The justices have retired their robes for the summer (and the interns, their running shoes), after handing down decisions on issues ranging from Obamacare to affirmative action, campaign finance to school prayer. This term lacked a blockbuster decision like the court’s overturn of the Defense of Marriage Act last year or its upholding of the Affordable Care Act the year before that, so amid the back-and-forth about what the court’s 144 opinions this term really mean, we decided to pose a simpler, bigger-picture question to some of the best legal thinkers around the country: How has the Supreme Court changed America this term?

Some argued that the Roberts Court pushed the country farther to the right, while others noted the relatively low number of 5–4 decisions and high number of unanimous ones—perhaps a sign of diminished partisanship this year. Still others homed in on particular legal issues, citing the court’s commitment to freedom of speech and religion and to the right to privacy, or particular cases with the broadest political or social impact— McCutcheon, Hobby Lobby and Riley v. California seemed to top the list. Then again, there were those who thought the 2013-2014 term was a bit of a shrug. “For the most part, the Supreme Court didn’t rock the boat,” writes one. But for most, it was another year of big decisions—and big consequences for Americans.


Jeffrey Rosen

President and CEO of the National Constitution Center in Philadelphia, law professor at George Washington University and legal affairs editor of the New Republic

This term, the Roberts Court gave America a glimmer of bipartisan unanimity, an example of how members of one branch of the federal government can, at least some of time, set aside their ideological agendas for the good of the country.

The term ended, of course, with two high profile 5–4 decisions split along familiar ideological lines, involving the religious liberty rights of corporations and the rights of unions. And throughout the year, there were other 5–4 splits on campaign finance and school prayer.

But overall, only 14 percent of the cases involved 5–4 decisions—the lowest percentage since Chief Justice Roberts took the helm of the court in 2005. And 65 percent of the cases this term were unanimous—the highest such percentage since the 1940s.

These unanimous cases included a landmark decision translating the Fourth Amendment into a digital age and recognizing that the police can’t search our cellphones on arrest without a warrant. In that 9–0 case, Riley v. California, Chief Justice Roberts inspiringly compared blanket surveillance to the general warrants that sparked the American Revolution. Other unanimous cases involved presidential recess appointments and the First Amendment rights of abortion protesters.

This unanimity is a tribute to Chief Justice Roberts, who came to the court pledging to try to persuade his colleagues to converge around narrow unanimous opinions, and to set aside their ideological agendas in the interests of preserving the court’s bipartisan legitimacy. Roberts said it would be good for the court and good for the country to see the Supreme Court achieving consensus rather than division in a polarized age. This term, Roberts came closer to achieving his vision, and America is better for it.

Cass Sunstein

Robert Walmsley university professor at Harvard Law School

The most important Supreme Court decision of the 2013 term may well be EPA v. Homer City, which upheld the Environmental Protection Agency’s cross-state air pollution rule. The lower court invalidated the rule on the grounds that it violates the Clean Air Act. The Supreme Court disagreed, emphasizing that the EPA has discretion to take costs into account when it decides how to proceed.

The case is a bit of a sleeper, but it is extraordinarily important, for two reasons. (Disclosure: As administrator of the White House Office of Information and Regulatory Affairs, I worked on this rule during the first term of the Obama administration.) First, the rule promises to deliver massive public health benefits. By reducing the risk that pollution in one state could produce health problems in other states, the rule is projected to prevent, each year, between 13,000 and 34,000 premature deaths; 15,000 nonfatal heart attacks; 19,000 hospital and emergency room visits; and 1.8 million lost work-days or school absences. Second, the court strongly affirmed the EPA’s authority—where Congress has been silent or ambiguous—to consider costs in implementing environmental laws. At a time when federal agencies often have to balance environmental and economic factors, that is significant—and something to celebrate.

In recent weeks, people have been giving a lot of attention to the EPA’s efforts to regulate greenhouse gases, and to the court’s decision that largely affirmed the agency’s authority to do so. That’s a big ruling, to be sure, but because of its many contributions to public health, the largely overlooked decision in Homer City is bigger still. There’s a pretty good argument that it’s the most important of the 2013 term.

Michael Waldman

President of the Brennan Center for Justice at New York University School of Law

Often, the Roberts Court treads carefully. When unanimous, it can take a strong stand, as in its welcome ruling on cellphone privacy. Other times, it edges forward incrementally. But give the justices a chance to undermine American democracy? Go for it! Seven times in recent years, always voting 5–4, the justices upended laws to curb big money’s power over elections. No nod to judicial minimalism here.

