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Analysis

The Supreme Court in 2019: Review and Preview

(Photo of the Supreme Court: Wikimedia Commons; illustration: CJ Ostrosky/POGO)

With the close of the Supreme Court’s most recent term, the Project On Government Oversight (POGO) is examining the decisions that will have long-lasting impacts on issues most important to us, particularly cases relating to separation of powers, government accountability, and mechanisms to safeguard constitutional rights in the future.

While there is a notion that the conservative wing and liberal wing of the Supreme Court vote along party lines, the increase in unique voting line-ups this term shows this is not always the case.

We highlighted these cases in February, and now we’re revisiting them to reflect on some of the voting trends from this term, including a handful of cases where the Supreme Court’s decisions were not as predictable as some commentators may have speculated (including us!). We will also preview some of the cases to watch in the upcoming fall term.

The Cases We Were Watching

In the long-awaited decision to the 2020 census case, Department of Commerce v. New York, the Court ruled that the Commerce Department’s explanation for its attempt to add a citizenship question “seems to have been contrived” and did not meet requirements established by the Administrative Procedure Act. The Court made clear in its decision that, while the Constitution gives the Commerce Department the authority to add a citizenship question to the census, courts also have the authority to review the Department’s actions under the act. POGO had expressed concerns about how the addition of such a hasty and contentious question could affect the accuracy of the results of the census. The Court’s decision was more fractured than most, with three separate concurring opinions that each included a partial dissenting opinion.

Another important case was Cochise Consultancy, Inc. v. United States ex rel. Hunt, dealing with the False Claims Act, a statute that allows the government to recover damages from people or companies that defraud it. This case dealt with the statute’s qui tam provision, which lets individuals sue government contractors on behalf of the government in exchange for a portion of the damages. Cochise, the government contractor in this case, argued that the statute of limitations expired before Billy Joe Hunt filed his lawsuit, but the Supreme Court unanimously held that people pursuing qui tam claims will have up to 10 years to bring such claims under the act.

Bucklew v. Precythe, which addressed the constitutional safeguard against cruel and unusual punishment under the Eighth Amendment, challenged the legality of Missouri’s use of an untested method of execution on a death-row inmate. In an amicus brief that The Constitution Project at POGO helped assemble, former corrections officials asserted that Missouri’s method of execution when paired with the inmate’s unique medical condition would lead to an unacceptable risk of error and unconstitutional infliction of pain during the execution. While the then-newly confirmed Justice Brett Kavanaugh initially made news by appearing skeptical of Missouri’s position during oral argument, he ultimately cast a vote to uphold the state’s method of execution. Writing for the majority, Justice Neil Gorsuch ruled that the Eighth Amendment “forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.”

Food Marketing Institute v. Argus Leader Media also caught our attention. The Court rarely takes cases on the Freedom of Information Act (FOIA)—cases that raise important questions of government accountability and transparency. We had expressed concern about the potential impact of a ruling in this case that could “tip the balance even more against the public’s right to information.” In an opinion authored by Gorsuch, the majority wrote that commercial or financial information submitted to the Agriculture Department by a private party, including petitioner trade association Food Marketing Institute, can be deemed “confidential” and exempt from disclosure under FOIA when it is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.” In effect, the ruling broadened the scope of what documents can be deemed “confidential,” directly impacting the public’s ability to learn about government activities that rely on private company information.

Preview of the Fall 2019 Term

The upcoming term starting this fall will continue to address high-profile issues of public importance. Although the Court will agree to hear more cases in the next few months, here are the ones we will be watching:

In a set of cases that will raise a critical question about executive power, the Supreme Court will take up the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) policy. Department of Homeland Security v. Regents of the University of CaliforniaTrump v. NAACP, and McAleenan v. Vidal will examine whether the DACA policy is judicially reviewable and whether the Department of Homeland Security’s decision to wind down the policy is lawful. The Obama-era policy allows those who were brought into the United States unlawfully as children to receive deferred action from deportation.

In Kahler v. Kansas, the Court will consider whether it is constitutional for a state to entirely abolish the “insanity defense” in criminal cases, examining this question as it pertains to the guarantee of due process and the ban on cruel and unusual punishment. The lawyers for James Kahler, who was convicted of murder, argued in their petition seeking review that Kansas’s approach “defies a fundamental, centuries-old precept of our legal system: People cannot be punished for crimes for which they are not morally culpable.” Currently, states with no insanity defense are the outliers: Only Kansas and three other states—Idaho, Montana, and Utah—have abolished the insanity defense.

In Ramos v. Louisiana, the Court will take on another question dealing with constitutional safeguards in the criminal justice system: Does the Constitution require unanimous jury verdicts in state criminal trials, as it does in federal trials? Although Louisiana revised its state constitution and now does requires unanimous verdicts, this change occurred too late to benefit Evangelisto Ramos, who was found guilty of murder after only 10 of 12 jurors entered a guilty verdict in his trial. Oregon is now the only state that allows non-unanimous verdicts in criminal cases.

