A Supreme Court Scorecard

The recently concluded Supreme Court term is not lacking for sober analysis, so I’ll indulge my freedom to take a different approach. This is an annotated scorecard, a personal take on the term based on what jumps out at me as I look back over the past year.

Most surprising decision: The ruling that struck down California’s ban on the sale of “violent video games” to minors. When the court agreed in April of last year to hear the case, it acted in the absence of a conflict among the lower courts; every court to encounter one of these bans, which have been cropping up over the past several years, had declared it unconstitutional. Almost always, the court waits for a divergence of lower-court decisions to develop before weighing in on an issue. When the court acts in the absence of a conflict, it usually means that four or more justices believe the lower court decision is flat wrong and warrants immediate correction.

In this case, Brown v. Entertainment Merchants Association, the United States Court of Appeals for the Ninth Circuit had found that the California law violated the First Amendment, and by a vote of 7 to 2, the Supreme Court agreed. Even Justice Samuel A. Alito Jr., who in earlier opinions dissenting from rulings that protected hate speech and depictions of animal cruelty had seemed the justice most attentive to arguments about the harms inflicted by unfettered free speech, found the California law unconstitutionally vague. (He did not sign Justice Antonin Scalia’s forcefully libertarian majority opinion.)

Most unusual judicial performance: Justice Alito having forfeited his usual spot on the First Amendment spectrum in the video games case, his place was taken by Justice Stephen G. Breyer, who voted to uphold the statute. Justice Breyer added two appendices to his dissenting opinion, comprising a 14-page list of scientific articles on the psychological harm of playing violent video games. The much longer “Appendix A” listed articles concluding that the games were in fact harmful, while the shorter “Appendix B” listed articles that either did not support or that actually rejected the claim of harm.

Justice Breyer does not employ footnotes in his opinions, and has collected references in appendices with some frequency. His penchant for original research has also occasionally led him outside the record of the case at hand. But the sheer size of this offering, consisting of contradictory articles neither cited to the court by the parties nor vouched for by the justice himself qualifies the Breyer dissent for the distinction of “most unusual judicial performance.”

Least surprising decision: The ruling rejecting the class-action designation for the sex-discrimination suit against Wal-Mart.

Whatever its merits, the nationwide class action on behalf of 1.5 million women (representing “all women employed at any Wal-Mart domestic retail store at any time since Dec. 26, 1998”) was an accident waiting to happen from the minute it showed up on the radar screen of a Supreme Court that is deeply skeptical of litigation, particularly of lawsuits that appear designed to achieve broad policy aims..

One indispensable test of whether a lawsuit may proceed as a class action is whether questions of law or fact are common to all the plaintiffs. In addition to the huge size of the class in Wal-Mart Stores v. Dukes, the essence of the plaintiffs’ complaint made the case vulnerable. The claim was not that Wal-Mart’s policies actively discriminate against women in pay and promotions, but rather that headquarters leaves local managers with too much discretion on those matters. In other words, the problem was said to be not the existence but the absence of a uniform company-wide employment policy. That made the “commonality” requirement hard to meet for those justices not inclined to look too closely – five justices, as it turned out.

Justice Ruth Bader Ginsburg argued in dissent that at the class-certification stage – the point at which a court decides whether a case can go forward at all — no smoking gun is needed. What the Wal-Mart women had in common, she argued – all facing unsupervised bosses who might base personnel judgments on unconscious stereotypes as well as conscious prejudice — mattered more for the class-certification decision than what made the plaintiffs’ individuality. A strong argument, but it would have been a surprise had it prevailed.

Most progressive decision: Undoubtedly the California prison ruling, upholding a lower court’s order requiring the state to remedy drastic overcrowding in its prisons by releasing thousands of inmates if no other way can be found. The 5-to-4 decision, Brown v. Plata, re-validated the role of federal courts in insuring that agencies of government follow the Constitution’s commands – in this instance, despite efforts by Congress to bar the courthouse doors to prison inmates. California’s prisoners, organized in two related class-action lawsuits, prevailed in this case, but the real winner was the rule of law.

Most regressive decision: In a competitive category, I’ll give the nod to a little-noticed decision the court issued just a week ago. By a vote of 5 to 4, with an unsigned opinion speaking for the majority, the court denied a temporary stay of execution to a Texas death-row inmate despite the urgent pleas of the federal government and the government of Mexico.

The inmate, Humberto Leal Garcia, who was executed within hours of the court’s ruling, was a Mexican citizen convicted in 1995 of the kidnapping, rape and murder of a 16-year-old girl. There was no dispute that his conviction was obtained in violation of a treaty to which the United States is a signatory, the Vienna Convention on Consular Relations. The treaty provides that a foreign national who has been charged with a crime must be notified of the right to the assistance of officials of his native country’s consulate. Law enforcement officials in the United States routinely violated this provision, a situation that led in 2004 to a successful lawsuit by Mexico in the International Court of Justice on behalf of 51 Mexicans then on death row in several states. The Bush administration declared that the United States would abide by the judgment.

But in 2008, when one of the 51, Jose Ernesto Medellin, attempted to avoid execution by invoking the consular treaty and the international court’s judgment, the Supreme Court ruled that the treaty was not “self-executing” and was unenforceable in the absence of congressional legislation. There matters stood until last month, when Senator Patrick Leahy, at the behest of the Obama administration, introduced the requisite legislation, the Consular Notification Compliance Act.

