Selective Minimalism

by Barry P. McDonald

The fifth term of the Roberts Court featured the chief justice asserting leadership, save for some divisive (and decidedly activist) decisions. Justice Sonia Sotomayor finished her first term, while Justice John Paul Stevens served his last.

Consensus in the Routine
The Roberts Court produced the most unanimous decisions since its inaugural term in 2005 and, for the most part, avoided splitting itself along a sharp 5?4 line. Chief Justice John Roberts was front and center in the effort, recording one of the highest rates of majority voting as well as the lowest rate of authoring separate opinions. The statistics suggest that the chief justice is moderating his conservative predilections in favor of institutional cohesiveness. For example, in two important cases Roberts voted with the Court's liberal bloc: in one taking a very broad view of Congress's power to legislate in areas of traditional state control (U.S. v. Comstock, 130 S. Ct. 1949 (2010)), and in another holding that most life-without-parole prison terms for minors constitute cruel and unusual punishment (Graham v. Florida, 130 S. Ct. 2011 (2010)).

Faux Minimalism?
Although the number of closely divided decisions was relatively low this term, they were marked by a familiar pattern of voting and a notable activist bent. In Citizens United v. FEC (130 S. Ct. 876 (2010)), the conservative bloc ruled broadly that a federal statute restricting corporate spending for political ads in the run-up to elections violated the First Amendment. This result occurred despite the existence of ample grounds for a narrow holding that the statute could not be constitutionally applied to a "mockumentary" about then presidential candidate Hillary Clinton. The decision provoked a rare rebuke of the Court by President Obama in his State of the Union address. It also prompted a separate opinion by the chief justice attempting to justify his vote in favor of the decision despite his professed commitment to a minimalist approach of deciding cases as narrowly as possible.

In McDonald v. Chicago (130 S. Ct. 3020 (2010)), the conservatives expanded exponentially their 2008 gun rights ruling (District of Columbia v. Heller, 128 S. Ct. 2783 (2008)) to reach state and local gun control regulations. The Court characterized the right to keep arms in one's home for self-defense as fundamental despite a number of intervening studies by prominent legal historians casting substantial doubt on this proposition (as well as on the basis for the 2008 ruling). And in Hollingsworth v. Perry (130 S. Ct. 705 (2010)), the conservative bloc issued an unusual rebuke to the district judge presiding over the federal challenge to California's Proposition 8, granting a stay of his decision to allow cameras into the courtroom.

First Amendment
The Roberts Court is certainly willing to wade into difficult free speech issues. This term's decisions, however, bespeak peculiar outcomes. On the one hand, corporations have free speech rights to inundate election eve airwaves with slick commercials to sell their candidate of choice (see Citizens United above), and commercial producers of twisted sexual videos portraying the torture of small animals enjoy the same constitutional protections as any ordinary speaker (U.S. v. Stevens, 130 S. Ct. 1577 (2010)). Yet the Court also ruled that humanitarian lawyers can be criminally punished for counseling peaceful and legal conflict resolution techniques to foreign organizations accused of committing terrorism (Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)), and that public universities can effectively penalize student religious organizations for requiring those wishing to become members or leaders of such groups to share their religious beliefs (Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)). Hmmm. Perhaps those pundits are right who say we need nominees to the Court who have "real world," common sense experience instead of career judges who merely connect the legal dots.

In a major establishment clause ruling for the Roberts Court, the conservative bloc overturned a lower court ruling that Congress's transfer to a private party of a parcel of land housing a war memorial cross in the Mojave Desert did not cure its unconstitutionality (Salazar v. Buono, 130 S. Ct. 1803 (2010)). The positions of the chief justice and Justice Samuel Alito, closely watched since Justice Sandra Day O'Connor retired, indicate that the conservatives now have a majority to push the law in a direction that tolerates increased government involvement in religious activities.

Pro-Business?
The growing reputation of the Roberts Court as being pro-business drew force from several key rulings in addition to Citizens United, discussed above. In two 5?4 decisions dealing with the Federal Arbitration Act, the Court agreed with the business community's positions that challenges to a contract's enforceability can be decided by arbitrators instead of a court (Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2772 (2010)), but arbitrators cannot decide to impose class arbitration on disputants when the contract is silent on that issue (Stolt-Nielsen v. AnimalFeeds Intl. Corp., 130 S. Ct. 1758 (2010)). And in the most anticipated patent ruling in years, the conservative justices ruled that business methods can in theory be patented; the liberal justices would have completely foreclosed such claims (Bilski v. Kappos, 130 S. Ct. 3218 (2010)). Finally, in a criminal appeal stemming from Enron's financial collapse, the Court held unconstitutional an important prosecutorial tool that Congress had created for going after certain types of corporate fraud (Skilling v. U.S., 130 S. Ct. 2896 (2010)).

Criminal Procedure
The Enron appeal notwithstanding, the Roberts Court continued to narrow the rights of criminal defendants, particularly with respect to the Miranda rule, which requires that suspects be advised about their rights prior to questioning by police. The Court held that a suspect's silence would be construed as a waiver of his rights (Berghuis v. Thompkins, 130 S. Ct. 2250 (2010)); that the warning by the police need not be specific about the right to have an attorney present during questioning (Florida v. Powell, 130 S. Ct. 1195 (2010)); and that police may resume the questioning of a suspect who has invoked his rights after a certain period of time has passed since the initial interview (Maryland v. Shatzer, 130 S. Ct. 1215 (2010)).

Finally Getting Some Respect
Reversing a long-standing trend, the Court's rate of overturning Ninth Circuit decisions this term (60 percent) was significantly below prior years as well as its average reversal rate of 71 percent for all decisions. Indeed, seven of the twelve major circuits had higher reversal rates, which is notable since the Ninth Circuit's size means it usually has by far the most cases reviewed. Could it be that the Ninth Circuit is becoming more conservative, or just that it is tired of being the Court's punching bag? Court watchers will have to wait until the next term to see if the trend continues.

Saying Good-bye
If Justice Sotomayor's first term is any indication, her replacement of retired Justice David Souter will have little impact on the ideological tilt of the Court's decisions. Likewise, the replacement of retiring Justice Stevens by Solicitor General Elena Kagan isn't expected to significantly affect the ideological makeup of the Court.

While Justice Stevens's sometimes eclectic writing style may not be greatly missed, surely his sound judgment, gracious manner, and trademark bow ties will be. Chief Justice Roberts was right when he said in the Court's final tribute to Stevens, "We will miss your wisdom, your perceptive insights and vast life experience, your unaffected decency, and resolute commitment to justice."

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

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