October Term 2013
Compromise at the Court Veils Its Rifts
ADAM LIPTAK, The New York Times National Edition, JULY 2, 2014, A1, A17
Photo
From left, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth
Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan in 2013.
CreditImage by Pool photo by Charles Dharapak
WASHINGTON — Two very different group portraits of the Supreme Court emerged
this term, one familiar and one unexpected.
The familiar was on display Monday in two 5-to-4 decisions that were split by angry
divisions and seemed to advance a conservative agenda.
But the more finely drawn portrait takes account of the 67 decisions in argued cases this
term. The court was unanimous about two-thirds of the time, and those cases revealed
signs of compromise and restraint, which many Supreme Court specialists said was a
testament to the leadership of Chief Justice John G. Roberts Jr., 59.
“The chief has done a remarkable job this term navigating divisions and dodging the
most controversial of issues,” said Lisa S. Blatt, a lawyer with Arnold & Porter who
argues frequently before the court.
Chief Justice Roberts, who completed his ninth term, does not get his way by
backslapping or horse-trading, but by writing savvy opinions, making strategic opinion
assignments to the other justices and sometimes working to protect the Supreme Court
from accusations that it is a political institution.
A More Unified Court
This term, the Supreme Court justices voted unanimously in 65 percent of orally argued
cases — the highest share since at least 1953.
Chief Justice Roberts’s handiwork was apparent this term in major rulings onabortion
protests and cellphone searches, both unanimous decisions.
His majority opinion striking down buffer zones around Massachusetts abortion clinics
was much narrower than his earlier First Amendment jurisprudence would have
suggested, narrow enough to attract the votes of all four liberal justices. And he wrote a
muscular opinion for a unanimous court requiring the police to get warrants before they
search the cellphones of people they arrest.
All of the justices are sensitive to the accusation that they are motivated by politics.
The current set of nine justices is, for the first time in history, firmly divided along
partisan lines, with all of the Republican appointees more conservative than all of the
Democratic ones. Their efforts to find common ground may have been partly an attempt
to counter the charge that they are, in Justice Stephen G. Breyer’s words, “nine junior
varsity politicians” motivated by partisan agendas better left to elected officials.
But the number of unanimous decisions — a record for the Roberts court and the
highest percentage since at least 1953 — masked some powerful disagreements, as the
justices often agreed only on the bottom line, as was true in the abortion protest and
recess appointment cases.
What matters most in Supreme Court decisions is what legal principle commanded a
majority, not which side won. Lower courts will apply those principles, and the divisions
about the reasoning supporting decisions can be vital. They mattered so much to Justice
Antonin Scalia that he all but created a new judicial genre — he wrote three furious
concurrences.
The Roberts court’s conservative majority has not retreated from several of its core
concerns. It remains skeptical of campaign finance regulations,efforts to drive religion
from public life and race-conscious decision-making by the government. It remains
solicitous of corporate rights and of efforts to curb union power.
When the chief justice was in the majority in such cases, most decided by narrow
margins, another side of him emerged. In all of them, he wrote or joined opinions that
claimed to be modest extensions of existing law but may well portend wrenching
change.
But the 5-to-4 splits dropped, to just 10. Of those, six featured the classic alignments,
with Justice Anthony M. Kennedy joining either the court’s four more liberal members
or its four more conservative ones. He leaned right two-thirds of the time.
But in a great many cases the justices found ways to agree. This was the fourth term
together for the nine current justices. Its newest members, Justices Sonia Sotomayor
and Elena Kagan, have grown increasingly comfortable in their roles, and all of the
justices seemed, mostly, eager to find common ground with their colleagues.
It did not hurt that the term lacked huge and profoundly divisive cases like those that
ended the last two terms. In June 2012, months before the presidential election, the
court narrowly upheld the Affordable Care Act. In June 2013, the court issued one major
ruling on same-sex marriage but kicked an even bigger question down the road.
The story of the current term was somewhat anticipated in a book published last year by
three political scientists: Pamela C. Corley, Amy Steigerwalt andArtemus Ward. It was
called “The Puzzle of Unanimity: Consensus on the United States Supreme Court.”
It is, after all, not obvious that the justices should ever all agree. The issues that reach
them are complicated and usually susceptible to multiple plausible answers. Lower
courts have almost always given varying answers. The justices themselves have differing
judicial philosophies.
But the justices know that unanimous decisions have more force, which is why they
worked hard to issue them in Brown v. Board of Education, the 1954 school
desegregation case, and United States v. Nixon, the 1974 decision that hastened the end
of the Nixon administration.
Lower courts are less likely to follow divided decisions. But, and here is the bad news for
the current court, there are two ways to be divided. “While dissents are clearly
detrimental to the authority of majority opinions, concurrences can be equally
