While I will readily accept that my end-of-term comments are even less relevant than usual because they are so belligerently late, I still think I have a few interesting things to point out about the nearly-finished term.
First, and least controversially, Justice Kennedy still controls an important position in the middle of the Court. Justice Kennedy was the only justice to author not a single 9-0 opinion (Roberts 1, Stevens 1, Scalia 2, Souter 4, Thomas 4, Ginsburg 5, Breyer 6, Alito 5). He authored five 5-4 opinions (Bartlett, Iqbal, Caperton, Denedo, Ricci), one 6-3 opinion (Couer), and one 8-1 opinion (Negusie). As was well documented by SCOTUSblog, he cast fewer dissenting votes than any other justice, with only 6 dissenting votes in the entire term. The next closest was Scalia with 13 and the Chief Justice, Justice Thomas, and Justice Alito with 15 each. Justice Stevens topped the list with 28.
Second, the liberal members of the Court won as many victories as they could and also managed to taper several other opinions. On the issue of preemption, the conservatives lost twice and both times they were fairly clear-cut losses: early in the term with Altria and on the last day of the term with Cuomo. In Cuomo they found an unlikely ally in Justice Scalia to craft an unusual, though not inconceivable, majority of Justices Stevens, Scalia, Souter, Ginsburg, and Breyer. Another one of the more obvious victories is Caperton, which I think will produce an interesting set of guidelines on the state-level as different states grapple with the issue and devise ways to minimize the trauma tgatthiscase will wreak on their judicial systems. The opinion in Winters, while not a “liberal” victory, was fairly narrow and did not go as far as it could have gone in rejecting the federal government’s obligation to respect certain environmental boundaries.
For the liberal justices, I would call Northwest Austin Municipal Utility District v. Holder a victory. I think Congress will take a hint and reform Section 5 in a series of steps and the Court, while I doubt they will take on the issue while many of the current justices are sitting, will likely find that Congress did its best and grant it the deference that it deserves. Ricci, on the other hand, was a more significant setback. Still, the Court did not go as far as it could in attacking the bulk of the Title VII jurisprudence. It simply enforced a “strong-basis-in-evidence” standard that doesn’t seem so far removed from the burden that most governments impose on themselves already out of fear of litigation. Both NWAMUDNO and Ricci were saved by the Court’s not-so-sudden minimalist/incrementalist streak. In both cases there was, no doubt, very interesting insider baseball.
In both cases a single conservative member of the Court attacked a seemingly well-established precedent of the Court but no other member was willing to go so far. In NWAMUDNO, Justice Thomas refused to sign on to the Court’s effort to give Congress a chance to fix the VRA. While it’s difficult to say whether or not any other Justices are inclined to move in that direction, none of the others were willing to take that drastic step now.
In Ricci, Justice Scalia seemed to question the validity if the Courts entire field of disparate impact jurisprudence. No other Justice joined his concurring opinion, but his opinion, especially in light of Justice Thomas’ a week earlier, suggests that the Court’s normally well-coordinate conservative faction may be increasingly confident of it’s long-term viability.
Finally, it looks like the Court is becoming increasingly sensitive to the political environment around it. Caperton was an obvious acceptance of the role that politics and elections play in judicial decision-making and the broading of the constitutional right to a trial free of apparent bias is notable. In Ricci, Justice Alito authored a concurring opinion, joined by Justices Scalia and Thomas, pointing to the apparent bias of a Reverend in New Haven who had help Mayor DeStefano get elected. This marks the second time this term that the issue of politics influencing a court has come up. In Ricci only 3 judges bit on the politics issue but I think the issue may have traction as the Court begins to affirm more and more away from selectively applying past and towards creating entirely new lines of precedent.