Conservatives take a hit in latest Supreme Court term Attorney says liberals won 10 of 19 5-4 decisions, including the top two 'blockbuster cases'

By Denise M. Champagne

The Daily Record Newswire

ROCHESTER, NY - Not too many U.S. Supreme Court cases were decided in favor of conservatives this past term and the news is not much brighter for the next.

"Grim is a pretty good word," attorney Gregory G. Katsas told members of the Rochester Lawyers Chapter of the Federalist Society. "There is no way to sugar coat this. The October 2014 term of the Supreme Court was a very bad year for conservatives."

Katsas, a partner in the Washington, D.C. office of the international law firm Jones Day, handles complex litigation and has argued in every federal appellate court, including the U.S. Supreme Court in the landmark health care case National Federation of Independent Business v. Sebelius, 567 U.S. __, while he worked for the U.S. Department of Justice. He also clerked for Justice Clarence Thomas during his first term in 1991-92.

"Tom Goldstein and others have said that it was the most liberal term since 1969 and I think that's probably a pretty fair summary of things," Katsas said.

Goldstein is cofounder of SCOTUSblog, the most widely read blog covering the Supreme Court.

Katsas said of the 72 cases decided by the high court, 40 percent of the decisions were unanimous, which he said is low; noting the average for the previous five years was 50 percent. He said 26 percent of the cases were 5-4 decisions, which is above the average of around 20 percent.

Katsas said before last year, the court was often described as a 5-4 conservative majority with Justice Anthony M. Kennedy being the least solid of the conservative votes, but he said it is really a 3-2-4 court with Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas forming a conservative block, Chief Justice John G. Roberts Jr. and Justice Kennedy in the middle and a liberal block of Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan.

"Typically, in a good year, the conservative block would win two to three times as many cases as the liberal block," Katsas said. "In a bad year, it would be sort of evenish. Last term, it was strikingly different."

He said the liberals won 10 of 19 5-4 decisions, with a crossover vote, and what were considered the top five cases in terms of importance, including the top two "blockbuster cases:" Obergefell v. Hodges, which requires all states to recognize same-sex marriages, and King v. Burwell in which the court upheld a portion of the Patient Protection and Affordable Care Act regarding federal subsidies for health insurance purchased on a state or federal exchange. Justice Kennedy was the swing vote in both, with Justice Roberts joining in a 6-3 majority in the latter.

Katsas said Obergefell prohibits every state in the country from adhering to the traditional definition of marriage between one man and one woman, which, until quite recently, had been literally universal.

"As is typical for Justice Kennedy's decisions in this area, this one is long on rhetoric and short on what one might think of as traditional legal reasoning," Katsas said. "There's not a lot of discussion of constitutional text and there's not a lot of discussion about history and tradition, except for Justice Kennedy to make the point that history and tradition are not controlling in his view."

Justice Kennedy also authored three previous decisions having to do with same-sex couples: Romer v. Evans in which the court struck down a Colorado constitutional amendment prohibiting state government from granting special protections to homosexuals; Lawrence v. Texas struck down a statute criminalizing sodomy; and United States v. Windsor, striking down the Defense of Marriage Act.

Katsas said Justice Roberts wrote a forceful principle dissent, calling the decision a profound threat to democracy to have judges overriding the decisions made in a lot of states; some supporting same-sex marriage, some not.

"Justice Scalia writes an even more colorful dissent, sort of mocking the majority's pretentious reasoning and says that the court 'has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of a fortune cookie,'" he said.

Katsas said the implications of the decision going forward will involve the legal status of homosexuals outside of the context of marriage and religious freedom issues.

Justice Roberts, who wrote the opinion in National Federation of Independent Business v. Sebelius, the previous landmark decision dealing with the Affordable Care Act, which Katsas referred to as Obamacare, also wrote for the majority in King v. Burwell.

Katsas said he was surprised Justice Kennedy sided with the liberals in that case; that he had been strongly with the conservatives in the 2012 case.

Rounding out the top five, Katsas outlined:

Arizona State Legislature v. Arizona Independent Redistricting Commission: Upheld the right of Arizona voters to have the people, through the commission and not the Legislature, make redistricting decisions, despite the fact the U.S. Constitution gives the authority to the Legislature in each state.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project: Disparate impact claims are cognizable under the Fair Housing Act, which Katsas called "a very schizophrenic opinion" by Justice Kennedy; "half lauding disparate impact as this broad wonderful theory that allows the federal government to accomplish the grand aims of the Fair Housing Act and then the second half of the opinion is all of this hand wringing about how disparate impact is a very dangerous theory."

Alabama Legislative Black Caucus v. Alabama: The District Court's analysis of the racial gerrymandering claim referring to the state "as a whole," rather than district by district was legally in error.

The term was not a total loss for conservatives. Katsas touched on two cases in particular in which conservatives were victorious:

Michigan v. Environmental Protection Agency: Costs and benefits need to be considered in regulating power plants when "appropriate and necessary" under the Clean Air Act.

Glossip v. Gross: The court's final decision of the term, issued June 29, finding death penalty executions carried out by a three-drug protocol is not cruel and unusual punishment in violation of the Eighth Amendment.

Published: Thu, Jul 23, 2015