A Surprising Supreme Court

The 2015 Court term is complete, with the final opinions being issued this morning, so it is timely to examine what has transpired. The Court is narrowly divided between conservative and liberal justices, so few cases had clear and predictable outcomes. However the conventional wisdom is that the Court leans right ideologically, so early predictions were for a rocky road for the administration and for liberals in general.

It is widely accepted that there were fifteen major cases that were decided this term. Their impact will be felt for many years to come. These are summarized below in chronological order, together with a graphic showing how each justice voted. For this information and format I am indebted to Adam Liptak and Alicia Parlapiano of the New York Times.

Religious Freedom in Prison – Holt v. Hobbes. The Court ruled that Arkansas correction officials had violated the religious liberty rights of Muslim inmates by forbidding them to grow beards.

Prison ReligionThis is a rare unanimous decision, but it should nevertheless be viewed as a win for the liberals.

Pregnancy Discrimination – Young v. United Parcel Service. The Court overturned an appeals court ruling that UPS had not discriminated against Ms. Young by refusing special relief due to her pregnancy.

PregnancyThis decision gives Ms. Young another chance to prove discrimination and the content of the opinion should give her high hopes. Another win for the liberals, with the conservatives split.

Race and Redistricting – Alabama Legislative Black Caucus v. Alabama. The Court found that the State Legislature had engaged in racial gerrymandering by relying too heavily on race in its 2012 state redistricting.

Race RedistrictingThis narrow win for the liberals sends the case back to the Federal District Court for reconsideration. In all probability, Alabama’s districts will have to be redrawn more to the liking of the Black Caucus.

Judicial Elections and Free Speech – Williams-Yulee v. Florida Bar. Many states with judicial elections allow judges to raise money from attorneys who appear before them. Florida prohibits this clear conflict of interest and the Court agreed by upholding a fine against the plaintiff for signing a fund-raising letter.

Judicial ElectionsThis decision is another instance of the Chief Justice showing a moderate side, accepting that some regulation of money in politics is constitutional. That’s four in a row for the liberals. Do you see a trend developing here?

Employment Discrimination – EEOC v. Abercrombie & Fitch. The Court ruled that Samantha Elauf was not required to make a request for religious accommodation to wear a hijab when applying for employment.

Employment DiscriminationMost conservative justices agreed that company dress codes don’t trump religious beliefs, even when that religion doesn’t currently hold a favored status.

Social Media and Free Speech – Elonis v. United States. The Court decided that Anthony Elonis’ Facebook posting wasn’t truly threatening even though it spoke of directing mayhem at his wife and others.

Social MediaMr. Elonis sentence was overturned and he was released from prison. Free speech triumphs, although the case was actually decided on statutory grounds.

Separation of Powers – Zivotofsky v. Kerry. The Court backed the administration in its long-standing policy of not showing Jerusalem as the place of birth in passports of American children who were born in that city.

Separation of PowersThis is a clear victory for Obama and his liberal cohort on the Court. It is also an extremely rare instance of Justice Thomas siding with them.

The Confederate Flag and Free Speech – Walker v. Sons of Confederate Veterans. The Court agreed that Texas had not discriminated when it refused to allow a vanity license plate bearing the Confederate flag.

Confederate FlagLet’s see, that is eight wins in a row for the liberals, but it was only because Justice Thomas split off on an issue that has strong racial overtones.

Religious Signs and Free Speech – Reed v. Town of Gilbert, AZ. The Court decided that a town ordinance that places different limits on political, ideological and directional signs violates the First Amendment.

Religious SignsWhile seemingly unanimous, some justices of both political persuasions felt that it went too far in making this ordinance subject to strict scrutiny, but nevertheless they concurred.

Housing Discrimination – Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project. The Court ruled that suits under the Fair Housing Act of 1968 can claim disparate impact and don’t have to prove intentional discrimination.

Housing DiscriminationThis is a crucial win for the liberals since intentional discrimination is very hard to prove.

Health Care Subsidies – King v. Burwell. The Court decided that tax subsidies can be given in the states that decided not to run their own exchanges.

Health Care SubsidiesA major win for Obamacare, where once again Chief Justice Roberts sided with the liberals.

Same-Sex Marriage – Obergefell v. Hodges. The Court decided that the Constitution guarantees a right to same-sex marriage.

Same-Sex MarriageLikely the most controversial decision of this term, and one that will play heavily in the rhetoric of the coming Presidential election.

Partisanship and Redistricting – Arizona State Legislature v. Arizona Independent Redistricting Commission. The Court upheld a voter initiative that stripped legislators of their authority to draw district lines.

RedistrictingThis decision has broad implications for other states, like California, where similar propositions are directed at preventing political gerrymandering. Liberals are rejoicing.

Pollution Limits – Three consolidated EPA cases. The Court found that the EPA violated the Clean Air Act by failing to undertake appropriate cost-benefit analyses in setting toxic pollutant emissions limits from power plants.

Pollution LimitsWell, it couldn’t last forever. The liberals lost after thirteen – count ’em, 13 – consecutive victories. This was a classic case of liberal “do the right thing and damn the cost” versus conservative “green eyeshade” analysis.

Lethal Injection – Glossip v. Gross. The Court ruled that states may use a drug linked to botched executions to carry out death sentences.

Lethal InjectionFor the second consecutive time, the liberals lost on a classic ideological issue. All of the dissenters oppose capital punishment, so the defects at issue are probably irrelevant.

So what, if anything, can we conclude from these results? First and foremost, the prediction of a rightward lean by the Court was flat wrong. Secondly, the ideological cohesion of the liberals is remarkable. In every single decision they voted as a group. They could have just elected their senior representative, Justice Ginsburg, as their proxy and the rest could have spent their time relaxing at home. The conservatives, on the other hand, frequently disagreed among themselves. Kennedy sided with the liberals 10 out of 15 times; Roberts did so 7 times and often on the most significant cases. Thomas was the most eccentric, opposing a fairly united set of conservative colleagues 4 times.


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