damaging,” the “Puzzle of Unanimity” authors wrote. “In fact, if a decision of the court is
accompanied by a concurrence that does not support the majority opinion, lower courts
are less likely to comply with it.”
While the court’s level of agreement this term was authentically high, the numbers
overstate the case. “A lot of the unanimity is ersatz,” said David A. Strauss, a law
professor at the University of Chicago.
It is not every day, for instance, that you see a Supreme Court justice reading an angry
concurrence from the bench, as Justice Scalia did last week in the recess appointments
case. (Even oral dissents are rare, issued perhaps four times a term.)
Justice Scalia was similarly dismissive of the majority opinion in the unanimous case on
abortion clinic buffer zones, issued the same day, though he concurred in the result. “I
prefer not to take part in the assembling of an apparent but specious unanimity,” he
wrote.
The majority opinion was written by Chief Justice Roberts and joined by the court’s four
liberals, an exceedingly unusual alignment. It was the same alignment that saved the
Affordable Care Act in 2012.
Justice Scalia was no happier about two other narrow Roberts opinions for the same
coalition plus Justice Kennedy, one avoiding a major decision on the scope of
congressional power in a treaty case, the other rejecting a request to do away
with securities fraud class actions.
Both times, Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. would have gone
much bigger, and they refused to adopt the majority’s reasoning in either case. But
nonetheless the vote counts said the decisions were unanimous.
The court has the luxury, with very few exceptions, of picking the cases it will decide. It
has studiously avoided accepting a Second Amendment case since it established an
individual right to own guns in 2008 and applied it to the states in 2010. It flirted with
hearing an abortion case this term butthought better of it.
All of this means that rates of agreement must be judged against the texture of the term.
Almost 10 percent of the court’s docket was made up of patent cases, for instance, and
all of those decisions were unanimous.
“The higher unanimity rate might reflect an increase in cases with low ideological
stakes,” said Lee Epstein, a law professor and political scientist at Washington
University in St. Louis. “This term, about 36 percent involved questions of rights and
liberties, compared with 57 percent in the three previous terms.”
Justice Kennedy was most often in the majority, though not by much. He was rivaled by
Chief Justice Roberts.
But Justice Kennedy was the only justice in the majority in all of the 5-to-4 decisions.
The six that featured the classic ideological splits were telling.
Justice Kennedy joined the court’s conservative wing in major cases allowing more
money in politics, more religion in official settings, religious liberty rights for
corporations and limits on union power. He joined the court’s liberals in limiting the use
of the death penalty and sustaining the use of a federal gun control law to curb so-called
straw purchases.
Business groups had a good if relatively quiet year at the court. The U.S. Chamber of
Commerce filed briefs in 17 cases decided by signed opinions and was on the winning
side 13 times. “As in past terms, the court continued to curb the worst excesses of the
plaintiffs’ bar and overreach by regulators,” said Lily Fu Claffee, general counsel to the
group. “We consider that a great year.”
The administration suffered stinging losses in several major cases, including ones on
campaign finance, recess appointments and the contraception coverage put in place
under the Affordable Care Act. The court “rejected Obama’s position in nearly all the
high-profile cases of the term,” said Adam Winkler, a law professor at the University of
California, Los Angeles.
But the administration still won 56 percent of the cases in which it was a party,
compared with 39 percent last term, Professor Winkler said. It did even better in cases
in which it had filed supporting briefs, ending up on the winning side 70 percent of the
time.
Some of this may reflect decisions to take fairly conservative positions, notably in the
case on opening town board meetings with a prayer. But the administration did well in
major environmental cases in which it was not obvious that it would prevail.
The current term may have been a chance for the court to catch its breath, said Ms.
Blatt, the lawyer with Arnold & Porter. “They are either resting up and saving their fire
for all of the abortion, guns and gay marriage cases in the lower courts,” she said, “or the
cases this term were simply not as controversial as in the past two years.”
Samuel Issacharoff, a law professor at New York University, cautioned that it was too
soon to declare a new era of harmony and light based on, say, the unanimous votes on
recess appointments and abortion clinic buffer zones.
“No one should confuse these outcomes with a sudden outbreak of Kumbaya fever at the
court,” he said. “The familiar lines of division were in evidence in all these cases. But,
surprisingly, the court found a way to channel its core divisions into compromise
holdings that allowed controversial cases to be settled rather than resolved.”
Correction: July 1, 2014
An earlier version of this article misidentified the member of the Supreme Court who
assigned to Justice Stephen G. Breyer the majority opinion in the court’s recess
appointments decision. It was Justice Anthony M. Kennedy, not Chief Justice John G.
Roberts Jr.
Key Supreme Court Decisions in 2014 - NYTimes.com
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U.S.
Key Supreme Court Decisions in 2014

