U.S. Supreme Court

Erwin Chemerinsky. Photo by Rachel Deletto.

The past year is sure to be regarded as pivotal in the history of the U.S. Supreme Court. The retirement of Anthony Kennedy and his replacement with Brett Kavanaugh likely will shape the court for decades.

In the simplest terms, the effect is to replace an 82-year-old moderate conservative with a 53-year-old who is significantly more conservative. The result is to create the most conservative Supreme Court since the mid-1930s.

From a historical perspective, 2018 is significant because it is the beginning of a new era on the Supreme Court: an era without a swing justice. Eras on the Supreme Court last a long time.

There was an era from the 1890s to 1937 when there was a conservative court that struck down approximately 200 federal, state and local laws, especially those protecting workers and consumers. The next era was from 1937 until 1969, during which there was almost always a majority of justices appointed by Democratic presidents, and the court became increasingly more liberal under the direction of Chief Justice Earl Warren.

The subsequent era began in 1969 with the confirmation of two justices appointed by Richard Nixon, and it continued until Feb. 13, 2016, when Justice Antonin Scalia died. All during this time there were at least five and sometimes as many as eight justices who had been appointed by Republican presidents. But throughout this era, there always was a swing justice—a Lewis Powell, a Sandra Day O’Connor, an Anthony Kennedy—who would join with the more liberal justices in some of the most controversial areas, such as abortion, affirmative action and gay and lesbian rights.

But last year in the Supreme Court, there was no swing justice, and there is not likely to be one for the foreseeable future.

In term that began in October 2017, the Supreme Court decided 59 cases with signed opinions after briefing and oral argument. That is the fewest number since 1864. There were 19 decisions that split 5-4. In 14 of the 19, Justice Kennedy joined with Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito, and Neil M. Gorsuch to create a majority. In none of the 5-4 cases did Justice Kennedy join with Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan to create a majority. The result was that the conservative position prevailed in almost all of the major Supreme Court decisions in 2018.

Replacing Kennedy with the more conservative Kavanaugh means that there will not be a swing justice for the foreseeable future. Chief Justice Roberts is now the “median” justice ideologically, but he is solidly with the conservatives in areas such as abortion, affirmative action and gay and lesbian rights.

This era, too, is likely to last a long time. The five conservative justices are all 70 years old or younger: Thomas, 70; Alito, 68; Roberts, 63; Kavanaugh, 53; Gorsuch, 51.

What will 2018 most be remembered for as to the Supreme Court?

    1. The Kavanaugh confirmation hearings. Apart from replacing Kennedy with Kavanaugh, the Kavanaugh confirmation hearings will be remembered for their drama and their partisan bitterness. Kavanaugh was approved by the closest margin, 50-48, of any justice confirmed in American history. His angry response to the accusation of sexual assault by Christine Blasey Ford was reminiscent of Justice Thomas’ response to Anita Hill’s accusations of sexual harassment. While Thomas expressed his anger in racial terms, calling it a “high-tech lynching for uppity blacks,” Kavanaugh did so in political terms and blamed the accusations on allies of the Clintons. It is impossible to know what these angry hearings will mean for the court’s public credibility or for the future of the confirmation process. But it is clear that in our polarized times, the confirmation process has gotten even more partisan and bitter.

    2. What wasn’t decided, but will be back. The court did not resolve two of the most important issues that were before it in 2018. In Gill v. Whitford, the court was faced with the questions of whether federal courts can hear challenges to partisan gerrymandering and if so, when it violates the Constitution. The court found that the plaintiffs failed to prove that they were personally injured, and thus did not establish their standing to sue. The court remanded the case to the lower court. But the issue is sure to soon come back before the court. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the issue was whether a baker had the right, as a matter of free exercise of religion or free speech, to refuse to design and bake a cake to celebrate a same-sex wedding. The court, though, did not decide these profoundly important questions, instead concluding that some members of the Colorado Civil Rights Commission in this case expressed animus against religion in violation of the free exercise clause. The court, though, will have many other chances to face this issue in cases involving bakers, florists, stationery stores, photographers or others who claim a religious right to violate state public accommodations laws and refuse service to same-sex couples.

