On Oct. 1, the U.S. Supreme Court will return from its summer recess to a term already packed with potential blockbuster cases.
In the spring, the court agreed to hear major cases on race, sex, age, and sexual orientation discrimination, the administration’s decision to wind down the Deferred Action for Childhood Arrivals (DACA) program, the president’s appointment power, religious freedom in education, the “insanity” defense under the Eighth Amendment, and the right to a jury trial under the Sixth Amendment, among many others. Over the next six months, we can expect the justices will accept even more watershed decisions, perhaps even re-hearing a few cases that they punted on last term.
While all of these cases have huge political, legal and social implications, don’t expect the court to split neatly along partisan lines. On the contrary, the Supreme Court’s 2018 term that ended in June showed that the new solidly conservative majority is less united than expected, a trend that is likely to continue into the 2019 term.
In an insightful data-driven piece for FiveThirtyEight, Amelia Thomson-DeVaux observed that Justices John Roberts, Brett Kavanaugh and Neil Gorsuch may have replaced Justice Anthony Kennedy as the court’s new swing votes. While all of these justices are more conservative than Kennedy, their individual defections from the conservative block lead to a slew of surprising wins for the court’s liberal bloc.
However, it would be wrong to assume that the liberal bloc is a monolith either, with Justices Elena Kagan and Stephen Breyer splitting from their liberal colleagues on key criminal justice and religious freedom cases. With these 5 justices all showing flashes of ideological independence, the 2019 term is likely to be defined by surprising alliances.
Fractures in the conservative majority
The 2018 term showed that the court’s conservative majority was anything but united.
The most consequential shifts came from the Chief Justice John Roberts, who took surprising positions in cases involving the power of federal agencies. In Kisor v. Wilkie, the Supreme Court reaffirming Auer v. Robbins, a precedent from the 1980s that forced federal courts to respect the views and interpretations of federal agencies when interpreting agency regulations. Roberts surprised many by joining the court’s liberal bloc, holding that although the constitution and federal statutes give the judiciary the ultimate authority to declare “what the law is,” courts should still defer to the informed interpretations of subject matter experts in federal agencies where appropriate.
However, deference to federal agencies does not mean agency heads are free from judicial oversight. In Department of Commerce v. New York, Roberts, joined by the court’s four liberal justices, blocked a “citizenship” question from being added to the 2020 census. Numerous organizations and community leaders, including Santa Clara County, argued that the Trump administration’s “citizenship” question was a cynical (and potentially racist) attempt to suppress the population count in states with high Latino and immigrant populations.
Roberts, writing for himself and the court’s four liberal justices, channeled this concern in finding that there was evidence that the secretary’s stated reasons for instituting the new “citizenship” question might be pretext for something else and demanding an explanation from the Secretary of Commerce.
The chief justice swung back to the right in Rucho v. Common Cause, however. Roberts, writing for a 5-4 majority, dug up a precedent from the 1960s to rule that partisan gerrymandering was a political question, holding that, although a constitutional violation likely occurred, the court lacked authority to fix it.
Kagan, writing for the court’s liberal wing, blasted the majority for creating a catch-22 for voters: that they must seek a legislative fix to a problem created by and benefiting their legislators, or that they must use their vote to somehow battle the disenfranchisement of their vote. This, Kagan reasoned, was an abdication of the court’s lawful role as defender of Americans’ constitutional right to vote.
Roberts was not the only conservative justice to buck his colleagues.
Gorsuch has distinguished himself in his first two terms on the bench as a wild card in criminal justice cases. In Gamble v. United States, the court held that the constitution’s double jeopardy clause does not prevent the states from prosecuting someone for a crime, even if that person has already been acquitted of the same crime at the federal level. Gorsuch blasted this “dual sovereignty” doctrine for throwing out a bargain struck by the framers of the constitution simply to “make the prosecutor’s job easier.”
