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As Recess Settles In, A Reflection On Supreme Court's Big Rulings


From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block. With the Supreme Court now in recess, we thought we'd step back and talk broadly about this term's decisions and what patterns emerged in how the justices voted. To do that, I'm joined by our legal affairs correspondent Nina Totenberg and by attorney Tom Goldstein, co-founder and publisher of SCOTUSblog. Welcome to you both.



BLOCK: There were a few big cases where all nine justices found common ground of some sort. They were unanimous in striking down the buffer zone outside Massachusetts abortion clinics, also unanimous when they struck down recess appointments by the president, and when they said police couldn't search a cell phone without a warrant. Nina, let's start with you. You say that in two of these cases while the vote was 9 to 0, they weren't truly unanimous. What do you mean?

TOTENBERG: Well one of my colleagues, Dahlia Lithwick, calls them faux-nanimous. And that is because they agreed on the bottom line. So in the abortion case, for instance, they agreed that a 35-foot buffer zone was too big and infringed on the rights - the free-speech rights of the protesters. But five justices said, Massachusetts you can go back and create another buffer zone. They didn't specify how big, but they said not that big because you have serious things to worry about - violence at the clinics, etc. Four justices said no, we don't think there can be any buffer zones because any buffer zone violates the free-speech rights of the protesters. So that's really 5-4 but they were unanimous on the bottom line.

BLOCK: They ended up in the same place, got there in a very different way. Tom Goldstein, thoughts on that?

GOLDSTEIN: Yeah. Well, in many respects right now the Supreme Court is kind of like an iceberg - on the surface everything is kind of calm and collected, and right beneath the surface is the potential for disaster. And the justices had what they thought where relatively modest problems to deal with in this term. But you can tell that there are these fissures between them that in the later case will really come to the forefront.

BLOCK: Well, talk about some of those fissures.

GOLDSTEIN: Sure. Well, in the next abortion protest case that isn't one that involves a big 35-foot buffer zone, but asks them to overturn a prior ruling upholding an 8-foot bubble around people approaching a clinic. That's going to make for a huge fight in the Supreme Court. And any number of other questions that come before them where the left was able to come together, for example with Chief Justice Roberts or Justice Kennedy to say we'll do something modest today, but each one of those decisions is an incremental step in a conservative direction. The justices seem to be kind of pacing themselves.

BLOCK: You know, Chief Justice Roberts when he took over as chief justice said that he thought decisions that split the court along ideological lines were bad for the court, bad for the country. He wanted a convergence along narrower opinions that could get a unanimous vote. Do you think that's still the guiding principle, Nina? 'Cause we do see plenty of 5-4 decisions from this court.

TOTENBERG: Well, it's certainly the principle that everybody would like, but you can't get people to change their minds. Another example of this term was the union case just earlier this week, where the court dodged telling public employee unions they couldn't collect some money from non-union members in order to pay for union negotiations. The Supreme Court almost 40 years ago said, you can't be a free rider even if you're not a union member. You're getting the benefit of this contract. But at the same time that the court sort of dodged overruling that decision, it set up the goalposts for the next case and said, come on, come get them.

BLOCK: For a much broader ruling, you're saying?

TOTENBERG: A much broader ruling, absolutely.

BLOCK: Tom Goldstein, there is often in the dissent you can sense a lot of disagreement among the justices on just how broad or how narrow the majority ruling should be interpreted as being.

GOLDSTEIN: Yeah, this is a real dilemma for a justice that disagrees with the outcome of a case. Justice Scalia may rue the day that he said that the court's last gay marriage ruling would inevitably result in a decision legalizing same-sex marriage. And lots of lower court judges have cited his dissent. That came to the forefront this term with a dissent by Justice Ginsburg who said that the court's Hobby Lobby ruling on the contraception mandate was incredibly expansive, notwithstanding Justice Alito's opinion for the court saying no, no, no, no, no, this is just about these employers, this contraception and the Administration can pay for it anyway.

BLOCK: And is that typical? We've seen that in other courts as well?

GOLDSTEIN: Yeah. You can call it handwringing. You can call it waving your arms. You can call it alarm bells. I think the dissent really believes that there's an incredibly important principle at stake here, and they want to make sure that the public's aware of it.

BLOCK: If you step back and think about the worldview, maybe expressed by this court, what are some of the themes that you're seeing, Nina, maybe in terms of how the court used corporations, in particular?

TOTENBERG: Well for me, in some sense, this term is more about religion than corporations. The court has increasingly - this term, made clear that in its view, the separation of church and state does not mean you can't accommodate religious views and the state. And more and more, a majority of this court wants to accommodate religion with the state. It doesn't want a firm wall of separation between church and state. For example, earlier this term, the court said there can be sectarian prayers at town hall meetings. And then in the Hobby Lobby case it said to the government, you can't just make these people, these corporations - and we don't know how big the corporations or how closely held they have to be yet - but you can't make closely held corporations give up their religious views in order to get the benefit of being a corporation and there are considerable benefits of being a corporation.

BLOCK: Tom Goldstein, broad themes that you're seeing from this court.

GOLDSTEIN: We're seeing more and more about technology. The justices had a case in which they had to set the rules for when you can get a patent on computer software, an issue they'd been struggling with for several years. And then probably the big privacy case of the term - whether the government has to get a warrant to search your cell phone when you get arrested. And the justices, in a very broad opinion that was unanimous said, yes, you do have to get a warrant - and went on and on about the importance of privacy in the digital age and how much information all of us have stored out there in the cloud. It was hard not to hear the announcement of that opinion and think that the Chief Justice, when he issued that opinion, wasn't also thinking about things like the NSA metadata program - lots of possible intrusions on our digital lives.

TOTENBERG: Well, the other thing is it was hard to hear the announcement of that opinion and not conclude that every member of the court owns a cell phone, and says, God, I would hope this wouldn't happen to me if I were arrested on a traffic charge or something like that. There is some clear, I think, identification with the person that owns a cell phone who might be stopped and even arrested in this case versus the more traditional kinds of searches involving the war on drugs, where the court was much more willing to have police do searches. And this is a whole different kettle of fish.

BLOCK: Well overall, when you think about the tilt of the Roberts Court, do you see the decisions this term aligning with those of previous terms as the court moving in one direction or the other that you can perceive, Tom?

GOLDSTEIN: Well, I think for 15 or 20 years, as people who've listened to all of Nina's stories have known, you can't deny that the court has consistently been moving to the right. The chief justice really has worked, I think, very hard not to do so in dramatic ways that could create a lot of divisions in the court that might affect the court's reputation in the public - particularly when, this term, they were asked to overturn a whole number of more liberal precedents. And they consistently said no. Now at some point, the rubber's going to hit the road, and they're going to get to the end of these more modest steps to the right. And it will be very interesting to see if they actually have five votes to do something more radical.

BLOCK: Nina.

TOTENBERG: Yeah, I think the chief justice is also very conscious of the court's public image. And he doesn't want it to be viewed as a radically conservative court. But as Tom says, you're going to get to the point where you're going to make some people really furious. I would suggest that Hobby Lobby has already given the Democrats a big tool to fundraise in this election campaign, for example. So the rubber has started to hit the road, it's just not making smoke yet.


BLOCK: Tom Goldstein, founder and publisher of SCOTUSblog. Thanks for coming in.

GOLDSTEIN: Thank you so much.

BLOCK: And our own Nina Totenberg. Thanks.

TOTENBERG: Thank you, Melissa.

SIEGEL: You're listening to ALL THINGS CONSIDERED from NPR News. Transcript provided by NPR, Copyright NPR.

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