Chemerinsky: Without actually issuing opinions, SCOTUS has already decided a lot
In the first few weeks of October Term 2014, the U.S. Supreme Court repeatedly made headlines through a series of unsigned orders and denials of certiorari. These actions, all of which occurred without explanation from the justices, are going to have an enormous effect on people’s lives across the country. I cannot think of another time when so much happened through Supreme Court actions that occurred without judicial opinions.
Several unsigned orders involved state laws restricting voting. On Sept. 29, the justices allowed an Ohio law that limited early voting to go into effect. Federal District Judge Peter C. Economus had issued a preliminary injunction against the law’s implementation, and the Cincinnati-based 6th U.S. Circuit Court of Appeals affirmed. But the Supreme Court by a 5-4 margin issued a stay in an unsigned order and allowed the restrictive Ohio law to go into effect. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan dissented.
On Oct. 8, the court allowed a North Carolina law that restricted voting to go into effect. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals had found two provisions of the law likely to be a violation of the Voting Rights Act: barring voters from registering and casting their ballots on the same day, and refusing to count votes that were cast in the wrong polling places. The court, without explanation, permitted the law to be implemented. Justice Ginsburg, joined by Justice Sotomayor, dissented and argued that the two restrictions at issue, as well as others in the law, likely violated the Voting Rights Act.
By contrast, on Oct. 9, the Supreme Court, by a 6-3 margin, blocked a Wisconsin law requiring photo identification for voting from going into effect. The Wisconsin law was challenged on the ground that it would have a disproportionate effect against minority voters and thus violate the Voting Rights Act. Again, a federal district judge issued a preliminary injunction, concluding that the law would keep tens of thousands from being able to vote because of their lacking the proper identification. A three-judge panel of the Chicago-based 7th U.S. Circuit Court of Appeals reversed, and the circuit split 5-5 in an en banc vote. The Supreme Court, without explanation, stopped the Wisconsin law from going into effect, with Justice Samuel A. Alito Jr. writing a short dissent joined by Justices Antonin Scalia and Clarence Thomas.
Most dramatically, just after 5 a.m. on Saturday, Oct. 18, the justices in a 6-3 decision allowed Texas’s restrictive voter identification law to go into effect. A federal district court in Texas held a nine-day trial and issued a 143-page opinion (PDF) declaring the Texas law an “unconstitutional burden on the right to vote” and the equivalent of an unconstitutional poll tax.
The Texas law, as Justice Ginsburg noted in her dissent, is “the strictest regime in the country.” For example, unlike restrictive laws adopted in other states, such as Wisconsin, Texas will not accept student identification from in-state universities or identification cards issued by Native American tribes. Obtaining the permissible forms of identification requires obtaining a state-issued birth certificate for $22. The Supreme Court long ago ruled that a state cannot charge even a $1 fee for voting.
The federal district judge concluded that the effect of the Texas law will be that about 600,000 voters, primarily African-American and Latino, will be kept from voting. The district court agreed with the U.S. Justice Department and other challengers that the Texas law violated Section 2 of the Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result.
Despite these findings, the Supreme Court issued its order to allow Texas to put its restrictive law into effect for the November elections. The court did so without any explanation and in an unsigned order. Justice Ginsburg filed a dissent, joined by Justices Sotomayor and Kagan. Justice Ginsburg lamented: “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”
The court’s unsigned orders have not just been in voting cases. On Oct. 14, the court, by a 6-3 margin, kept a Texas law from going into effect that would have closed many facilities where abortions were performed. The Texas law would have required that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions through the use of drugs. It also kept a requirement from going into effect in two areas that would have insisted that all doctors performing abortions have privileges to admit patients to a hospital within 30 miles of the clinic. Those two provisions had the effect of reducing the number of clinics still operating in the state to seven, compared with the 41 that recently had operated.
Again, the court gave no explanation for its order. Justices Scalia, Thomas, and Alito dissented and would have allowed the Texas law to go into effect. They, too, gave no explanation.
This practice of law by unsigned orders without opinions is troubling. A crucial aspect of the judicial process is that judges give reasons for their rulings. This explains the basis of the decisions to the litigants, provides guidance for lower courts, and makes the rulings seem more than arbitrary exercises of power. Even though the court needed to act quickly, there is no reason for not writing at least brief opinions explaining its decisions. There are many instances of justices acting very quickly when necessary, including with judicial opinions, such as in Bush v. Gore and the Pentagon Papers Case (New York Times v. United States.) The court’s orders will have a great effect on those who can vote and those who can’t, on those who get elected and those who don’t, and those on who can receive an abortion and those who can’t. Yet the court gave no explanations for its actions.
There also is a more technical, serious problem with many of the court’s recent actions: Appellate courts are supposed to overturn preliminary injunctions issued by trial courts only if there is an abuse of discretion. Also, appellate courts, including the Supreme Court, are supposed to defer to the fact-finding of the trial courts. In the Texas voting case, for example, there were detailed findings of fact by the federal district court, and it is inconceivable that the Supreme Court could conclude that its decision was an abuse of discretion, especially when a three-judge federal district court earlier had come to the same conclusion in blocking the law under the preclearance requirement of the Voting Rights Act.
So without issuing a single opinion in the first few weeks of the new term, the Supreme Court has decided a lot. And that is without even mentioning that Monday, Oct. 6, the court denied certiorari to review decisions of the 4th, 7th, and 10th Circuits declaring unconstitutional laws prohibiting marriage equality in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The result is to allow same-sex marriage in these states and ultimately all of the states within these circuits, effectively adding Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming to the list of states where there will be marriage equality.
It has been an amazing start to 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.