How the justices decided in major cases during the term ending June 30, 2014, and the implications of
their decisions.
UPDATED June 30, 2014
MAJORITY(FULLCOLOR) / DISSENT (FADED)

June 30, 2014
CONTRACEPTION COVERAGE

Burwell v. Hobby Lobby
THE DECISION 
The court ruled that corporations controlled by religious families cannot be required to
pay for contraception coverage for their female workers.
PREVIOUSLY 
In 2012, the court upheld the centerpiece of the Affordable Care Act by a 5-to-4 vote.
OUTLOOK 
The case may affect many other kinds of religious objections from businesses.

June 30, 2014
PUBLIC UNIONS
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
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Harris v. Quinn
THE DECISION 
The court ruled that some government workers are not required to pay union dues.
PREVIOUSLY 
In 1977, the court said that teachers who declined to join a union could be forced to pay
for its collective bargaining expenses.
OUTLOOK 
The 1977 decision was called into question but not overruled.

June 26, 2014
ABORTION PROTESTS

McCullen v. Coakley
THE DECISION 
The court ruled that buffer zones around abortion clinics in Massachusetts violated the
First Amendment.
PREVIOUSLY 
In 2000, the court upheld similar buffer zones in a case from Colorado.
OUTLOOK 
The court left open the possibility that states may use other methods to address
harrassment and violence at clinics.

June 26, 2014
RECESS APPOINTMENTS

N.L.R.B. v. Noel Canning
THE DECISION 
The court limited but did not eliminate presidential recess appointment powers.
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
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PREVIOUSLY 
Presidents of both parties have long made appointments during brief breaks in the
Senate's work.
OUTLOOK 
Recess appointments remain generally permissible during breaks of 10 days or more.

June 25, 2014
CELLPHONE SEARCHES

Riley v. California
THE DECISION 
The court ruled that the police need warrants to search the cellphones of people they
arrest.
PREVIOUSLY 
The courts have long allowed warrantless searches in connection with arrests. But in
2012 several justices suggested that the era of big data may require a new approach to
privacy rights.
OUTLOOK 
The case will affect millions of arrests every year.

June 25, 2014
STREAMING VIDEO OF BROADCAST TELEVISION

ABC v. Aereo
THE DECISION 
The court ruled that it was unlawful for the Internet start-up to capture and stream
broadcast television signals to subscribers.
PREVIOUSLY 
The court has been wary of shutting down disruptive technologies. In 1984, it refused to
block home video recorders.
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
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OUTLOOK 
The majority said its decision does not affect new technologies like cloud computing.

June 23, 2014
GREENHOUSE GASES

Utility Air v. E.P.A.
THE DECISION 
The court largely upheld the E.P.A's authority to regulate greenhouse gases from
stationary sources like power plants under two permitting programs.
PREVIOUSLY 
In 2007, the court required the E.P.A. to regulate greenhouse gases if it found that they
endangered public health.
OUTLOOK 
The E.P.A. had a good year at the court, but its more ambitious efforts to address climate
change remain open to legal challenges.

May 27, 2014
DEATH PENALTY

Hall v. Florida
THE DECISION 
The court rejected Florida's I.Q. cutoff as too rigid to decide which mentally disabled
people must be spared the death penalty.
PREVIOUSLY 
The case followed and refined a 2002 ruling from the court that banned the execution of
the mentally disabled but left the determination largely to the states.
OUTLOOK 
The decision, which may spare the lives of perhaps 20 death row inmates, is part of the
court's incremental approach to cutting back eligibility for the death penalty. Earlier
decisions had spared juvenile offenders and people who commited crimes other than
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
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murder.

May 5, 2014
RELIGION

Town of Greece v. Galloway
THE DECISION 
The court ruled that town boards may start their meetings with sectarian prayers, rejecting
a First Amendment challenge from residents who said the practice offended them.
PREVIOUSLY 
In 1983, the court upheld the Nebraska Legislature's practice of starting its sessions
with a prayer, saying the practice was "deeply embedded in the history and tradition of this
country."
OUTLOOK 
The decision, along with earlier ones, suggests that the Roberts court is open to a larger
role for religion in public life.

April 22, 2014
AFFIRMATIVE ACTION

Schuette v. BAMN
THE DECISION 
The court upheld a Michigan voter initiative that banned taking account of race in
admissions to the state's public universities.
PREVIOUSLY 
The court has said race-conscious admissions are sometimes constitutionally permissible,
though under increasingly exacting standards. The new decision essentially said the
practice is not constitutionally required.
OUTLOOK 
In 2013, the justices instructed an appeals court to take a fresh look at the University of
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
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BY ADAM LIPTAK and ALICIA PARLAPIANO

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Texas' admissions practices. That case may yet return to the Supreme Court for another
showdown over affirmative action.

April 2, 2014
CAMPAIGN FINANCE

McCutcheon v. Federal Election Commission
THE DECISION 
The court struck down overall limits for contributions from individuals to candidates and
political parties. It did not disturb base limits of $2,600 per election.
PREVIOUSLY 
The court had never before struck down a federal contribution limit.
OUTLOOK 
The Roberts court has been consistently hostile to campaign finance regulation. Experts
say other limits are now at risk, including base contribution limits for individuals, the ban
on corporate contributions (as opposed to the independent expenditures allowed in
Citizens United) and public financing of elections.
Sotomayor
Justice
Kagan
recused
herself
Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito
Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Scalia Thomas Alito