This year’s decision: McCutcheon v. FEC, which struck down a federal contribution cap for the first time. “‘Ingratiation and access … are not corruption,’” Chief Justice John Roberts wrote, citing the court’s 2010 Citizens United decision, before adding, “They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.” Call this a Freudian slip opinion. By definition, contributors from all over the country are not constituents.

At least the court gave us the gift of clarity. Campaign finance law is in tatters. Only rules barring outright bribery (think Abscam or American Hustle) seem safe. Those who believe the Constitution supports a robust self-governing democracy now must build for the long term. Justice Stephen Breyer and three other McCutcheon dissenters asserted that “integrity of our electoral processes” justify strong laws. They point toward an era when the court again upholds core tenets of democracy—assuming there’s much democracy left.

Dahlia Lithwick

A writer on courts and the law for Slate

It is always dangerous to offer a sweeping assessment of a whole term on no sleep and gallons of caffeine, but it seems that there are a few general trends worth highlighting in the 2013 term:

The Roberts Court is really, really conservative: In case after case—ending up with the blockbuster Hobby Lobby decision pitting the contraception mandate of the Affordable Care Act against religious liberties, and Harris v Quinn, taking the court one step closer to eviscerating public sector unions—the court has revealed that the substitution of Samuel Alito for Sandra Day O’Connor has launched an inexorable march rightward on questions including campaign finance, reproductive freedom, church-state boundaries and affirmative action. On each of these issues, this term, the court inched rightward.

But it’s not as conservative as it could be: While the above statement is true, it’s also true that in case after case, from the unions case to McCullen, the abortion buffers challenge, to the recess appointments case handed down last week, the court could have swung for the fences, and didn’t. It went for the double, sometimes the single. The shifts in many areas have been incremental, netting out to big wins in the aggregate for business, free speech advocates and fans of religious liberty. But more often than not, particularly in a term marked by staggering numbers of unanimous cases, the shift involves moving the goalpost, tweaking a test and kicking the can down the road. This is a marathon for the Roberts Court, not a sprint.

Where Kennedy goes… It’s still Anthony Kennedy’s court, in large ways and small, and—as his concurrence in Monday’s Hobby Lobby decision shows— he is still the moderating influence at the center of the court, and an MVP when it comes to deciding when to decide a case and when to wait and see what’s coming up the pike.

This is a court that is wildly protective of free speech and worrisome in its tendency to treat women as fragile flowers in need of a hand on the elbow. (I’m looking at you, abortion counselors and Hobby Lobby.) It’s a court that has all but abandoned originalism and embraced a new kind of pragmatism, and is clearly striving, under the deft hand of Chief Justice John Roberts, to transcend the rancorous polarization that has infected our politics. This is a court still struggling with new technologies but catching up nicely on the care and feeding of cellphones. It is a court in which the liberal and conservative factions often fail to see how the other half lives; and in which all the justices sometimes fail to see how the rest of us live. In sum, it’s a court that generally delights conservatives and terrifies liberals less than it might have. It is, in short, the Roberts Court. Again.

Orin Kerr

Fred C. Stevenson research professor of Law at George Washington University Law School

The Supreme Court hasn’t changed America this term. It was a pretty quiet term, with mostly narrow decisions and less division than in recent years. For the most part, the Supreme Court didn’t rock the boat.

And that’s not a bad thing. At his confirmation hearing in 2005, Chief Justice John Roberts famously compared judging to being an umpire. Some have misunderstood Roberts as claiming that judging is easy or mechanical. But if you read his words closely, Roberts was saying that judges shouldn’t be the center of attention: “Nobody ever went to a ball game to see the umpire.” Like an umpire, a judge should have an important but limited role.

The Supreme Court was more or less faithful to that limited role this term. The story of the term was that the court wasn’t a big story.

Laurence Tribe

Carl M. Loeb university professor at Harvard Law School

In a year in which the high court weighed in on presidential appointment power, public unions, abortion and religious freedom, many observers will say that the court is reshaping our politics and culture with sweeping pronouncements that inject it squarely into the most salient, controversial issues of the day. Although calmer heads will no doubt note that its pronouncements this term are not as far-reaching or transformative as they might initially seem, nobody should underestimate the long-term implications of its recent decisions. The Supreme Court often moves slowly and incrementally, and the full meaning of its decisions becomes clear only over time.