In Hernandez v. Mesa, the Court will decide whether U.S. Border Patrol agent Jesus Mesa Jr. can be sued for excessive force for fatally shooting Sergio Hernández, a 15-year-old Mexican boy, from across the U.S.-Mexico border in 2010. This case raises important questions about where constitutional protections apply. This case has already had a long history, including a 2017 Supreme Court decision where the Court sent the case back to the lower courts. The Court’s decision was in light of its earlier decision in Ziglar v. Abbasi, which clarified the circumstances under which a petitioner may sue based on an individual government action for a violation of rights. The Fifth Circuit then sided with Mesa for a second time, finding that this case involved a cross-border shooting in which the underlying constitutional rights are not clearly established. The Fifth Circuit ruled that this fact “should alone require dismissal of the plaintiffs’ damages claims.” Secondly, the Fifth Circuit’s opinion argued that allowing for damage remedies to be awarded by the judicial branch in this case would “interfere with the political branches’ oversight of national security and foreign affairs.” The Court only granted review of the first question, declining to answer the national security question.

In McKinney v. Arizona, the Supreme Court will decide whether a court must apply the law as it exists today or whether it must apply the law as it existed at the time the defendant’s conviction became final. James McKinney was sentenced to death before the Supreme Court held that the Sixth Amendment requires a jury, not a judge, to impose a death sentence. Years later, a federal appeals court ruled that the Arizona courts had erred by not considering evidence that McKinney suffered from post-traumatic stress disorder resulting from childhood abuse, and ordered the Arizona courts to reconsider the sentence. When the Arizona Supreme Court went back to review the sentence, it decided that since the jury requirement didn’t apply when McKinney was first sentenced, it didn’t now—even though many courts around the country have come to the opposite conclusion. McKinney is asking the Supreme Court to address this disagreement among courts and affirm his constitutional right to be sentenced by a jury. The Supreme Court will also decide whether a trial court, and not the Arizona Supreme Court (a court of appeal), should have re-sentenced McKinney.

Mathena v. Malvo is the latest case before the Court concerning the application of the Constitution’s prohibition on cruel and unusual punishment as it applies to offenders who are children. Lee Boyd Malvo was 17 when he committed the offenses, a series of murders that led him to be sentenced to life without parole (the alternative punishment at the time was the death penalty, which the Supreme Court subsequently banned for children in 2005 in Roper v. Simmons). Later, in Miller v. Alabama, the Court held that the Eighth Amendment prohibits sentencing a juvenile to a mandatory sentence of life without parole, noting that the punishment fails to take account of a juvenile offender’s “lessened culpability” and “capacity to change” and constitutes cruel and unusual punishment. The state argues that Malvo’s sentence of life without parole was not mandatory because a Virginia statute give judges the authority to suspend a sentence (something no Virginia judge has ever done in a capital case). The question now before the Court is whether Miller v. Alabama applies to a sentencing scheme like Virginia’s that doesn’t technically make a life without parole sentence mandatory.

Decision-Making at the High Court

While Alexander Hamilton called the judiciary branch the “least dangerous [branch] to the political rights of the Constitution,” the nation’s highest court now plays a central role in the political life of the nation. And because of this—and the partisan warfare that has enveloped the nomination and confirmation process of federal judges and justices—a great deal of public criticism has been levelled at the Supreme Court for decision-making that appears to break along partisan lines. The close of the term offers a chance to take a closer look at the extent to which the Court issued divided decisions and how prevalent disagreement actually is among the justices.

There has been a decrease in unanimous decisions at the Supreme Court over the last three years, but still, the majority of cases this term had at least seven of the justices in the majority opinion, according to an analysis by SCOTUSblog. And while there has also been an uptick in one-vote majority cases over the same three years, they are still not the norm, accounting for less than 30% of decisions this term. Notably, the majority of 5-4 decisions this term (or 5-3 decisions in cases where Kavanaugh recused himself) was just as likely to be comprised of four justices from the so-called “liberal wing” and one justice from the “conservative wing” as it was to be comprised of the five conservative justices, the analysis found. Each of the five conservative justices joined the liberal minority in a 5-4 or 5-3 decision at least once this term, according to an analysis by the website FiveThirtyEight.

In fact, the Court has seen increasingly varied line-ups of justices in the opinions, with 10 different line-ups this term, an increase from every term over the past decade, according to data compiled by SCOTUSblog. Out of the 20 one-vote majority cases this term, Gorsuch was the conservative justice who joined the liberal wing most often, and helped form a majority decision in four separate cases. In the previous term, none of the close cases captured the vote of a single justice from the court’s conservative wing.

