At the end of July, I had the opportunity to attend the Supreme Court Law Review offered by the Practising Law Institute (PLI), a nonprofit continuing legal education and professional business training organization. PLI is bronze sponsor of Pro Bono Net’s work and Pro Bono Net is pleased to promote PLI’s efforts to provide pro bono training for the access to justice community, reflecting its deep commitment to the public service work of the legal profession.
The focus of this year’s Supreme Court Review was on the tendency for this Court to make liberal leaning decisions while the conservative Justices Roberts, Kennedy, Alito, Thomas and Scalia hold the majority of seats. This year saw a fair share of conservative Justices vote with the liberal minority on decisions that have greatly affected the US population. The opening presenter, Dean Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine, warned participants not to be deceived into believing that Justice Roberts now leads a liberal court, but that we’ve only had a more liberal year than usual.
Why are we seeing such a liberal year when the conservatives hold the majority of seats? According to Chemerinsky, the reason lies within the cohesiveness of the liberal Justices Ginsberg, Sotomayor, Breyer and Kagan. With the four liberal Justices voting almost exclusively as a block, they need only sway one other justice in order to gain the majority on a decision. So who has been voting with the liberal block?
Justice Kennedy has, several times this year, sided with the liberals. On occasion both Roberts and Thomas have defected to create a majority vote. But, when it comes down to it, it is the case itself that will determine the decision of the court. The panelists discussed a myriad of cases that exemplified this, but three stand out: Obergefell v. Hodges, King v. Burwell, and Walker v. Texas Division, Sons of Confederate Veterans.
As is widely known by now, Obergefell v. Hodges has effectively made it illegal to deny same sex couples the right to a marriage license. The majority for this decision was reached by the four liberal Justices and Justice Kennedy. In fact, Kennedy wrote the Opinion of the Court, primarily stating that marriage is a fundamental right which are afforded to all citizens without discrimination. While his opinion garnered much criticism from the writers of the dissenting opinions, Kennedy’s opinion was fully supported by the four liberal judges.
Justice Kennedy’s decision was not necessarily based on liberal principles, but rather acknowledged that the Court had protected the right to marry as a fundamental right for a long time, therefore making it protected under the due process and equal protection clauses. Chemerinsky warns that while Kennedy sided with the liberals on this particular case and others this year, he has also voted with the more conservative view point in other cases. It really comes down to the arguments of the case.
There have been several cases in the Supreme Court concerning the Affordable Care Act. King v Burwell specifically focused on the ability for citizens to utilize tax-credit subsidies when purchasing healthcare insurance through the federal exchanges. Since the text surrounding the eligibility of these subsidies discusses state exchanges and doesn’t make specific mention of eligibility in the federal exchange, the states claimed that those purchasing healthcare coverage from the federal exchange were ineligible for the assistance. However, this would mean that a state could deny their constituencies the ability to qualify for the assistance program simply by refusing to create their own state exchange.
The Court ruled in favor of the United States by 6-3. Who were the two conservative Justices to side with the liberals? Justices Roberts and Kennedy both decided to uphold the eligibility of low income households to access these tax-credit subsidies when purchasing through the federal exchanges. Their decision was based on the purpose of the law regarding those subsidies. They agreed that the purpose of the law was to assist low income individuals to afford health care coverage regardless of the actions of the States. Again we see a decision being made on the substance of the law that placed all four liberal Justices on the same side, along with two of the conservative Justices.
However, neither Kennedy nor Roberts voted with the liberal Justices in Walker v Texas Division, Sons of Confederate Veterans. Justice Thomas sided with the majority on this case, to the surprise of many. The court was tasked with deciding whether the state government of Texas refusing to issue a requested Confederate Battle Flag license plate option infringed on the freedom of speech of those wishing to have those license plates. The Court decided that the license plates, in this case, indicate a level of government speech, which by nature cannot be in violation of the first amendment.
In the end, it seems Chemerinsky’s version of events holds weight. While the liberal Justices tend to agree with each other, making a strong voting block possible, the conservative judges have disagreed on various issues. This is not to say that they won’t be able to create a solid voting block in the future. This year we have seen cases that attempted to split the court along party lines, only to have the merits of the case favor a more liberal decision. Next year’s cases may see a stronger cohesiveness on the conservative side. Chemerinsky’s warning to essentially ‘not get comfortable’ definitely seems like good advice.
The Practicing Law Institute provides some of the best panelists to provide insights. The panelists for this conference included the following:
- Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
- Joan Biskupic, Editor-in-Charge for Legal Affairs, Reuters News
- Professor Michael C. Dorf, Professor of Law, Cornell Law School
- Professor Leon Friedman, Special Professor of Civil Liberties Law, Hofstra Law School
- Professor Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law; Founding Legal Director, Brennan Center for Justice
- Professor (Emeritus) Martin A. Schwartz, Chair, Practicing Law Institute’s program on Section 1983 Civil Rights Litigation and Trial Evidence
- Kannon K. Shanmugam, Partner, Williams & Connolly LLP
- Jeffrey B. Wall, Co-Head Appellate Litigation Practice, Sullivan & Cromwell LLP
- Professor Sherry F. Colb, Professor of Law & Charles Evans Hughes Scholar, Cornell Law School
At the core of Practising Law Institute’s mission is its commitment to offer training to members of the legal profession to support their pro bono service. PLI offers pro bono training, scholarships, and access to live programs, Webcasts, and On-Demand archived programs, as well as an extensive Pro Bono Membership program. For more information about PLI’s pro bono programs and activities, please visit www.pli.edu/probono. Follow PLI’s Pro Bono Group on LinkedIn, and on Twitter@ProBonoPLI.