Conservative Consolidation

In the sixth term of the Roberts Court the conservative bloc of justices, with the help of the slightly more moderate Justice Anthony Kennedy, consolidated its control over ideologically charged cases. In her second year Justice Sonia Sotomayor quickly found her voice, while Justice Elena Kagan exuded confidence in her first.

Division Persists
Two trends seem to be emerging on the Roberts Court: a high degree of unity on its many cases involving narrow questions of statutory interpretation (more than half of its 84 decisions last term), with increasing polarization on broader statutory or constitutional issues. In the latter type of case the Court continued to divide sharply along ideological lines, and the four-justice conservative bloc secured a majority with Kennedy's aid more frequently than it has in the past (roughly three times more often than he allied with the liberals).

The conservative bloc gained substantial ground in the areas of freedom of religion and freedom of speech. In Arizona Christian School Tuition Organization v. Winn (131 S. Ct. at 1462 (2011)), it substantially narrowed the basis on which a taxpayer can complain about government spending for religious purposes. In a ruling sure to puzzle many accountants, the majority said that spending of tax revenues by the government itself to promote religion can be challenged in court. By contrast, if the government gives a tax credit that the recipients then direct to religious activities, no challenge is possible. Writing her first major dissent for the liberal bloc, the Court's newest (and youngest) member complained that the majority "offers a roadmap ... to any government that wishes to insulate its financing of religious activity from legal challenge." (131 S. Ct. 1436 (Kagan, J., dissenting).)

The conservative bloc also maintained its stubborn resistance to reforms designed to counter the influence of private money in government. It struck down an Arizona law that provided political candidates who accepted public financing with funds to match the money spent by well-heeled candidates and partisan advocacy groups (Arizona Free Enter. Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011)). The majority saw the glass as half empty versus half full-the law would decrease campaign debate because wealthier candidates would muzzle themselves out of fear matching funds would go to their opponents for an answer. Again writing for the dissenters, Kagan said such a view would hold sway only "in a world gone topsy-turvy." (131 S. Ct. at 2833 (Kagan, J., dissenting).)

The conservatives also gained the upper hand in two major decisions likely to dampen the plaintiff bar's enthusiasm for suing major corporations. In one, the majority held that hundreds of thousands of sex discrimination claims asserted by Wal-Mart's female employees had too little in common to permit a class action against the company (Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011)), and in the other it ruled that federal arbitration law prevents states from voiding consumer contract provisions that prohibit class proceedings-effectively preventing consumers from using their collective power to arbitrate complaints against large corporations (AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)).

All this is not to say the liberal bloc came away from the 2010 term empty-handed. Justice Kennedy allied with Kagan, Sotomayor, and Justices Stephen Breyer and Ruth Bader Ginsburg in two major decisions. In an important case from California, the liberals affirmed the ruling of a lower court ordering the release of state prisoners in the event that deficient medical care created by prison overcrowding is not rectified (Brown v. Plata, 131 S. Ct. 1910 (2011)). The ruling incited conservative Justice Antonin Scalia to accuse the majority of upholding "perhaps the most radical injunction ... in our nation's history." (131 S. Ct. at 1950 (Scalia, J., dissenting).) Moreover, in J.D.B. v. North Carolina (131 S. Ct. 2394 (2011)), the liberals held that in some situations minors being questioned by police may be entitled to Miranda warnings against self-incrimination when an adult would not be.

Big Business
In addition to the class action cases, the Court decided a slew of other important disputes affecting business interests (this in itself may speak to the disparate ability of highly paid corporate counsel to get the Court to grant cert). Among key business victories was a ruling that the Clean Air Act displaces federal common law nuisance claims against power companies for greenhouse gas emissions (American Electric Power Co. Inc. v. Connecticut, 131 S. Ct. 2527 (2011)), and the dismissal of a securities fraud claim against a mutual fund company because it did not technically own the fund in question (Janus Capital Group Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011)). But not every case came up roses. A key business defeat was the Court's holding that federal immigration law does not preempt an Arizona statute regulating the hiring of illegal aliens (Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968 (2011)).

Extreme Freedom of Speech?
Despite the framers' very public purpose of protecting the political dissent and debate necessary for healthy self-governance, the Roberts Court seems determined to continue the modern trend of viewing the First Amendment as an individual shield (corporations included, thank you very much) against any sort of common-sense regulation of their expressive activities. Besides saying that the amendment protects deep-pocketed political candidates against the horror of having matching funds provided to their less-well-heeled opponents (see above), the Court valiantly stood up for the rights of video game companies to sell extreme gore to minors without their parents' consent (Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729 (2011)); of protesters to exploit soldiers' private funerals to attract media attention (Snyder v. Phelps, 131 S. Ct. 1207 (2011)); and of pharmacies to sell data on doctors' prescribing practices to drug makers to entice the physicians to prescribe their drugs (Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011)).

Civil Rights or Wrongs?
Those who believe in strong civil rights enforcement will not be pleased with the Court's ruling in Ashcroft v. Al-Kidd (131 S. Ct. 2074 (2011)), in which the conservative majority unnecessarily held as irrelevant government officials' pretextual use of a witness-detainment law to imprison suspected terrorists - as long as those held could reasonably be regarded as witnesses (unnecessary because the Court went on to hold that former Attorney General John Ashcroft enjoyed immunity for such acts in any event). Given these rulings, one may well ask: What happened to the judicial minimalism espoused by Chief Justice John Roberts? Even less endearing is the conservative bloc's ruling that the New Orleans district attorney's office was not liable for intentionally withholding evidence that contributed to the murder conviction of an innocent man who spent 14 years on death row (Connick v. Thompson, 131 S. Ct. 1350 (2011)).

The Ninth Circuit
If the Court's 2010 term is any indication, the improvement in the Ninth Circuit's reversal rate for 2009 appears to have been an aberration. The rate resumed its recent trend of being higher than that for most other courts of appeals. Many of this term's reversals were in the area of criminal justice, where the Supremes expressed pointed frustration at the Ninth Circuit's failure to defer to California court rulings rejecting criminal rights claims. In one notable opinion Justice Kennedy, himself a Californian who also serves as the Ninth Circuit's supervising justice, chided that court for displaying "judicial disregard for ... sound and established principles" in ordering the release of a prisoner from state custody based on an alleged violation of his constitutional rights (Harrington v. Richter, 131 S. Ct. 770, 780 (2011)). And in an unusually frank display of frustration, in a similar case the Court reversed, tartly asserting that the Ninth Circuit's "decision is as inexplicable as it is unexplained." (Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011).) This does not sound like the basis for a rapprochement between these courts - something the previous term hinted might be in the offing.

Barry P. McDonald, a professor of constitutional law at Pepperdine University School of Law, served as a law clerk to the late Chief Justice William H. Rehnquist.

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