An end to old left-right divides?

Adam Liptak / New York Times News Service /


Published Jul 1, 2012 at 05:00AM / Updated Nov 19, 2013 at 12:31AM

WASHINGTON — The last week of the Supreme Court's term told one kind of story, of a deeply divided court delivering historic victories to the Obama administration in immigration and health care cases. Those decisions obscured a different story about the work of the court, one that unfolded over the last nine months.

A look back at the term reveals that the court, which has had a reputation for predictable ideological splits, has entered a new phase. This term, it often worked with striking unanimity and assertiveness to review the actions of the other branches of government. Partly for this reason, its relationship to the Obama administration has often been a distinctly adversarial one.

When the court was divided, as it was in the immigration and health care cases, its voting often did not track the usual patterns. There is good evidence that Chief Justice John Roberts has worked hard to insulate his institution from the charge that it has political motivations, an accusation that it is especially vulnerable to because the court's five more conservative members were appointed by Republican presidents and its four more liberal ones by Democrats.

It was not until Justice Elena Kagan joined the court in 2010 that the justices' ideological positions largely tracked those of the presidents who appointed them. Under Roberts, the court has had substantial turnover. In the earlier versions of the Roberts court, Justices David Souter and John Paul Stevens, both appointed by Republican presidents, generally voted with the court's liberal wing.

In the wake of the blockbuster Citizens United decision, which opened the door for corporations and unions to spend as much as they like to support or oppose political candidates, the court was accused of naked partisanship for seeming to favor Republican interests.

But after the current term, the Roberts court has proved itself resistant to caricature. Indeed, in the stunning decision to uphold President Barack Obama's health care law, which sustained the most significant piece of social legislation since the New Deal, Roberts recast the legacy of his court and boosted the political fortunes of a Democratic president.

The court was united during the term 44 percent of the time, which is not unusual. But it worked as one in major cases, which is.

“Cases that might have been closely divided and very contentious ended up being unanimous,” said Gregory Garre, U.S. solicitor general in the Bush administration. “It's a tribute to the chief justice, and to the whole court.”

The justices all agreed, for instance, that the administration had wholly disregarded the First Amendment's guarantee of religious liberty in a case concerning how employment discrimination laws apply in churches and religious schools.

That case saw a concurrence from Justice Samuel Alito, who was appointed by President George W. Bush, joined by Kagan, appointed by Obama. Such surprising alliances dotted the docket.

Kagan, the newest member of the court, rose in influence. In closely divided cases, she voted with the court's swing member, Justice Anthony Kennedy, more than any other justice. Kennedy himself had an unusually balanced term, voting as often with the court's liberal wing as with its conservative one in 5-4 votes along ideological lines.

The court's unanimous cases were sometimes minimalist. The court found common ground, for instance, in a modest, unsigned decision in a combustible Texas redistricting dispute, one that seemed largely to satisfy both the state and civil rights advocates.

Other unanimous rulings, like the one in the religious liberty case, were more muscular.

In that one, the court for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

In an important property-rights case, the court ruled unanimously for an Idaho couple who objected to actions of the Environmental Protection Agency designating their property as wetlands and forbidding them to build a home there.

And though the court relied on varying rationales and featured a cautious and confusing majority opinion, it was also unanimous in saying the police may not place GPS devices on cars without taking some account of the Fourth Amendment's ban on unreasonable searches and seizures.

A theme ran through many of these cases, one that is likely to be lost in the aftermath of the victories the court handed to the Obama administration in the last week of the term. At least five times, sometimes in harsh terms, the court unanimously rejected the administration's position.

In the environmental case, Justice Antonin Scalia said the government had sought to strong-arm the couple. And in the ministerial-exception case, Roberts said the administration had sought to read religious liberty out of the First Amendment.

The court decided 15 cases by 5-4 votes, roughly in line with earlier terms. It was also not unusual that two-thirds of those decisions divided along ideological lines, with Kennedy joining either the court's four more liberal members or its four more conservative ones.

What was striking this year was that Kennedy swung right and left an equal number of times. Since 2000, there have been only two terms in which Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Only two pairs of justices agreed more than 90 percent of the time. One was Scalia and Clarence Thomas, the two members of the court most committed to attempting to apply what they understand to be the original meaning of the Constitution. The other was Roberts and Alito, the two members of the court appointed by Bush.

However one reads the Roberts court, the justices' jobs certainly don't seem to have gotten easier. At the final session of the term Thursday, several looked drained, weary and ready for their summer break. “This term has been more than usually taxing,” Ruth Bader Ginsburg admitted in remarks to a liberal group two weeks ago.