This term’s biggest decisions, rather than fundamentally altering our cultural and political landscape in one fell swoop, displayed a cautious incrementalism. McCutcheon took another bite out of campaign finance reform, but the foundational decisions allowing Congress to regulate campaign contributions remain standing—for now. McCullen said anti-abortion protesters can’t be barred from a 35-foot zone surrounding abortion clinics—but it left open and uncertain the extent to which they can be regulated. Harris said that home healthcare workers couldn’t be forced to pay union fees, but it didn’t overrule the decades-old decision upholding these fees for full-fledged public employees, like police officers and teachers. Hobby Lobby exempted some corporations from paying for employees’ contraception under the Affordable Care Act. But the decision applied only to closely held corporations, suggesting that it might have come out otherwise if Congress hadn’t provided a path for the administration to ensure that women’s health care needs would be fully covered by public funds even if their employers opt out. The decision also left unclear how far it extends beyond the contraceptive mandate, if at all. Finally, Noel Canning ruled that it was unconstitutional for the president to use his recess appointment powers when the Senate said that it was still in session, but the decision allowed the president to make intrasession recess appointments when the Senate is not formally in session.

There is reason to believe, however, that these incremental decisions may well portend dramatic changes a few cases down the road. And indeed, this was true in the case of Shelby County from last term, in which the Court relied heavily on a narrow 2009 decision, Northwest Austin, that chipped away at the Voting Rights Act. Thus, there are those who see in Hobby Lobby a willingness to leave women’s health care uncovered if a future administration doesn’t step up to the plate with government funding, and who see in that decision the seeds of a rule permitting corporations to discriminate against LGBT employees under the guise of religious expression. And there are those who see in Harris a first step toward fully destroying public unions.

There is no denying that each of these decisions, in its way, moved the needle of the court’s jurisprudence toward the right and that, used strategically, each could help create future transformations. Indeed, I note in my latest book, Uncertain Justice: The Roberts Court and The Constitution (coauthored with Joshua Matz), that Supreme Court decisions can often function like moves in a complex chess game—set up for the eventual check-mate many moves down the line.

But it’s a long game the court seems to be playing. The Roberts Court seems less willing to reshape our social landscape radically than the Burger Court appears to have been with Roe v. Wade in 1973. Look how in the past year lower courts, legislatures and voters have worked in concert to bring same-sex marriage to many states rapidly—something the Supreme Court could have done in one fell swoop last term with a broad ruling in Perry, and that it might finally be ready to do in the coming term. These incremental decisions again show a cautious court playing a part—and not a solo—in the symphony of American government.

Erwin Chemerinsky

Dean of the University of California Irvine School of Law and Raymond Pryke professor of First Amendment law

The Supreme Court’s decisions will have a practical effect in many ways, but even more important, the decisions are an open invitation to litigation that might have even greater effects.

Some cases will have an immediate impact. Town of Greece v. Galloway, which upheld explicitly Christian prayers before town board meetings, will mean that in many places throughout the country—school board meetings, park commission meetings, town board meetings, city council meetings—there will be Christian prayers. Riley v. California means that police no longer can look at the contents of an arrested person’s cell phone unless there is a warrant or emergency circumstances.

But so many other cases will lead to more litigation. McCutcheon v. Federal Election Commission, which struck down aggregate contribution limits, will lead to challenges to federal, state and local contribution limits. McCullen v. Coakley, which invalidated a Massachusetts law that creates a 35-foot buffer zone around reproductive health care facilities, will lead to challenges to buffer zones that exist around military funerals, cemeteries, places of worship and health care facilities. Burwell v. Hobby Lobby, which held that it violates the Religious Freedom Restoration Act to require a closely held corporation provide insurance coverage for women employees for contraceptives, will lead to challenges by corporations to many other laws on religious grounds. The rulings may be have been narrow, but the potential implications are broad.

Theodore J. Boutrous Jr.

Partner at Gibson, Dunn & Crutcher and co-chair of the firm’s Appellate and Constitutional Law Group, Crisis Management Group and Transnational Litigation Group

The court’s jurisprudence this term changed America in rulings focusing on technology and speech.

