Conservatives racked up win after win during the Supreme Court term that ended Wednesday, affirming a majority that looks more secure than ever.
Rarely did the liberal wing of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan carry the day on a major case. The success in holding the conservative justices to together was crystallized in a startling observation by South Texas College of Law – Houston professor Josh Blackman.
“So far this term, Justice [Anthony] Kennedy has not joined the four liberals on a 5-4 decision — not a single one,” he told LifeZette a day before the justices issued their last decisions of the term.
With the court’s 5-4 decision holding that public employee unions cannot force nonmembers to share the costs of collective bargaining, the court ended the term with 20 cases decided by votes of 5-4.
In none of them did Kennedy provide the deciding vote for liberals. Instead, he sided with the other conservatives in 15 of those cases. It is a remarkable result for a justice usually considered the swing vote on the high court.
In raw numbers, Chief Justice John Roberts was the swing vote during the term. He provided the deciding vote on two 5-4 rulings that went with the liberals. Even Justice Neil Gorsuch voted once with the four liberals in a 5-4 case. (The other 5-4 cases featured unusual lineups with conservatives and liberals voting together).
“It shows, maybe, the polarization of the courts,” said Joseph Tartakovsky, a former Nevada deputy solicitor general and author of “The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law.”
Kennedy stamped a loud exclamation point on the end of the term Wednesday with his announcement that he intends to retire after the end of next month. That gives President Donald Trump the opportunity to shift the court solidly to the right on issues in which Kennedy has tended to line up with the liberal minority.
But a Kennedy replacement, no matter how conservative, would not have made much difference in this term.
“It’s hard to make generalizations from any one term … Some of that is really a function of what cases get chosen,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.
The just-completed court term confirmed one other thing: Conservatives got what they hoped for from Gorsuch when Trump elevated him from the 10th U.S. Circuit Court of Appeals.
“If anything, they’re getting more than they hoped for,” said John Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence.
“Gorsuch has been a terrific choice. He kept his commitment that he made that he’d be fair and interpret the Constitution, as written.”
In addition to reliably voting with the conservative wing, Eastman said, Gorsuch has been an intellectual force in pushing the court to take a more skeptical view of the power of bureaucrats to interpret and implement law.
Eastman cited a pair of cases that did not get as much media attention as some of the higher-profile rulings of the term. In Encino Motors v. Navarro, the court ruled that service advisers at car dealerships are exempt from the Fair Labor Standards Act’s overtime-pay requirement. In Lucia v. Securities and Exchange Commission, the court ruled that administrative law judges are subject to the Constitution’s appointments clause.
“Gorsuch has been a terrific choice,” Severino said. “He kept his commitment that he made that he’d be fair and interpret the Constitution, as written.”
Here is a look at some of the most closely watched cases of the term:
- Husted v. A. Philip Randolph Institute. The justices ruled 5-4 that Ohio followed the motor voter law in scrubbing its voter rolls.
- Jennings v. Rodriguez. Reversing the San Francisco-based 9th U.S. Circuit Court of Appeals, the justices ruled 5-4 that illegal immigrants do not have the right to periodic bond hearings during their detention.
- Trump v. Hawaii. The justices, on a 5-4 vote, upheld Trump’s temporary travel ban on foreigners from seven countries he deemed a security risk.
- National Institute of Family and Life Advocates v. Becerra. The court ruled 5-4 that anti-abortion pregnancy crisis centers do not have to advertise abortion services in their facilities, as required by a California law.
- Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The justices ruled 7-2 that the Colorado Civil Rights Commission, which sanctioned a Christian baker for refusing to bake a wedding cake for a gay couple, violated the man’s right to a fair hearing. The majority opinion by Kennedy cited statements by commissioners disparaging the baker’s faith.
- Janus v. American Federation of State, County, and Municipal Employees, Council 31. The justices ruled 5-4 that public employee unions cannot charge an “agency fee” to nonmembers to help pay the cost of negotiating employee contracts.
- South Dakota v. Wayfair. Overturning an earlier precedent, the court ruled 5-4 that online companies must collect the sales taxes charged by states where their customers live — even if those retailers have no substantial presence in those states. In that case, Ginsburg joined four of the five conservatives to form the majority.
- Sessions v. Dimaya. Gorsuch sided with the four liberals in that case, in which the majority ruled that some legal immigrants convicted of crimes could not be deported by the statute because it did not adequately define “violent felony.”