Scattered among the rest of the term’s 81 decisions were a pair of inconclusive setbacks for the Obama administration on Obamacare and immigration and a mixed plateful of other decisions on criminal law, civil litigation, and other topics.
The court’s conservative bloc suffered a mortal blow when Justice Antonin Scalia died on Feb. 13 with fewer than one-fourth of the term’s cases decided. But Justice Anthony M. Kennedy joined with the court’s four liberal justices to deal the conservatives unexpected defeats in a pair of Texas cases on affirmative action and abortion on the two final decision days of the term.
Before Scalia’s death, conservatives had high and realistic hopes of winning both cases with decisions that would narrow the use of race in college admissions and fortify states’ power to regulate abortion clinics. Instead, Kennedy’s shift on the two topics produced decisions that provide a roadmap for colleges to follow in race-conscious admissions and appear to endanger abortion clinic regulations on the books in 25 other states.
The three remaining conservatives Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr. were left to dissent in both decisions. Alito wrote long and impassioned dissents in each of the cases, which he emphasized by summarizing at length from the bench.
Scalia would certainly have joined the dissenters in both cases, but his vote would not have affected the outcome in either. In the abortion case, Whole Woman’s Health v. Hellerstedt, the vote would have been 5-4 instead of 5-3. Scalia’s vote in Fisher v. University of Texas would have changed the 4-3 decision to a 4-4 tie that would still have upheld UT’s admissions policies but without setting a national precedent.
The conservatives’ biggest victory for the term came on a 4-4 tie in the challenge by Texas and 25 other states to the Obama administration’s policy of protecting an estimated 5 million unauthorized immigrants from deportation. The justices were split sharply along conservative-liberal lines when the case, United States v. Texas, was argued in April. The tie vote upheld the decision by the federal appeals court in Texas upholding a lower court injunction blocking the administration policy.
The justices were similarly divided along the usual ideological lines in arguments in the Obamacare case, Zubik v. Burwell. Religious schools and charitable groups had raised religious freedom claims in challenging the mandate to include cost-free coverage for contraceptives in their health plans for students and employees. The court resolved the impasse with an 8-0 decision sending the cases back to federal appeals courts with instructions to give the opposing sides time to try to reach a mutually acceptable accommodation.
Conservatives were on the losing side, however, of another of the term’s inconclusive 4-4 ties. The court’s tie vote in Friedrichs v. California Teachers Association turned back a conservative-backed effort to block public employee unions from requiring nonmembers to pay a so-called agency fee to help cover the unions’ costs in representing all employees in collective bargaining and grievance procedures. Scalia’s vote likely would have favored the dissident teachers in the case and dealt a stunning blow to the finances of public employee unions nationwide.
Conservatives were also hoping for a win in a case brought by some Republican voters in Texas to change the rules for equalizing populations in state legislative districts. The plaintiffs in Evenwel v. Abbott wanted to count voter-eligible citizens instead of total population, the standard practice under existing law. The proposed rule was seen as likely to benefit Republicans and disadvantage Democrats. The court refused in an 8-0 decision to require states to count only eligible voters, but two conservatives, Thomas and Alito, emphasized in separate opinions that states were free to do so.
As in previous terms, a nominally conservative court favored criminal defendants and suspects in many of its decisions. Out of 22 decisions in argued cases, 12 favored defendants, nine favored the government, and one was mixed. The mixed decision in Birchfield v. North Dakota allows police to administer breath tests but not blood tests to drunken-driving suspects without a search warrant. Police scored a significant win in another search case, Utah v. Strieff, which allowed the use of evidence found after a warrant check on a suspect following an unlawful stop.
In another major criminal case, however, the court extended on a 6-3 vote before Scalia’s death the impact of an earlier decision limiting life-without-parole sentences for juvenile murderers. The decision in Montgomery v. Louisiana to apply an earlier decision retroactively held out the possibility of releasing more than 1,000 prisoners serving life-without-parole terms for murders committed before age 18.
Among other criminal cases, the court in Hurst v. Florida struck down Florida’s death penalty law because it allowed judges to make factual findings necessary to impose a death sentence. In another capital case, the court in Foster v. Chatham gave the African American defendant a new opportunity to overturn the verdict because of racial discrimination in jury selection.
The final decision of the term also favored criminal defendants: specifically, gift-taking public officials. The 8-0 ruling in McDonnell v. United States set aside the public corruption conviction the feds obtained against former Virginia governor Bob McDonnell for accepting an estimated $175,000 in gifts and gratuities from a businessman seeking favorable consideration from state agencies. In his opinion for the court, Roberts described the gift-taking as “tawdry,” but called the prosecution’s theory overbroad. The government gets another chance to show that McDonnell’s efforts in the businessman’s behalf amounted to “official acts” for purposes of the federal anti-graft laws, but the opinion seems tilted the opposite way.
Business interests and legal conservatives were left with mixed decisions in areas where the Roberts Court has generally been friendly to them. In one decision, the court in RJR Nabisco v. European Community blocked European countries from using the federal anti-racketeering law to seek civil damages from the food and tobacco conglomerate for an alleged money laundering scheme to boost cigarette sales on the Continent. But in other cases the court allowed some use of statistical evidence to allow class actions to go forward (Tyson Foods v. Bouaphakeo) and blocked one defense tactic to neutralize class actions by settling with the named plaintiff (Campbell-Ewald Co. v. Gomez).
The court ended the term with a vacant seat at the far right with no prospects for the empty chair to be filled before the new term begins on the traditional first Monday in October. President Obama’s nomination of federal judge Merrick Garland to succeed Scalia remains hostage to Senate Republicans’ unprecedented decision to keep the vacancy open until after the presidential election.
The Washington Post’s veteran Supreme Court correspondent Robert Barnes captured the term well in his weekend preview of the final decision day by calling the term “strange and ill-fated.” The court added three cases for the new term in orders released on Monday, but the total number accepted so far 21 is low by historical standards. With only eight justices in place, the new term seems quite likely to be strange as well, whatever the judicial fates may be.