U.S. Supreme Court

Chemerinsky: First impressions of this term's SCOTUS decisions were misleading

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Erwin Chemerinsky.

Correction: First impressions can be deceiving and, with the benefit of a month of hindsight after the completion of the Supreme Court term, it is apparent than many of those impressions were misleading. After the term was over, many of the initial commentaries stressed the apparent consensus that emerged on the Roberts Court in October Term 2013. A stunning 65 percent of the cases were decided unanimously, compared with 49 percent being unanimous in the term before and 43 percent being unanimous two years ago.

But on closer examination the unanimity reveals less than it might seem. In fact, many of the cases that seemed narrow in their holding are likely to have broad implications in leading to future litigation and in their social impact. Consider some of the most important cases of the term:


In some instances, the court achieved unanimity by not deciding the difficult, and likely divisive, issue presented, but instead resolving the case on narrow grounds.

In Executive Benefits v. Arkison, the court faced the question of whether bankruptcy courts can issue a final judgment over state law claims with consent of the parties. This is an issue that has split the circuits and has enormous importance for the work of bankruptcy judges, magistrate judges and federal district judges. But the Supreme Court did not decide it, instead unanimously holding that it was unnecessary to do so because there had been de novo review in the federal district court in this case. On July 1, the Supreme Court granted certiorari in Wellness International Network v. Sharif, which presents the issue left undecided in Executive Benefits v. Arkison.

In Bond v. United States, the court faced the important question of the scope of congressional power to enact laws to implement federal treaties. Carol Anne Bond was thrilled to learn that her best friend was pregnant, but then horrified to find out that her husband was the father. Bond sought to kill her best friend through a poison that could be absorbed through the skin. The friend received a minor chemical burn. Federal prosecutors charged Bond under a federal statute that had been adopted to implement the Chemical Weapons Convention Implementation Act of 1998, which criminalizes the possession or use of chemical weapons. The court avoided the constitutional question by unanimously holding that the federal law was never meant to apply to a situation like this one.


In some instances, focusing on the unanimous result obscures the deep division within the court. In NLRB v. Noel Canning, the Supreme Court unanimously ruled that President Obama’s recess appointments to the National Labor Relations Board were invalid. Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. The court said that the Senate was not in recess during this time and that there generally cannot be recess appointments for recesses less than 10 days.

Justice Antonin Scalia wrote an opinion concurring in the judgment, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito. Justice Scalia’s opinion had the tone of a dissent and strongly disagreed with the majority’s holding that presidents may use the recess appointment power for intra-session recesses and that the power is limited to vacancies that occur during those recesses.

Similarly, in McCullen v. Coakley, the court unanimously struck down a Massachusetts law creating a 35-foot buffer zone around reproductive health care facilities, but the justices sharply disagreed as to the reasoning. Chief Justice Roberts wrote for the five-person majority and held that the Massachusetts law was a content-neutral regulation of speech because its application did not depend on the subject matter or the viewpoint of the message. But the court concluded that the law was unconstitutional because it was not sufficiently narrowly tailored in its restrictions on speech on public sidewalks and other traditional public forums.

Justices Scalia (joined by Justices Kennedy and Thomas) and Justice Alito wrote opinions concurring in the judgment that strongly disagreed with the majority and would have gone much further in declaring buffer zones unconstitutional. The difference is significant because the majority expressly refused to overrule earlier decisions upholding buffer zones and made clear that narrowly tailored ones are constitutional.


I fear that focusing on the unanimous decisions lessens the attention to the 5-4 decisions, which were among the most important of the term. Not surprisingly, in dealing with issues such as capital punishment, campaign finance, separation of church and state, religious rights of corporations, and rights of non-union members, the court split 5-4 along traditional ideological lines. It is a mistake to think the court has found consensus on such issues; Justice Scalia has not moved to the left, nor Justice Ginsburg to the right. There were a number of crucial 5-4 decisions.

In Hall v. Florida, the court declared unconstitutional a Florida law that provided that a person would be deemed intellectually disabled, and thus not eligible for the death penalty, if his or her IQ is below 70. Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, held that defendants must be able to present and courts must consider other evidence besides an IQ score in determining if a person is intellectually disabled and thus cannot be executed.

In McCutcheon v. Federal Election Commission, the court split 5-4, but without a majority opinion, declaring unconstitutional a provision of the Bipartisan Campaign Finance Reform Act that created aggregate limits on the contributions that a person could make to candidates for federal office or political parties in a two-year period. The case likely will lead to challenges to federal, state, and local laws imposing contribution limits.

In Harris v. Quinn, the court, also 5-4, held that Illinois could not require that non-union home health care workers pay the percentage of union dues which go to support the collective bargaining activities of the union. Under Abood v. Detroit Board of Education, no one can be forced to join a union, but non-union members must pay for the collective bargaining of the union because they benefit from the union in their pay, working conditions, and representation. But Justice Alito, writing for the court, held that Abood is limited to “full-fledged” government workers and it is an “anomaly” that should not be extended to “quasi-government” employees, which is how it saw home health care workers.

In Town of Greece v. Galloway, the court ruled 5-4 that it did not violate the Establishment Clause for a town to invite only Christian clergy members almost every month for a 10-year period to deliver prayers before legislative sessions, even when the vast majority of these prayers were explicitly Christian in their content. The court indicated that the Establishment Clause is violated only if there is a pattern of prayer over time that proselytizes or denigrates religion or reflects an impermissible government purpose.

And in Burwell v. Hobby Lobby, the court held 5-4 that it violates the federal Religious Freedom Restoration Act to require that a for-profit close corporation provide insurance for employees that pays for contraceptives that its owners find objectionable on religious grounds. This is likely to open the door to challenges by other corporations to insurance mandates and other federal laws that they claim violate the religious beliefs of the owners.


One case that was unanimous and very significant was Riley v. California. The court held that absent a warrant or exigent circumstances the police cannot look at the content of a person’s cell phone. It is the most important Supreme Court decision about the importance of informational privacy. Chief Justice Roberts wrote for a unanimous court. Justice Alito wrote a short concurrence stressing the need for legislation.


It seems quite likely that the court next term will have cases dealing with abortion rights, affirmative action, the Affordable Care Act, and marriage equality. Although certiorari has not yet been granted by the Supreme Court in these cases, they are poised for review. If this happens, it is safe to predict that no one will be writing about the consensus or unanimity in October Term 2014.

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.

Updated Aug. 8 to correctly state that according to Hall v. Florida, a person would be deemed ineligible for the death penalty if his or her IQ is below 70.

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