The newest justices, Gorsuch and Kavanaugh, have unexpectedly disagreed with each other more frequently than any pair of new justices chosen by the same president in decades. Among their most significant disagreements was on Flowers v. Mississippi, a case addressing racial discrimination during jury selection in a death penalty case (a pernicious issue infecting capital cases). One white prosecutor in Mississippi sought the death penalty for one black defendant at six different trials. In the first three trials, the defendant, Curtis Flowers, was convicted and sentenced to death, but these three convictions were overturned because of prosecutorial misconduct in keeping black jurors out of the jury box. The fourth and fifth trials ended in hung juries. And in the most recent trial, Flowers was convicted. In a majority opinion authored by Kavanaugh, the Court overturned his conviction, ruling that the state had been discriminatory in its jury selection. Throughout the six trials, the State used peremptory strikes against 42 of 43 black prospective jurors. In contrast to Kavanaugh’s stance on the matter, Gorsuch joined Justice Clarence Thomas in his 42-page dissenting opinion arguing that the prosecutor’s behavior was blameless and that the conviction should remain.

While there is a notion that the “conservative wing” and “liberal wing” of the Supreme Court vote along party lines, the increase in unique voting line-ups this term shows this is not always the case. The cases below highlight some of the more unexpected voting combinations:

  • Apple v. Pepper, where Justice Brett Kavanaugh joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (the “liberal wing”) in the majority and also authored the opinion to rule that iPhone owners may sue Apple for its alleged monopolization of the Apple Store under federal antitrust laws.
  • Madison v. Alabama, where Chief Justice John Roberts joined the liberal wing in holding that the Eighth Amendment prohibits executing a person who cannot “rationally understand” the reasons for his execution due to psychosis or dementia. Vernon Madison had several strokes that resulted in vascular dementia, which led to cognitive decline and an inability to remember killing a police officer in 1985. The Court remanded the case to the state court concerning the question of whether Madison could rationally understand the reasons for his execution.
  • Virginia House of Delegates v. Bethune-Hill, where a fractured 5-4 decision found that the Virginia House and its speaker lacked the legal right, or standing, to appeal an order requiring 11 legislative districts within the state to be redrawn. Ginsburg’s majority opinion, joined by Sotomayor and Kagan from the liberal wing and Justices Clarence Thomas and Gorsuch from the conservative wing, left the lower court’s finding intact: that the state’s Republicans had unconstitutionally drawn these districts through racial gerrymandering and must be redrawn.
  • Stokeling v. United States, where Breyer joined Thomas, Justice Samuel Alito, Gorsuch, and Kavanaugh to comprise the majority to hold that the element of “minimal” force under a state robbery statute may constitute sufficient force to trigger a 15-year mandatory minimum sentence under the Armed Career Criminal Act. The statute attaches a mandatory minimum sentence for firearms offenders who have three prior “violent felony” convictions. The question before the Court was whether Denard Stokeling’s conviction under Florida’s robbery statute two decades ago qualified as a prior felony conviction under the Armed Career Criminal Act, even though it only included an element of “minimal” force.
  • Iancu v. Brunetti, where the Court held that prohibiting the registration of “immoral” or “scandalous” trademarks was a First Amendment violation because the Patent and Trademark Office would have to engage in “viewpoint discrimination” to determine which trademarks met these standards. Kagan’s majority opinion was joined by Ginsburg, as well as Thomas, Alito, Gorsuch, and Kavanaugh. Roberts, Breyer, and Sotomayor all concurred in part and dissented in part; each expressed concern that the decision could lead to new trademarks that are considered crude, with Breyer noting that it could lead to public spaces that some people find offensive.

The Chief Justice’s Gambit

The last day of the Supreme Court’s term was marked by issuance of opinions in the two highest-profile cases of the term. Chief Justice John Roberts joined the conservative wing in Rucho v. Common Cause to hold that partisan gerrymandering claims can’t be remedied by federal courts—even in the most extreme of cases. In the second case, Department of Commerce v. New York, Roberts joined the liberal wing to rebuff the Trump Administration’s attempt to add a citizenship question on the 2020 Census. 

Much has been discussed about the fact that the chief justice reserved these last two decisions—both with far-reaching impacts, but with outcomes seen as victories for opposing sides—for the final day of the Court’s term. Thus, as one constitutional law professor noted, the chief justice seems to believe that “the correct decision is one where he splits the proverbial baby” when it came to the final cases of the term.

In issuing the decisions to both cases at the end of the term, perhaps Roberts was attempting to leave a lasting impression with the public that the Supreme Court bases its decisions on the law, not on party politics. Time will tell if the chief justice’s bid to help to preserve the legitimacy of the Court in the eyes of Americans will pay off.