Prepared by Stephen Wirth, former Managing Editor of the LII Supreme Court BULLETIN.
Our annual Term in Review highlights the most important and, of course, the most controversial decisions of the recently concluded term of the United States Supreme Court. As is the case most terms, the cases that divided the Court also divided the American public and captured headlines across the country. But perhaps of equal importance are those cases in which the Justices found consensus. This term—more than ever since it took its current form in 2010 with the appointment of Justice Kagan—the Court has spoken with a single voice. Forty-five of seventy cases were decided 9–0 (thirty-four of which by unanimous or per curiam opinion); only eleven divided the court 5–4 (compared to the October 2012 term’s twenty-three 5–4 decisions).
Of those 5–4 decisions, only seven divided along the conventional “liberal” and “conservative” lines (i.e., Justices Ginsburg, Breyer, Sotomayor, and Kagan versus Chief Justice Roberts, and Justices Scalia, Thomas, and Alito, with Justice Kennedy as the deciding vote): Abramski v. United States, Burwell v. Hobby Lobby Stores, Inc., Hall v. Florida, Harris v. Quinn, Town of Greece v. Galloway, McCutcheon v. FEC, and NLRB v. Noel Canning.
To some extent, the relative unanimity of the term reflects the fact that very few of its cases were particularly controversial, divisive, or difficult. Many involved the routine work of any appellate body—correcting errors of lower courts or providing the final word in statutory interpretation—rather than extensive development of the law. Other cases that did raise challenging constitutional issues were ultimately decided on more narrow grounds, which is also not unusual for the Court.
Nonetheless, several areas of the law did see significant doctrinal developments. Notably, religious liberties were implicated in two of the term’s most important cases: Burwell v. Hobby Lobby Stores, Inc. and Town of Greece v. Galloway. In both of those cases, the Court’s conservative bloc joined by Justice Kennedy issued rulings likely to please members of America’s religious majority, allowing closely held corporations to opt out of certain provisions of the ACA on religious grounds and permitting a town to open its board meetings with prayer. In the realm of campaign finance, that same majority continued to dismantle the Bipartisan Campaign Finance Act (also known as McCain–Feingold), striking down the Act’s aggregate limits on political contributions in McCutcheon v. FEC. But the Court found consensus in Riley v. California, unanimously interpreting the Fourth Amendment to prohibit the warrantless search of the digital contents of a cell phone seized incident to an arrest. And in the domain of copyright, the majority in ABC v. Aereo, Inc. held that Aereo’s broadcast-television online-streaming services infringed on copyrights held by broadcast networks and their media-conglomerate parent companies.
In each of these important cases—and in eight of the eleven 5–4 decisions—Chief Justice Robert’s presence in the majority is conspicuous. Indeed, in nearly every case decided this term, Chief Justice Roberts was in the majority, where his role as the Chief Justice allows him to assign the majority author if he does not choose to author the opinion himself. This fact, combined with the abundance of unanimous opinions this term, gives him significant control over the direction of the Court, further distinguishing this Court as the Roberts Court.