Supreme Court Term More Liberal Than Expected, ACLU Says

NEW YORK — “The Supreme Court term that ended yesterday was more liberal than many had predicted and stranger than anyone could have anticipated,” said Steven R. Shapiro, the American Civil Liberties Union’s national legal director.

The unexpected death of Justice Antonin Scalia altered the term in dramatic ways and, depending on who is ultimately confirmed to fill his seat, could lead the way to a liberal majority on the Supreme Court for the first time since the Nixon administration. “We may have witnessed not just the end of the term, but the end of an era,” Shapiro said.

Five major civil liberties cases highlighted the court’s docket this year. Two of those cases resulted in important victories during the court’s final week. In Whole Women’s Health v. Hellerstedt, the court struck down two abortion regulations in Texas as an undue burden on women’s reproductive rights in the most important abortion case that the court had decided in nearly a quarter century. In Fisher v. University of Texas at Austin, the court reaffirmed that public universities have a compelling interest in a diverse student body and can seek to achieve that goal by considering race as one factor among many during the admissions process.

Neither the result in Whole Women’s Health nor Fisher would have been possible without Justice Anthony Kennedy, whose vote was difficult to predict. “It is still Justice Kennedy’s court, for the moment at least,” Shapiro said.

Two other cases ended in ties, but with dramatically different consequences. The 4-4 vote in United States v. Texas leaves in place a lower court order blocking the Obama administration from proceeding with its plan to defer deportation for the undocumented parents of children who are American citizens or permanent residents. By contrast, the 4-4 tie in Friedrichs v. California Teachers Ass’n means that states can continue to require that public employees pay their fair share of the cost of negotiating and implementing a collective bargaining agreement even if they choose not to join the union.

Finally, in Zubik v. Burwell, the court avoided a tie in the latest challenge to the Affordable Care Act but only by avoiding the issue it had been asked to resolve. The court did not decide whether the federal government had acted lawfully in crafting an accommodation designed to ensure that women employed by religiously-affiliated nonprofits can receive insurance coverage for their contraceptive care without requiring the employer to pay for that coverage. Rather, the court took the unusual step of proposing a different compromise solution and then asking both the parties and the lower courts to consider it in further proceedings.

It is also worth noting that the court was more sympathetic to criminal defendants this term than it has often been in the past, perhaps reflecting the reexamination of criminal justice policies that is taking place in the country today. The court struck down Florida’s capital punishment law in Hurst v. Florida, and Justice Stephen Breyer continued his forceful advocacy against the death penalty as too arbitrary and discriminatory to be constitutionally tolerated. In Montgomery v. Louisiana, the court ruled that juveniles sentenced to mandatory life without parole before the court held that sentence unconstitutional four years ago are entitled to be resentenced. And, in Foster v. Chatman, the court both exposed and condemned the use of peremptory challenges to exclude prospective jurors on the basis of race.

In a notable exception, the court further weakened the exclusionary rule in Utah v. Strieff by allowing the use of evidence seized after an unconstitutional stop if the police then discover an outstanding arrest warrant. In an impassioned dissent ripped from the headlines (as well as numerous government reports), Justice Sonia Sotomayor highlighted the proliferation of arrest warrants in poor and minority communities for persons unable to pay fines imposed as punishment for minor offenses.

Following Justice Scalia’s death, several justices publicly announced that the court was still capable of functioning with only eight members. That is, of course, true as a technical matter. Still, like any other institution, the court is hobbled when it is not at full strength. “There is a reason there are nine justices,” Shapiro said, “and this term is the reason.”

The full ACLU report on the Supreme Court term can be found at: https://www.aclu.org/defending-our-rights/court-battles/supreme-court