This Supreme Court term, Roberts was deciding vote in 'the big ones that counted'
The U.S. Supreme Court term ended last week with a dramatic day for opinions in two cases that encapsulated several broader trends for the institution. Chief Justice John G. Roberts Jr. was the author of both, symbolizing his new role as the court’s median justice after Justice Anthony M. Kennedy retired a year ago.
In Rucho v. Common Cause, Roberts joined his fellow conservatives in ruling that partisan gerrymandering claims present political questions that are beyond the reach of the federal courts. The decision put an end to the idea that the Supreme Court would seek to remedy extreme cases of political mapmaking, which has become increasingly sophisticated and drawn growing dissatisfaction among the public.
Kennedy had suggested for years that there might be a standard for federal courts to rule that sometimes lawmakers had gone too far in partisan gerrymandering. But he seemed to throw up his hands last term when the court considered the question in cases from Wisconsin and Maryland, and he retired soon after.
Justice Brett M. Kavanaugh, Kennedy’s successor, joined the chief justice in the majority in Rucho, one case of several this term in which his addition pushed the court to the right.
In the other big case announced June 27, however, Roberts joined the court’s liberal bloc in dealing a blow to the administration of President Donald Trump and its effort to add a question about U.S. citizenship to the 2020 decennial census.
In Department of Commerce v. New York, the chief justice said the public rationale offered by U.S. Secretary of Commerce Wilbur L. Ross Jr.—that the citizenship question was needed to better enforce the Voting Rights Act of 1965—“seems to have been contrived.”
The victory celebrated by opponents of adding the citizenship question may be short-lived. Roberts was joined by his more conservative colleagues in turning aside the challengers’ specific constitutional and statutory claims. But by thwarting the Trump administration on the same day he wrote the opinion against political gerrymandering claims, the chief justice may have preserved the court’s reputation.
“In so many ways, this was a brilliant move by Chief Justice Roberts,” says Jennifer Nou, a University of Chicago law professor and former law clerk to Justice Stephen G. Breyer. “He wants to preserve the court’s legitimacy. It was smart of him to issue the partisan gerrymandering decision the same day as the census decision. If the census case had gone other way, the headlines for the court would have been very different.”
‘THE BIG ONES THAT COUNTED’
The ascendance of the chief justice was one of several themes that emerged from the court’s term. Another was the addition of Kavanaugh, who joined the court a week into the term after his bitterly contentious confirmation hearing and the allegations made against him of sexual misconduct while he was in high school.
Kavanaugh sought to put the controversy behind him as best he could by keeping a low profile. He gave just one speech outside the court, to the conference in Milwaukee of the Chicago-based 7th Circuit U.S. Court of Appeals. Kavanaugh is now circuit justice for that court, and speaking at such gatherings is something justices are expected to do.
Back in Washington,Kavanaugh found himself in the majority at the highest rate, at 91 percent, while Roberts was at 85 percent, according to Adam Feldman, the Empirical SCOTUS, a law blog that analyzes high court output with the verve of a baseball statistician.
“If finding agreement was his goal, Kavanaugh seems to have done an effective job,” Feldman wrote at SCOTUSblog.
Because of the week of arguments he missed, as well as recusals, Kavanaugh did not lead in the number of decisions in which he was in the majority. Roberts led with 61 of 72 total decisions, followed by Samuel A. Alito Jr. and Elena Kagan, at 59 each, and then Kavanaugh’s 58 cases in which he was in the majority.
Feldman points out that Kavanaugh and Roberts shared the highest agreement level for any pairing of justices for the term, at 94 percent. Justices Ruth Bader Ginsburg and Sonia Sotomayor were in agreement in 93 percent of their votes.
Nicole A. Saharsky, the co-head of the Supreme Court and appellate practice at Mayer Brown, said Kavanaugh “stuck very close with the chief justice this year and stuck very close with the majority.”
“I don’t think that is surprising,” she said at a June panel discussion sponsored by the Washington Legal Foundation. “I don’t think this is a term where he would particularly want to make waves.”
At the same panel discussion, Carter G. Phillips, the veteran Supreme Court specialist at Sidley Austin, noted that Kavanaugh’s rate of voting with the majority was about where Kennedy was for his last five or six years on the court.
Phillips suggested that maybe it is Kavanaugh more than Roberts who will fill Kennedy’s longtime role as the “swing vote” between the conservative and liberal blocs. “We’ll see how that plays out,” Phillips said.
John G. Malcolm, the vice president for the Institute for Constitutional Government at the Heritage Foundation, says that it is Roberts who appears to be at the center of the most watched cases. “In the big ones that counted, Roberts was the decisive vote,” he said.
DIFFERENCES FOR COURT’S NEWEST JUSTICES
Kavanaugh and Justice Neil M. Gorsuch, his former schoolmate from Georgetown Preparatory School and Trump’s first Supreme Court nominee, drew attention for some of their notable disagreements. (They were in agreement 70 percent of the time, the same level of accord that Kavanaugh had with more liberal justices Breyer and Kagan.)
Shay Dvoretzsky, a Supreme Court advocate at Jones Day, says that one would have to go back to the first term together of Justices David H. Souter and Clarence Thomas to find a similarly low-level agreement of two appointees of the same president in their first year of service together.
One case decided late in the term was illustrative. In United States v. Davis, Gorsuch joined the court’s liberal bloc to rule that a federal statute that allowed longer prison sentences for anyone who used a firearm in connection with certain other federal crimes was unconstitutionally vague. “In our constitutional order, a vague law is no law at all,” Gorsuch wrote for a plurality.
In one of his more biting dissents of his inaugural term, Kavanaugh wrote that “a decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this court.”
Phillips, of Sidley Austin, said “there was some thought that the common backgrounds of Justice[s] Gorsuch and Kavanaugh might cause them to look at issues the same way. I’m sure they will in some instances, but I think there are a lot of instances where I don’t think they will.”
OPPOSING VIEWS ON STARE DECISIS
There were still more trends at work. The justices repeatedly knocked heads over the role of stare decisis, which is viewed by some observers as a proxy for the great battle expected to come over abortion rights and whether the court’s key precedents in that area will be overruled.
Breyer, in a dissent in Franchise Tax Board of California v. Hyatt, which overruled a 40-year-old precedent, wrote that “Today’s decision can only cause one to wonder which cases the court will overrule next.” He cited Planned Parenthood of Southeast Pennsylvania v. Casey, the 1992 decision that reaffirmed the right of a woman to terminate a pregnancy the court had declared in 1973’s Roe v. Wade.
Thomas, meanwhile, called for practically doing away with stare decisis. In a concurrence in Gamble v. United States, in which the court stopped short of overruling precedents that allow separate prosecutions by the federal government and the states for the same crime, Thomas said “we should not invoke stare decisis to uphold precedents that are demonstrably erroneous.”
“The stability of precedent is certainly one theme of the term,” says Andrew J. Pincus, a Supreme Court litigator at Mayer Brown. “It’s going to be very important to see how that shakes out. This is a court that is very willing to overrule precedent.”
As the term came to an end the last week of June, the justices added about dozen more cases to its docket for next term, including one about whether the Trump administration may legally unwind the Deferred Action for Childhood Arrivals program, which was begun under President Barack Obama to give relief from deportation to young undocumented immigrants.
It will help mark a term that will be perhaps more eventful than the one just finished.
“This is a court very much in transition. The justices are assessing each other, feeling each other out,” says Gregory G. Garre, a former U.S. solicitor general under President George W. Bush and now a Supreme Court litigator at Latham & Watkins. “It underscores the old line that if you change one justice, you get an entirely new court.”