With Mr. Leal Garcia’s July 7 execution date approaching, the inmate’s lawyers, the administration, and the Mexican government all urged the court to grant a stay of at least several months to give Congress time to act. Solicitor General Donald B. Verrilli Jr. told the court that the case, Leal Garcia v. Texas, “implicates United States foreign-policy interests of the highest order” and that the execution “would cause irreparable harm to those interests by placing the United States in irremediable breach of its international-law obligation.” American citizens detained abroad might also face consequences as a result, the government warned.

But “our task is to rule on what the law is, not what it might eventually be,” the court’s majority responded. If the bill “had genuinely been a priority for the political branches, it would have been enacted by now.” One might ask: what part of Congress don’t they understand? There was an air of judicial triumphalism to the unsigned opinion, a tone between petulant and scolding more appropriate for use on an annoying teenager than on the president and Congress – or, as Justice Breyer pointed out in dissent, the world. The other dissenters were Justices Ginsburg, Sonia Sotomayor and Elena Kagan.

Term’s Biggest Winner: Justice Kagan. Her prior service as solicitor general required her recusal in so many cases, a third of the total, that it had appeared that she might not be able to make much of an impression during her first term. But to the contrary: a distinctive voice emerged, full-throated and distinctly unbound. True, her most important opinions were dissenting ones. But that’s where justices can be themselves, as Justice Scalia demonstrates repeatedly.

Her most important dissenting opinions came in two cases that will ultimately be seen as signature rulings of the Roberts court. In one, Arizona Christian School Tuition Organization v. Winn, the court denied Arizona taxpayers standing to challenge a complex scheme that channels public money to religious schools. Writing for the four dissenters (if you’ve read this far, you know who they are), Justice Kagan said the majority opinion “offers a roadmap – more truly, just a one-step instruction – to any government that wishes to insulate its financing of religious activity from legal challenge.”

The second case was Arizona Free Enterprise v. Bennett, in which the majority held that the First Amendment barred an innovative voter-approved campaign finance law under which candidates who accept public financing get more money if a privately financed opponent spends more that the initial public funding cap. The purpose of the Arizona Citizens Clean Election Act was to offer candidates an incentive to accept public money without fear of being outspent by a wealthy opponent. Chief Justice John G. Roberts Jr. wrote for the majority that the law placed an unconstitutional burden on the free-speech rights of candidates wishing to spend their own money.

Justice Kagan’s opinion for the four dissenters (yes, those four) amounted to a big “huh?” The law should be celebrated and not condemned because it “subsidizes and so produces more political speech,” she said. “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.” At one point Justice Kagan asserted: “Only one thing is missing from the court’s response: any reasoning to support this conclusion.”

This opinion led Professor Michael Dorf of Cornell Law School to warn in a blog post entitled “Justice Kagan Channels Her Inner Scalia” that the junior justice was veering into Scalia territory: “mean-spirited and a little bit immature.” Elena Kagan has light years to go before catching up to Antonin Scalia in that regard. In the meantime, she will be a force to contend with.

Term’s Biggest Loser: The Fourth Amendment. The court expanded the scope of warrantless searches and continued to whittle away at the exclusionary rule. In the search case, the court found that police officers who smelled marijuana smoke wafting from beneath an apartment door were justified in kicking the door in and entering when, after banging on the door and announcing themselves, they heard scurrying sounds indicating the likely destruction of evidence.

As Professor Orin Kerr of George Washington University Law School pointed out on Scotusblog, the government won the three Fourth Amendment cases in which the court reach the merits by a collective vote of 23 for the government and three for the defendant.

Missing in Action: The court’s voice on Guantanamo. The justices turned down half a dozen opportunities to review how the lower federal courts in the District of Columbia are handling the habeas corpus petitions brought by dozens of detainees at Guantanamo Bay, where the right of access to court that the Supreme Court granted in 2008 has led to relief for only a handful.

Reading the Tea Leaves: Two days after the term ended, the United States Court of Appeals for the Sixth Circuit issued an opinion upholding the constitutionality of the new health care law. It is hard to overstate the importance of Judge Jeffrey S. Sutton’s controlling opinion for the three-judge panel. It would be inaccurate to say that Judge Sutton is a rising star in the conservative legal firmament; the 50-year-old former law clerk to Justice Scalia and the late Justice Lewis F. Powell Jr. is fully risen, on anyone’s short list for the next time a Republican president gets the chance to make a Supreme Court nomination.

His decision rejecting the constitutional attack on the Affordable Care Act did not simply make him the first Republican-appointed judge to uphold the statute. His opinion is an act of intellectual integrity. He treats the attack on the law as weighty and respect-worthy, and then demolishes it. At the heart of the attack on the individual mandate is the claim that the Commerce Clause does not give Congress the authority to regulate “inaction,” i.e. not buying health insurance. “Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power?” Judge Sutton asks. His answer: “No – for several reasons.”

This is not the place to go into those reasons. But in any event, Judge Sutton then renders the “inaction” shibboleth irrelevant, first quoting Warren Buffett on the virtues of inactivity when evaluating financial risk and then declaring: “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk.”

This air-tight opinion, I believe, has taken the air out of the effort to overturn the law and makes it measurably more likely that the Supreme Court will ultimately uphold it. The opinion has not received the public attention it merits, but I can think of nine offices in a marble building on Capitol Hill where it is being scrutinized, actively.