    3. Broad presidential power as to immigration. In Trump v. Hawaii, the court, in a 5-4 decision, upheld President Donald Trump’s travel ban, which suspended immigration from seven designated countries. The court came to a different conclusion from every federal circuit and almost every district court that considered the issue. Chief Justice Roberts wrote the opinion for the ideologically divided court. The court concluded that the president has broad statutory authority to decide who to allow in the United States under the 1952 Immigration and Nationality Act. The court also rejected the argument that the travel ban was impermissible religious discrimination against Muslims in violation of the Constitution. Chief Justice Roberts said that because the Constitution gives the president great discretion in the area of immigration, so only rational basis review is to be used. In other words, the presidential action is to be upheld so long as it is rationally related to a legitimate government purpose. Under rational basis review, the government’s actual purpose is irrelevant; there only has to be a conceivable legitimate purpose. This made President Trump’s repeated declaration of wanting to have a “Muslim ban” immaterial. The conceivable purpose of national security was sufficient. Trump v. Hawaii is thus a very significant victory for presidential power in the area of immigration.

    4. “Weaponizing the First Amendment.” In National Institute of Family and Life Advocates v. Becerra, the court, 5-4, said that a preliminary injunction should have been issued against a California law requiring that reproductive health care facilities in the state post notices that the state will provide free and low-cost contraception and abortion for women who economically qualify. The law also required that unlicensed facilities to post a notice that they were not licensed to provide health care in the state. Justice Thomas wrote the opinion for the court, which held that the California law was impermissible speech in violation of the First Amendment. In Janus v. American Federation, the court, again 5-4, overruled a 40-year-old precedent and held that state and local governments cannot force nonunion members to pay the share of union dues that support the collective bargaining activities of the union. In 1977’s Abood v. Detroit Board of Education, the court held that nonunion members benefit from collective bargaining in their wages, hours, and working conditions and should not be able to be “free riders.” The court concluded that nonunion members can be required to pay the share of the union dues that go to support collective bargaining, though not the portion that pays for the political activities of the union. But in Janus, the court, in an opinion by Justice Alito, expressly overruled Abood and said that forcing nonunion members to pay dues for the collective bargaining activities of the union is impermissible compelled speech. This is a serious blow to unions in the 23 states that do not have right to work laws and require nonunion members to pay these agency fees. It also is leading to challenges to other mandatory fees, such as bar dues and student activity fees. Justice Kagan, in dissent, accused the majority of “weaponizing the First Amendment.” She is certainly correct, as these two cases show, that conservatives now are using the First Amendment to challenge progressive social legislation.

    5. Electronic privacy. The most notable victory for the liberal justices was in Carpenter v. United States, where the court held that police must obtain a warrant based on probable cause before obtaining a large amount of stored cellular location information about a person. Timothy Carpenter was a suspect in a series of armed robberies. Police obtained 127 days of stored cellular location information from his cellphone providers. Cellphones constantly contact cell towers, and this this information can be used to pinpoint a person’s location at a moment in time. This was the key evidence against Carpenter and led to his conviction and 116-year prison sentence. But the court, in a 5-4 decision, held that this was a search within the meaning of the Fourth Amendment, and accessing this information should have been based on a warrant founded on probable cause. Chief Justice Roberts wrote for the court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The court stressed the privacy interest a person has in such information. The court, though, left open many questions. What if the police want to obtain real-time information about a person’s location from cellular location information? What if police want a list of all phone numbers connected to a particular cell tower at a specific time? What about the longer-term future of the third-party doctrine, which says there is no reasonable expectation of privacy in information disclosed to a third party?

In conclusion, 2018 was a remarkable year in and about the Supreme Court. It likely is one that will have effects, in many different ways, for years and decades to come.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His new book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in November.