Is The U.S. Supreme Court Headed In New Directions? by [email protected]
Penn’s Theodore Ruger and Georgetown’s Nan Hunter discuss the 2016 term of the U.S. Supreme Court.
This past month, the U.S. Supreme Court delivered several major decisions on pressing issues such as abortion rights, gun control, corruption by politicians and immigration that would have far-reaching effects. In other significant actions, the court made an unusual attempt to forge a settlement between the two sides to a case, and upheld a university’s right to use an assortment of criteria including race to determine student admissions.
The eight-member court also belied concerns that many cases would end in a 4-4 tie. That was thanks in large part to Justice Anthony Kennedy providing his “swing vote” to reach a decision, even if the case went against his personal beliefs. All that underscored the need to find a successor soon to Justice Antonin Scalia, who passed away in February. It also focused attention on the next U.S. president who would name not just Scalia’s successor, but perhaps other Supreme Court justices as well.
The Supreme Court decision of June 27 that struck down a restrictive abortion law in Texas “has the biggest impact on the country,” said Theodore Ruger, dean and professor of law at University of Pennsylvania Law School. He noted that the ruling is important also because it impacts more than 20 other states that have some form of restrictive laws on abortion rights. “What it will do is produce follow-on litigation and a real precedent for abortion rights advocates for challenging [laws in other states],” Ruger added.
Nan Hunter, professor of law and associate dean for graduate programs at Georgetown University Law Center said there were fewer cases than she expected that ended in a deadlock after Scalia’s passing. She expected a 4-4 tie in the abortion decision, and was “glad it came out the way it did.” A tie would have let a lower court’s ruling stand.
Ruger and Hunter discussed the takeaways from the recent Supreme Court rulings on the [email protected] show on Wharton Business Radio on SiriusXM channel 111. Listen to the podcast at the top of this page.
The offending Texas law, called HB2 (for House Bill 2) had compelled about a dozen Texas abortion clinics to close down.
The Supreme Court was strong in striking it down. Justice Ruth Bader Ginsberg said in her concurrence note that “… it is beyond rational belief that HB 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’”
“Justice Kennedy has shown in many decisions that he can function as the statesman of the court because he is the swing vote.”–Nan Hunter
Hunter noted the strong stance of Justice Anthony Kennedy, who she said has had a “mixed record” in his rulings in reproductive rights cases. “Justice Kennedy … saying that these restrictions don’t advance the health of women [and that] they do nothing really except make abortion more and more difficult as a practical matter for women to be able to choose … was a huge step,” she said.
Hunter lauded Kennedy for his role in the abortion case and others. “Justice Kennedy has shown in many decisions that he can function as the statesman of the court because he is the swing vote,” she said. “I’m guessing that he personally is troubled by abortion, but believe what he said [in other cases] that it is not up to the court to adopt one definition of morality, and so the state has to remain neutral.”
Another major Supreme Court decision that has few cheering it is its unanimous 8-0 vote, overturning of the conviction of former Virginia governor Bob McDonnell on corruption charges. McDonnell was accused of receiving gifts and loans, including a Rolex watch, from Jonnie R. Williams, the founder of a Virginia-based drug company, in return for official favors.
Ruger noted that McDonnell set up meetings with key state officials, in addition to providing other favors. “All of us, as a matter of common sense, would agree that if a governor or a top official gives a big company or a big donor access to the key decision makers — say, the head of the FDA for a drug company — with a private meeting, that is giving them something of value in return for that gift, so it certainly feels like a quid pro quo,” he said.
“The bribery statute under which McDonnell was convicted says you can’t take a gift in return for ‘an official act,’” added Ruger. However, the Supreme Court “was very literal and very narrow in its reading” of what constitutes “an official act” and said that would have to be a legal ruling, such as a regulation, a decision, an approval or a disapproval, he added.
