of Justice Kennedy. Last year was the tenth term with John Roberts as chief justice. In the first nine years of the Roberts court, Justice Kennedy voted with the conservatives about 70 percent of the time in ideologically divided 5-4 decisions. But last term, there were 14 ideologically divided 5-4 rulings, and Justice Kennedy voted with the liberals in nine, and the conservatives in only five of the cases. There also was great cohesiveness among the liberal justices. The court issued 19 5-4 decisions, with Justices Ginsburg, Breyer, Sotomayor, and Kagan voting together in 16 of them.
But this should not be seen as an indication that the Roberts court is generally moving to the left. The decisions in any term are so much a product of the cases on that docket. Also, in many of the cases, the court’s majority rejected efforts to move the law in a dramatically more conservative direction. The failure to do that is not the same as moving the law in a liberal direction.
Obergefell v. Hodges and King v. Burwell. In Obergefell, the Court ruled 5-4 that laws prohibiting same sex marriage infringe the right to marry and deny equal protection to gays and lesbians. The result is that gays and lesbians now can marry in all 50 states, the District of Columbia and all territories of the United States. This is the culmination of a stunningly rapid change in the law and in public attitudes. Massachusetts in 2003 was the first state to allow gay and lesbian couples to marry. Within a dozen years, marriage equality now exists everywhere in the country.
In King v. Burwell, the court held that all who qualify economically may receive tax credits from the federal government if they purchase insurance from a health care exchange, regardless of whether it is an exchange created by a state government or the federal government. If the court had come to the opposite conclusion and accepted the challengers’ argument that tax credits are available only to those who purchase insurance on one of the 16 state created exchanges, this almost certainly would have collapsed the 34 exchanges created by the federal government, and likely all of the health care exchanges. It is estimated that there are between 6.5 and 10 million people who have obtained health insurance through these tax credits. Countless lives will be saved and suffering prevented through this access to health care.
In Johnson v. United States, court declared unconstitutional on vagueness grounds a provision of the federal Armed Career Criminal Act. Although decided less than six months ago, on June 26, already the federal courts of appeals have split over whether it applies retroactively, and it is being used to challenge many other federal laws.
The Armed Career Criminal Act provides that if a person is convicted of a crime involving the use of a firearm, and the individual has three or more earlier convictions for a “serious drug offense” or a “violent felony,” the prison term is a minimum of 15 years and a maximum of life. The Act defines violent felony as “any crime punishable by imprisonment for a term exceeding one year … that—”(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
In United States v. Taylor (1990), the Supreme Court held that each of these clauses is to be treated as a separate category, and for the Armed Career Criminal Act to apply a person’s crime, it must fit into one of the categories. The last category—“or otherwise involves conduct that presents a serious potential risk of physical injury to another”—is known as the residual clause. In Johnson v. United States, the Supreme Court, in an 8-1 decision, declared that this provision was unconstitutionally vague.
This already has led to a great deal of litigation in the federal courts. The federal courts are split on the question of whether Johnson applies retroactively. The First and Seventh Circuits have found that Johnson applies retroactively, while the Tenth and Eleventh Circuits have held that it does not.
Also, there is the question of what other federal and state laws are unconstitutional on vagueness grounds because they use language similar to that of the residual clause in the Armed Career Criminal Act. Many federal statutes use a similar definition of “crime of violence” as the definition of “violent felony” in the Armed Career Criminal Act, though their residual clauses are slightly different. Likewise, many provisions of the federal sentencing guidelines use language similar to that in the Armed Career Criminal Act.
All of these provisions are now vulnerable to vagueness challenges in light of Johnson. Recently, in DiMaya v. Lynch, the 9th Circuit Court of Appeals applied Johnson and held that the Immigration and Nationality Act’s definition of “aggravated felony” was unconstitutionally vague.
In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the court held that disparate-impact claims are cognizable under the Fair Housing Act. This was the third time the Supreme Court granted review on this issue, even though every circuit had allowed disparate impact liability for decades. The prior two cases settled as civil rights advocates feared a Supreme Court decision and successfully pressured to have them resolved without allowing the court to issue decisions.
The case is important for fair housing litigation. It is very difficult to prove discriminatory intent; rarely will decision-makers express a racist motive. Also, it is likely that some justices would like to hold that all disparate impact liability is unconstitutional. They believe that disparate impact liability causes decision-makers to be “color conscious” in decision-making, while they see the Constitution as requiring that decision-makers be “color blind.” The majority in Texas Department of Housing and Community Affairs reaffirmed the existence of disparate impact liability.
Justice Scalia’s dissent in Obergefell v. Hodges and Justice Scalia’s concurring opinion in Glossip v. Gross. In June, in his dissent in Obergefell v. Hodges, Justice Scalia said that Justice Anthony Kennedy’s majority opinion was “as pretentious as its content is egotistic,” and said that its “showy profundities are often profoundly incoherent.” In a footnote, he wrote, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.” He likened the majority opinion to “mystical aphorisms of the fortune cookie.”
In Glossip v. Gross, which upheld the three-drug protocol used in lethal injections, Justice Stephen Breyer wrote a dissenting opinion urging the court to ask for briefing and arguments as to whether capital punishment is cruel and unusual punishment in violation of the Eighth Amendment. Justice Scalia wrote a scathing concurring opinion responding to Justice Breyer. He referred to Justice Breyer’s opinion as “gobbledy-gook,” and said that his argument was “nonsense.” Justice Scalia concluded his concurrence by stating: “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”
Justice Scalia’s statements in these opinions are not legal arguments or responses to them. They are mean and inappropriate in judicial opinions. They send a terrible message to law students and lawyers about how to write and talk to one another.
2016 promises to be no less important as the court, over the next six months, will decide cases about affirmative action by colleges and universities, the First Amendment rights of non-union members, the proper method of voting districting and the ability of states to enact laws that have the purpose and effect of closing facilities where abortions are performed. It is a truly remarkable time in the Supreme Court.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).