The 2014-2015 Term and
the Future of the U.S. Supreme Court
Artemus Ward
Dept. of Political Science
Northern Illinois University
aeward@niu.edu
• The justices handed down more
liberal decisions than at any time
since the Warren Court (1954-1969).
Why?
• It was not necessarily due to the
justices becoming more liberal, so
much as it was a function of the
cases they chose to decide.
• Specifically, conservatives have been
pushing issues to the Court that seek
to undo long-established liberal
policies. The Court’s moderate
conservatives are, more often than
not, unwilling to undo them.
The Most Liberal Term since the Warren Court
• Take Justice Anthony Kennedy, for example. He is
the Court’s “median justice” or “swing vote” in
most of its 5-4 decisions.
• In previous terms, he leaned right in such cases
about 2/3 of the time. This time around, he voted
with the liberals 8 times and with the
conservatives 5.
• Chief Justice John Roberts has also sided with the
liberals on occasion, also demonstrating an
unwillingness to go as far as his conservative
colleagues (Antonin Scalia, Clarence Thomas,
Samuel Alito) would like.
• Are Kennedy and Roberts becoming more liberal?
Obergefell v. Hodges (2015)
Obergefell v. Hodges (2015)
• The Court ruled that the Constitution guarantees a right to same-sex marriage.
• Justice Kennedy voted with the liberals to make up the 5-4 majority. As the senior
justice in the coalition, he assigned himself the majority opinion, solidifying his legacy
as “the gay rights justice.”
• He explained that same-sex couples seek marriages not to disrespect the institution
but because they respect how meaningful it is. “They ask for equal dignity in the eyes
of the law. The Constitution grants them that right.”
• He held that the 14th Amendment’s Due Process Clause is the basis for the right to
marry:
• “The fundamental liberties protected by this Clause include most of the rights
enumerated in the Bill of Rights. In addition these liberties extend to certain personal
choices central to individual dignity and autonomy, including intimate choices that
define personal identity and beliefs.”
• Dissenting in Obergefell, Justice Scalia accused the court’s liberals of a sort of
intellectual dishonesty in joining Justice Kennedy’s opinion, which he charged
sacrificed legal rigor for soaring language. “If, even as the price to be paid for a fifth
vote, I ever joined an opinion for the court” that included such vague passages, he
wrote, quoting one, “I would hide my head in a bag.”
King v. Burwell (2015)
King v. Burwell (2015)
• The case depended on reading four words in the statute. Federal subsidies now
used by more than 6 million Americans, the challengers said, were intended for
just a subset of health insurance marketplaces, only those "established by the
state.“
• Thus, the challengers argued, subsidies could not be used by Americans who
lived in states that chose not to establish their own health insurance
marketplaces. Those Americans were using the federal health insurance
marketplace.
• Neither Kennedy nor Roberts bought the challengers’ argument. Roberts called
the four-word phrase "the ultimate ancillary provision: a sub-sub-sub section
of the Tax Code," adding, "We doubt that is what Congress meant to do“ – to
limit federal subsidies to only those who participated in state, rather than
federal, health insurance marketplaces
Walker v. Sons of Confederate Veterans (2015)
Walker v. Sons of Confederate
Veterans (2015)
• The Court ruled that Texas did not violate the First Amendment when it
refused to allow specialty license plates bearing the Confederate battle flag.
• The 5-4 majority was composed of the 4 liberals and Justice Clarence Thomas
who controlled the opinion assignment. He chose not to write the majority
opinion and instead assigned it to Justice Stephen Breyer.
• Breyer said that specialty license plates are government speech and are thus
immune from First Amendment attacks. “As a general matter, when the
government speaks it is entitled to promote a program, to espouse a policy or
to take a position.” Were this not so, he said, the government would be
powerless to encourage vaccinations or promote recycling.
• The decision was issued the morning after the shootings in Charleston, S.C.
started a national debate about the meaning of Confederate flag. The timing
was coincidence.
Glossip v. Gross (2015)
Public Opinion
• With rare exception (school prayer, flag burning, term limits), the Court is
broadly reflective of the preferences of the American people.
• This past term proved the rule with the Court ruling in favor of gay marriage
and the health insurance subsidies provided by federal exchanges.
• Last term, Justice Ginsburg remarked to the liberal American Constitution
Society: “The court is not in a popularity contest, and it should never be
influenced by today’s headlines, by the weather of today. Inevitably, it will be
affected by the climate of the era.”