“Therefore, all that the governor did to set up these behind-the-scenes meetings were not official acts,” said Ruger of the import of that ruling. “That is going to give many Americans the fear that people of means and corporations can have this unequal access.” Hunter agreed. She said it “touches a nerve in terms of people being angry as they should be about the outsized access that big donors have.”
The McDonnell decision could have a positive fallout, too. The particular law that was open to abroad interpretation could be rewritten by Congress, said Hunter. “The court was saying the statute is so broad that it doesn’t give people fair notice when they cross the line into committing illegal acts; it’s unconstitutionally vague,” she said. “Congress could rewrite the law and define certain terms in certain ways and then it would not be unconstitutionally vague.”
Ruger noted that federal law doesn’t require a quid pro quo of the type in the McDonnell case to make that illegal. It is illegal to accept any gift of above a very low amount — $25 or $50 in aggregate, he said. “We don’t need to worry about federal executive branch officials or members of Congress vis-à-vis this ruling. They will have broken the law the minute they accept the gift, even before they set up the meeting.”
Advantage Gun Control Lobby
Another case — Voisine v. United States — with far-reaching consequences is a 6-2 decision that ruled that anyone convicted of a domestic violence “misdemeanor” can be banned from owning or purchasing a gun. In the case, Stephen Voisine and William Armstrong of Maine, had maintained that their domestic violence record should not prevent them from owning guns. Hunter expected it to trigger “a renewed effort to draw new lines” on gun rights, especially in the aftermath of the June 12 killings of 49 people at an Orlando nightclub.
Significantly, the Supreme Court in June also decided not to hear a challenge to a Connecticut law that bans most semiautomatic rifles. That law had been enacted after the December 2012 shooting of 20 school children and six adult staffers at the Sandy Hook Elementary School in Newtown, Conn. According to Hunter, “States have the right to enact certain kinds of regulations, and that was borne out by court declining to take up the Connecticut case.”
Ruger highlighted another aspect that could gladden gun-control advocates. “There has never been a majority of the court that has said that the Second Amendment precludes reasonable gun regulation,” he said. “That could be gun regulation of individuals who have a domestic violence conviction, or regulation of certain types of fire arms such as semiautomatics. To the extent we hear in our political rhetoric the notion of an absolutely unfettered Second Amendment — that is coming from a few members of Congress [and] from the National Rifle Association.”
“[The ruling in the Bob McDonnell case] is going to give many Americans the fear that people of means and corporations can have this unequal access.”–Theodore Ruger
Two other widely-watched decisions involved immigration and education. A 4-4 tie resulted in a non-decision in a case brought by 27 states challenging President Barack Obama’s efforts on immigration. In 2014 he had announced a program that would have allowed an estimated 11 million undocumented immigrants to apply for a federal program that would give them work permits and protect them from deportation. The non-decision let stand a lower court’s injunction against the president’s executive order.
The court ruling on June 23 in the Fisher v. University of Texas case also drew much attention. It involved the ability of educational institutions to consider the candidate’s entire background in the admissions process. “We were pleased the court kept the law in place and allowed universities to have discretion to consider candidates’ full contextual background,” said Ruger.
Resolving the Tie Breaker
One case involving access to contraception (Zubik v. Burwell) suggested a new approach by the court. In an unsigned, unanimous opinion in May, it sent the case to a court of appeal to consider a possible resolution between the two parties. Hunter found the court’s attempt to settle the case as “remarkable.” Ruger termed it “extraordinary” that in exploring the possibility of a settlement, “the Supreme Court is taking the route that is more typical of federal district judges.” Both Ruger and Hunter said they had expected a tie in the contraception case.
On the Supreme Court’s future, the specter of tied decisions in an eight-member court continued to worry both experts. Ruger said that the situation “underscores the importance of who the next choice of Justice is.” The presidential election outcome is also significant for the court, “since we know the next president will have at least one, more likely more than one, Supreme Court appointment,” he added. He noted that even in cases where Justice Kennedy provided the swing vote, he may have been guided by the fact that it was an eight-justice court. “The identity and the judicial philosophy of the next Justice are critically important,” he said.