The Supreme Court in 2013

My review of Supreme court cases decided in 2013 reveals that the liberal/conservative split is still alive and well. For purposes of this review I break down the justices as follows: the three liberals, which are the three women, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg; the three conservatives, Antonin Scalia, Clarence Thomas, and Samuel Alito; and the three in the middle, Stephen Breyer, who tends to vote with the liberals, John Roberts, who tends to vote with the conservatives, and Anthony Kennedy, who is right in the middle, and so is often the swing vote.

I looked in depth at ten cases from 2013. Let's start with the five in which the liberal/conservative split was exactly as stated above, with Kennedy providing the deciding vote. In Clapper v. Amnesty International, Kennedy sided with the conservatives in denying standing to a group of professionals who were challenging the new FISA law allowing government surveillance of communications between U.S. citizens and people in other countries, the problem being that the plaintiffs had no direct evidence that any of their communications had been intercepted. The four liberals dissented, stating that there was a "very high likelihood" that some of the plaintiffs' communications would be intercepted under the FISA law. The dissenters went to point out that "certainty is not, and never has been, the touchstone of standing".

Then we saw Kennedy siding with the liberals in Peough v. United States, a case challenging the new and tougher sentencing guidelines as an ex post facto law. The dissent argued that the guidelines were only advisory and not mandatory, and, since the sentence given was within the trial court's discretion under either set of guidelines, it should not be disturbed on appeal.

Kennedy sided with the conservatives in Salinas v. Texas, a case in which the prosecutor was allowed to comment to the jury on the defendant's silence when asked whether his shotgun "would match the shells recovered at the scene of the murder". After answering questions up to that point, he suddenly became very nervous and clammed up. The conservative majority rejected defendant's fifth amendment claim because he did not invoke the privilege against self-incrimination. Thomas and Scalia would go even further, saying his silence could be used against him even if he had invoked the privilege, because "the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony".

Kennedy aligned with the liberals in US v. Windsor, a case challenging the Defense of Marriage Act. Here the four conservatives wanted to deny standing, since the government had declined to defend the DOMA law before the high court.

Kennedy was again with the conservatives in Shelby County v. Holder, a case challenging the Voting Rights Act of 1965. Here the conservatives essentially substituted their judgment for that of Congress, which had just reauthorized the Act for another 25 years in 2006, following extensive hearings which had demonstrated that the need for it still existed. Yet, these so-called "conservatives" found the Act unconstitutional.

In three 4th amendment search and seizure cases, 2013 saw the interesting alignment of Scalia siding with the three most liberal members of the court. In Missouri v. McNeely, the court considered the question of whether a warrantless blood test of an individual arrested for DUI was OK as a matter of course. The court held it was not, saying that the normal test of exigent circumstances had to be applied before it would pass constitutional muster. Scalia sided with the three liberals in the main opinion, while Kennedy, Breyer, Roberts and Alito concurred in the result, but not in the court's reasoning used to reach that result. Thomas stamped himself as clearly the court's most conservative member by being the lone dissenter; he felt that exigent circumstances existed in every DUI case, due to the lessening of blood alcohol levels in the body over time.

In Maryland v. King, the court faced the issue of whether it was proper for a state to take a DNA sample from everyone arrested for a serious crime. The majority felt it was OK, saying it was part of the identification process, just like fingerprinting and photographing. Scalia wrote a  blistering dissent, and was joined by the three liberals in his dissent.

Scalia's dissent is absolutely fascinating. He does not follow the normal custom of saying he is "respectfully" dissenting. Rather, he makes it clear that he has no respect at all for the majority opinion, saying "it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error." He ends his opinion by saying that 'I therefore dissent, and hope that today's incursion upon the fourth Amendment, like an earlier one, will some day be repudiated."

Scalia undertakes an analysis of the Maryland law in question, and absolutely destroys the majority's position that the purpose of the DNA sample is for identification purposes. Rather, Scalia shows that the purpose is to conduct what he calls a "suspicionless search". Scalia asserts, correctly I think, that "No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving." So thoroughly does Scalia eviscerate the majority position, that one is left with the thought that if a law student were to submit the majority opinion as a paper, he or she would surely flunk.

So, what are we to make of Scalia's alliance with the liberals on these search and seizure cases? To me, it looks like Scalia simply takes the text of the constitution quite seriously. Indeed, he quotes the language of the fourth amendment, and goes on to examine the reasons for the adoption of the amendment. He states that the American colonists despised the British practice of using "general warrants", meaning warrants that did not specify who was to be searched, what places were to be searched, and what was being looked for in the search.

It should be noted in passing that the liberals lost this case only because Justice Breyer defected and voted with the conservatives. Usually when Breyer, or his conservative counterpart, Chief Justice Roberts, defects like this they will write a concurring opinion explaining their rationale. Breyer did not do so in Maryland v. King, so we are left to wonder about why he abandoned his liberal colleagues in this case.

In Florida v. Jardines, we see an even stranger juxtaposition of the justices in a search and seizure case. In this case, the police had an anonymous tip about drugs in a particular house, so they took a drug-sniffing dog onto the porch. After the dog alerted, they obtained a warrant and searched the house. The issue, therefore, was whether the initial intrusion onto the porch was justified.

Here again, Scalia wrote an opinion in which he was joined by the three liberals. Here, though, it was the majority opinion, since Justice Thomas joined in. Why Justice Thomas believed the Fourth Amendment meant something in this case and not the other two is unexplained, since he did not write a concurring opinion. Justice Kagan did write a concurring opinion, joined by her female colleagues, explaining that she felt the better approach was to rest the decision on privacy grounds, rather than on property rights. Breyer again broke with his liberal colleagues, but without explanation, as he simply joined in the dissenting opinion written by Justice Alito.

In Fisher v. University of Texas, the court was confronted with the issue of whether a university can use race as a factor in admitting students. The court ruled that strict scrutiny needed to be applied, and sent it back to the lower court to apply the strict scrutiny standard. Scalia and Thomas concurred in the result, but wrote separate opinions making it clear that for them race could absolutely not be considered,  and a prior Supreme Court ruling to the contrary should be overruled. The only dissenter was Ginsburg, but it should be noted that Kagan did not take part in the case.

In Hollingsworth v. Perry, the court considered the legitimacy of California's ballot initiative amending the state's constitution to ban same-sex marriage. Since the state had chosen not to defend that law, a majority of the court felt that the ballot initiative proponents who had taken up the cause did not have standing. The four dissenters were an odd mix: Kennedy, Thomas, Alito and Sotomayor. This odd mixture makes some sense, though, since each might have had a different reason for wanting the case decided on the merits, instead of on the standing issue.

It seems odd that standing was an important issue in no less than three of the above cases. One would think that such a basic concept would have been well-settled by now. It seems to reflect the reluctance of the court to deal with certain hard issues. But why take up the case at all if you are just going to cop out and say there is no standing to decide it?