Excerpt
The last week of the Supreme Court’s term told one kind of story, of a deeply divided court delivering historic victories to the Obama administration in immigration and health care cases. Those decisions, however, obscured a different story about the work of the court, one that unfolded over the last nine months.
A look back at the term just concluded reveals that the court, which has had a reputation for predictable ideological splits, has entered a new phase. This term, it sometimes worked with striking unanimity and assertiveness to review the actions of the other branches of government. Partly for this reason, its relationship to the Obama administration has often been a distinctly adversarial one.
When the court was divided, as it was in the immigration and health care cases, its voting often did not track the usual patterns. There is good evidence that Chief Justice John G. Roberts Jr. has worked hard to insulate his institution from the charge that it has political motivations, an accusation that it is especially vulnerable to because the court’s five more conservative members were appointed by Republican presidents and its four more liberal ones by Democrats.
It was not until Justice Elena Kagan joined the court in 2010 that the justices’ ideological positions largely tracked those of the presidents who appointed them. Under Chief Justice Roberts, the court has had substantial turnover. In the earlier versions of the Roberts court, Justices David H. Souter and John Paul Stevens, both appointed by Republican presidents, generally voted with the court’s liberal wing.
In the wake of the blockbuster Citizens United decision, which by a 5-to-4 vote along ideological lines opened the door for corporations and unions to spend as much as they like to support or oppose political candidates, the court was accused of naked partisanship for seeming to favor Republican interests.
But in the last term, the Roberts court proved itself resistant to caricature. In the decision to uphold President Obama’s health care law, which sustained the most significant piece of social legislation since the New Deal, Chief Justice Roberts recast the legacy of his court and improved the political fortunes of a Democratic president.
The court was united during the term 44 percent of the time, which is not unusual. But it worked as one in major cases, which is.
“Cases that might have been closely divided and very contentious ended up being unanimous,” said Gregory G. Garre, a United States solicitor general in the Bush administration. “It’s a tribute to the chief justice, and to the whole court.”
The justices all agreed, for instance, that the administration had wholly disregarded the First Amendment’s guarantee of religious liberty in a case concerning how employment discrimination laws apply in churches and religious schools.
That case featured a concurrence from Justice Samuel A. Alito Jr., who was appointed by the second President Bush, that was joined by Justice Kagan, appointed by Mr. Obama. Such surprising alliances dotted the docket.
Justice Kagan, the newest member of the court, rose in influence. In closely divided cases, she voted with the court’s swing member, Justice Anthony M. Kennedy, more than any other member of the court. Justice Kennedy himself had an unusually balanced term, voting as often with the court’s liberal wing as with its conservative one in 5-to-4 votes along ideological lines.
The court’s unanimous cases were sometimes minimalist. The court found common ground, for instance, in a modest, unsigned decision in a combustible Texas redistricting dispute, one that seemed largely to satisfy both the state and civil rights advocates.
Other unanimous rulings, like the one in the religious liberty case, were more muscular.
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