In Mitchell v. Wisconsin, Gorsuch again dissented when the court held that “when a driver is unconscious, the general rule is that a warrant is not needed.” Gorsuch lectured his conservative brethren in the majority for deciding a broad issue that no one asked them to decide, a criticism that is becoming a perennial critique of the court under Roberts since Citizens United.
Kavanaugh took his turn to buck his conservative colleagues in Apple Inc. v. Pepper. The question before the court was a technical issue of antitrust law — whether iPhone owners were “direct consumers” when they purchased apps on the app store. Kavanaugh, joined by the court’s four liberal justices, held that iPhone users were “direct” consumers because they purchased the apps directly from the app store. Gorsuch, writing for the four conservative justices in the minority, attacked Kavanaugh’s opinion as overly simplistic, arguing that the majority should have taken into account the “economic reality” that the app developers were the real sellers and that Apple was just an intermediary.
The case is particularly important because it shows that the conservative bloc on the court is not as myopically pro-business as some might think, and Kavanaugh could be a pro-consumer swing vote in the right circumstances. Only time will tell for sure.
The First Amendment splits the liberal bloc
At first blush, it might seem like a united liberal bloc took advantage of the fractures in the conservative bloc to pull off big wins last term.
However, the liberal bloc did not always vote together. Breyer and Kagan joined the court’s conservative majority in two important First Amendment cases. In American Legion v. American Humanist Association, the court rejected a challenge to the Bladensburg Peace Cross, a memorial in the shape of a cross commemorating those who lost their lives in World War I.
Justice Samuel Alito, writing for a three-justice plurality, applied the court’s evolving “religious monuments” test, finding that the cross did not violate the establishment clause of the First Amendment because it had a secular purpose and time had eroded any association with religious symbolism. Breyer and Kagan concurred in Alito’s opinion, giving him a majority, but wrote separately to highlight that the test should be heavily fact-based. In this case, Breyer wrote, the memorial presented “no danger” of establishing one particular religion.
Breyer and Kagan again split from their liberal colleagues in a case involving a retaliatory arrest. In Nieves v. Bartlett, a drunk Alaska man was arrested after refusing to talk to the police about possible underage alcohol use and encouraging others to refuse to talk to the police about the issue as well. Roberts, writing for a 6-3 majority, held that the officers had probable cause to arrest the man, and therefore, it did not matter whether their motives were retaliation for protected speech.
Breyer and Kagan joined Roberts’ opinion, while Justices Ruth Bader Ginsburg and Sonia Sotomayor each dissented separately. Ginsburg’s dissent is particularly noteworthy as she points out that the majority new rule could easily be applied to situations where the police arrest members of the press on dubious grounds.
Surprising unanimity on asset forfeiture
Only one of the landmark cases this term rallied the support of all nine justices: asset forfeiture.
Asset forfeiture laws allow the police to seize property from those they arrest, which can be particularly lucrative in drug cases. In most cases, the police is not required to return that property, even if the person is later released or acquitted. The seized property can then be sold to prop up lagging police department budgets, creating a problematic conflict of interest.
Prominent think tanks on both the conservative and liberal side of the political spectrum have roundly criticized the practice. In Timbs v. Indiana, the court opened the door to legal challenges to asset forfeitures by holding that such seizures by the police are subject to the Eight Amendment’s “excessive fines” clause. The court offered no further guidance, however, and declined to expand on when the seizure becomes “excessive,” leaving asset forfeitures in place for the time being. Still, the controversial nature of asset forfeitures, bipartisan disapproval and the court’s decision to allow lawsuits against the police will no doubt spur reforms.
Look for more unexpected results this term
The court’s 2018 term demonstrates that it would be premature to assume the court’s conservative bloc, acting together, will define the next decade on the court.
On the contrary, we may be looking at a court defined by shifting jurisprudential alliances, an outcome likely to be aggravating for both the political left and right. Whatever the outcome, look for these nine justices to continue defying expectations in the 2019 term.
Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce.