2013 Supreme Court roundup: Michael W. McConnell tells a tale of two Courts.

Author:McConnell, Michael W.

The United States Supreme Court has two personalities. In the vast majority of cases on its docket, those involving criminal law, business regulation, statutory interpretation, freedom of speech, procedure, jurisdiction, and other technical but important legal questions, the Supreme Court acts like a court of law--a good one. The justices achieve a remarkable degree of consensus and craft opinions that are clear, persuasive, and well grounded in text, history, and precedent. This is true even in hard cases, where there are good arguments on both sides. No one will agree with every decision, but no fair-minded observer could doubt that decisions are based on conscientious legal reasoning.

Then there are the hot-button ideological cases. This term they centered on same-sex marriage, affirmative action, and voting rights enforcement. In these cases, the Court seems to lose its bearings. The justices split into predictable warring camps, liberals against conservatives, with Justice Anthony Kennedy's vote usually determining the outcome. The opinions in these cases are often failures of legal craft. Passion--not law--tends to govern outcomes. Legal analysis is weak, sometimes embarrassingly so.

This does not mean the results in these hot-button cases are extreme. In fact, the overarching message of the 2012-13 term was the Court's attempt, led by Kennedy and Chief Justice John Roberts, to hew a middle course in the highly controversial areas. In the same-sex marriage cases, the Court invalidated the federal Defense of Marriage Act but stopped well short of declaring a nationwide constitutional right of men to marry men and women to marry women. The Court tightened the screws on affirmative action admissions by colleges and universities, making it more difficult for these institutions to defend their race-based policies when they are challenged, but it did not outlaw such policies. And it invalidated the formula for determining which states are subject to preclearance requirements under the Voting Rights Act, but it did not question the legitimacy of this enforcement mechanism if it is properly targeted.

All these decisions avoided the extremes. For once, there were no end-of-term lamentations about the Court's "radical turn to the right," which has been a staple of Court "analysis" for thirty years.

The popular media treat the United States Supreme Court as a thoroughly political institution, polarized--like the rest of our political realm--between a right and a left that can no longer come together for the common good. An organized claque seeks to portray the Court (without much evidence) as stacked in favor of business and against consumers, workers, and ordinary Americans. These made-for-TV depictions have all the reality of a reality show.

For all the handwringing about ideological polarization, the Court decided a remarkable 49 percent of its seventy-eight cases in the 2012 term by unanimous vote--up from 44 percent the previous year and 33 percent in 2008. Don't imagine it did so because these cases are easy. Almost all featured issues on which the lower courts had issued divergent judgments. In nine of the cases (thirteen if you count amicus filings), the administration, through the solicitor general, urged the opposite result. (The liberals on the Court are not lapdogs of the administration.) The chief justice's detractors may not have noticed, but this pattern of increasing unanimity fulfills the pledge he made during his confirmation hearings to build greater consensus on the Court by deciding cases more narrowly and modestly than in the past. It helps that the Court decides relatively few cases, giving the justices time to think things through and work things out.

Twenty-three cases (29 percent of the total) in the 2012 term were decided by five to four votes, an up-tick from the past two years. But in almost a third of these, the Court split along lines other than right-left. For example, it was not unusual to see Justice Antonin Scalia, the conservatives' darling, aligned with liberal justices in criminal cases, a result of his commitment to interpretation based on history and of a soft libertarian streak in domestic matters. On the other side of the spectrum, liberal justices joined with the conservatives in two unanimous cases protecting property rights against governmental takings, in both instances reversing the lower courts.

Contrary to the caricature of the Court as a pro-business drone, the four most important business cases went opposite ways. Two favored business interests, one preempting tort stats against generic drug manufacturers, and the other making arbitration clauses enforceable in antitrust suits. Two others went the other way, one letting drug manufacturers be sued under antitrust laws when they had settled patent cases through cash payments to the alleged patent violator, the other preventing biotech companies from patenting human genes.

In two other cases, the Court continued its recent trend of refusing to expand the rights of employees to sue for alleged discrimination. This has been greeted in some circles as evidence of the Court's bias. But readers can judge for themselves whether these rulings are unreasonable. In Vance v. Ball State University, the Court defined "supervisor," the person whose discriminatory actions lead directly to liability for the employer, as a person who can fire, demote, or discipline the plaintiff. And in University of Texas Southwestern Medical Center v. Nassar, the Court held that an employee cannot challenge an allegedly retaliatory employment decision, such as a refusal to hire, without proving that retaliation was the cause of the decision and not merely one of several motivating factors.

Criminal law cases similarly went both ways. Criminal...

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