By Erwin Chemerinsky
It is 40 years since I started law school, and I cannot remember a Supreme Court term with so many liberal victories in major cases. What explains it and what is it likely to mean for the future?
|U.S. Supreme Court
The easiest explanation is that Anthony Kennedy voted with the liberal justices much more often than in any prior term. There were 13 cases that split 5-4 along ideological lines, and in eight of them Justice Kennedy joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. In five of them, Justice Kennedy joined Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. By contrast, over the first nine years of the Roberts Court, Justice Kennedy joined the conservatives about 70 percent of the time when the court was ideologically split 5-4.
But that explanation does not tell the whole story. There were a few cases where Justice Kennedy dissented, but the liberal justices were still in the majority by attracting one or more of the other justices to join them. Thus another key factor explaining the decisions was the cohesion of the four most liberal justices – Ginsburg, Breyer, Sotomayor and Kagan. They voted together in 15 of the 19 5-4 decisions. Therefore, they needed to attract only one additional vote to get a majority. One reflection of this is that for the first time the justice most often in the majority was Breyer. He voted in the majority 92 percent of the time. He also was the justice most often in the majority in 5-4 decisions.
Does this mean that the Roberts Court has moved to the left? Not at all. It always is dangerous to generalize from a single term. A year ago, commentary on the court focused on the unanimity of the term: 66 percent of the cases were decided unanimously. This year, only 34 percent of the cases decided after briefing and oral argument were unanimous.
Next year, the court will be deciding cases about affirmative action, voting rights, First Amendment rights of non-union members and, most likely, abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative justices.
The most high profile case of the term was Obergefell v. Hodges, where the Supreme Court ruled, 5-4, that laws prohibiting same sex marriage violate the due process and equal protection clauses of the Fourteenth Amendment. Justice Kennedy wrote for the court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.
Justice Kennedy explained that the court long has protected the right to marry as a fundamental right. It is safeguarded under both the due process and equal protection clauses. The court examined the precedents concerning the right to marry and concluded, that “[t]his analysis compels the conclusion that same-sex couples may exercise the right to marry.”
The court said that there is no difference between same-sex and opposite-sex couples when it comes to the importance of marriage for couples, for their children and for society. The court rejected that a tradition of discrimination justifies continued discrimination. The court also rejected the argument that marriage is about procreation and explained that same-sex couples will procreate whether or not they can marry and their children should have the benefit of married parents.
Each of the four dissenting justices – Chief Justice Roberts and Justices Scalia, Thomas and Alito – wrote dissenting opinions. Each of the dissenting justices accused the majority of undue judicial activism. Each of the dissenting justices argued that the issue of marriage equality should be left to the political process to resolve. Each emphasized the long tradition of marriage being only for opposite sex couples.
The decision is truly historic and means that same-sex couples now can marry everywhere in the United States.
In King v. Burwell, the court ruled that those who qualify economically and purchase health insurance from exchanges created by the federal government can receive tax credits.
The goal of the Affordable Care Act was to make sure that almost all Americans have health care coverage. Prior to the Affordable Care Act, approximately 50 million Americans were without health care coverage.
Read the whole story at California Bar Journal