2015-2016 Term
• The justices have already agreed to hear cases on affirmative action, voting
rights (the meaning of “one person, one vote”), class action lawsuits, and they
are likely to hear a major abortion case and possibly another case involving a
religious exemption to the Affordable Care Act.
• But there is a case on the docket regarding union organizing that provides an
important window into understanding the Court and its role in the American
governmental system.
• But first, a little background information on unions…
Public Opinion of
Unions
• This case is part of the larger conservative strategy in American to destroy unions—which they see as
the single greatest contributing factor for lower profits for owners and higher taxes for taxpayers.
• Indeed, the conservatives have been successful in recent decades in convincing Americans that
unions are bad.
• Since Congress passed the National Labor Relations Act in 1935 (the Court upheld it in 1937), public
opinion toward unions was consistently positive with between 2/3 and 3/4 of Americans approving of
unions.
• However, in recent years that approval has eroded to about 50% at best today, making unions ripe for
attack.
• The massive decline in union membership has been a direct result of policy changes
and the turn to a more conservative era in American society beginning with the
election of Ronald Reagan in 1980.
• Today, only 11% of the workforce belong to unions.
• While union
membership
has drastically
declined overall
and in the
private sector,
union
membership in
the public
sector has
increased over
time.
• Thus, we should
not be surprised
that public
unions are the
latest target of
conservatives.
• Indeed, more than
half of all union
members today
are public
employees.
• Still, it is
important to
remember that
there are far fewer
public employees
than private
employees in
America.
• In 2014, publicsector workers
had a union
membership rate
of 35.7%--more
than five times the
rate for privatesector workers,
6.6%.
Why Union
Membership
Matters:
Wealth
Inequality
Friedrichs v. California Teachers Association
• Friedrichs is a case brought by a California teacher who objects
to paying dues to the union that has bargained the contract
that secures her pay and benefits. The union does not collect
any money from her to support its political activities, but, by
virtue of the Court’s decision in Abood v. Detroit Board of
Education (1977), and hundreds of later decisions based
on Abood, she is obliged to pay that portion of her dues that
goes to bargaining and administering her contract (but not the
portion that goes to political activities such as endorsing
candidates for public office).
• That obligation, the court ruled in Abood, is essential if public
Rebecca Friedrichs has
employees are to have an effective right to collective
taught In the Anaheim, CA
public Schools for 30 years bargaining. If employees can benefit from union
and has been required to representation without funding the union, the court reasoned,
pay union dues, currently the union could be weakened to the point that it couldn’t
$1,000 per year.
represent those employees adequately, if, indeed, at all.
Friedrichs v. California Teachers Assoc.
• Two terms ago, Justice Samuel Alito invited union opponents to bring a
challenge to Abood. The case in which he wrote the 5-4 majority opinion —
Harris v. Quinn (2014) — concerned whether home-care workers, employed
jointly by individuals and the state of Illinois and covered by a union contract,
were required to pay dues.
• While the majority confined its ruling to home-care workers, Alito devoted
most of his opinion to arguing that no public employee covered by a collective
bargaining agreement should be required to pay dues.
• As Justice Elena Kagan noted in her dissent, Alito was arguing a case that wasn’t
even before the Court, soliciting a challenge to the very idea of public-sector
collective bargaining.
• Friedrichs could be another major policy development that decimates unions—
specifically public unions, which have been a recent target of conservatives.
Future Retirements?
• Liberals:
• Ruth Bader Ginsburg – Born: March 15, 1933 (age 82)
• Stephen Breyer – Born: August 15, 1938 (age 77)
• Conservatives:
• Antonin Scalia – Born: March 11, 1936 (age 79)
• Anthony Kennedy – Born: July 23, 1936 (age 79)
• Average age at death for Supreme Court Justices: 90
• Justice John Paul Stevens recently retired at age 90. He is now age 95.
Conclusion
• While the Supreme Court has been handing down some moderately liberal
decisions in recent terms, there should be no mistaking the generally
conservative bent of the current Court—particularly on economic matters.
• In these areas (e.g. congressional authority to regulate the economy via the
Commerce Clause, union organizing, campaign finance) the Roberts Court has
done more to protect the interests and increase the influence and power of
the wealthy.
• While decisions on civil rights and liberties are important, economic decisions
can have as much or even greater impact on American society.