The court recognized the importance of technological innovation, protecting both the inventors who create new technologies and the consumers who use them. For example, the court ensured better patents by making clear in Alice v. CLS Bank that patents protect only truly innovative technology and cannot monopolize basic concepts, and by holding in Nautilus v. Biosig Instruments that patent claims cannot be drafted so vaguely that they fail to give reasonable notice of what is covered. In these and other decisions, including Octane v. Icon and Highmark v. Allcare, the court took aim at frivolous patent litigation—especially cases brought by so-called patent “trolls,” who make lawsuits their entire business model. And even though the court was unimpressed with the technology at issue in American Broadcasting Companies v. Aereo, which the justices viewed as doing little more than retransmitting broadcast television, the court went to great lengths in its opinion to ensure that the Copyright Act would not stifle further advancements.

Addressing the intersection of technology, privacy and speech, the justices acknowledged in Riley v. California the pervasive role that modern technology plays in the lives of Americans, protecting the privacy of data stored on mobile phones from unreasonable governmental intrusion. The court also protected a wide variety of speech under the First Amendment, from political contributions ( McCutcheon v. Federal Election Commission) to what the court called curbside abortion “counseling efforts” ( McCullen v. Coakley) to union contributions ( Harris v. Quinn). But it refused to hear an important case regarding whether the First Amendment protects journalists from being compelled to divulge their confidential sources in federal criminal trials ( Risen v. United States), creating serious dangers to freedom of the press in this country.

Daniel Farber

Sho Sato professor of law and co-director of the Center for Law, Energy & the Environment at University of California Berkeley School of Law

The recently finished Supreme Court term was not as dramatic as some recent years—no same-sex marriage case or Citizens United. Nor did the decisions either move all in the same liberal or conservative direction, or involve the same blocs of justices. Yet, overall, there was a clear trend toward a country that looks a little less like Barack Obama’s America and a little more like Mitt Romney’s. This is an America where corporations have the right to religious freedom, public employee unions have fewer rights to collect dues, the EPA has a little less power to regulate greenhouse gases and wealthy donors are subject to fewer constraints on their political contributions.

This is not to say that the decisions were all driven by ideology, much less that this was a year of huge victories for conservatives. Indeed, conservatives may be disappointed that the court bypassed opportunities for more drastic legal changes in many of these cases. Overall, however, the net impact of the decisions was to reshape the country incrementally in a conservative direction, giving a little more power to corporations and the wealthy than they had before, and a little less to women needing contraceptives, public employee unions, victims of climate change and ordinary voters who are in no position to purchase access to elected officials.

Richard Pildes

Sudler family professor of constitutional law at New York University School of Law

This term the court decided two cases about major provisions of the Constitution—getting at the most fundamental powers of Congress and the president—that the court had rarely or never interpreted before. One involved the Treaty Power: How far can the national government go in making and enforcing treaties? The second involved the Appointments Power: What is the appropriate balance of power between the president and the Senate in making certain high-level appointments of officials who will run the national government? These cases about the basic structure of national governmental power under the Constitution often get less attention than cases involving individual rights, but they are every bit or more important in shaping the way our country works (or fails to work effectively).

In both cases, the justices concluded, for the first time in our constitutional history, that the court would define and enforce constraints at the boundaries of how the Treaty Power and the Appointments Power can be used. As court imposed these new constraints, it avoided destabilizing much of the way government has run for much of the 20th century on these issues. In Bond v. United States, the Treaty Power case, the court concluded for the first time that Congress could not use an international treaty the United States has signed as a basis to regulate crimes that were far removed from those with which the treaty was concerned. But the court rejected broader efforts urged upon it to rein in the national government’s Treaty Power more dramatically. Similarly, in National Labor Relations Board v. Noel Canning, the court concluded, also for the first time, that a president had exceeded the scope of the limited power he has to make recess appointments—ones in which the Senate is not sitting. But only President Obama, and his immediate predecessor, President Bush, had used this power in the particular way at issue. So the court held unconstitutional a recent, marginal presidential use of recess appointments. But just as in Bond, the court rejected appeals urged upon it to go farther and destabilize much of modern practices involving the president’s power to make recess appointments.

So in both of these major cases, the court played its role as balance wheel in the American system of government: It made clear it is ready to invalidate exceptional uses of the Treaty and Appointments Powers at the margins of those power, but that the court would not—despite exhortations from many quarters—dramatically unsettle long-standing practices concerning how American government functions in these areas.

Stephen Vladeck

Professor of law and associate dean for scholarship at American University Washington College of Law; he tweets @steve_vladeck

The average age of the Supreme Court’s nine justices is 68. And the court’s major decisions that explain when Americans do—and don’t—have an expectation of privacy in their personal information are only a generation younger—with two of the most significant rulings coming in 1968 and 1979, respectively. Meanwhile, as underscored by the legal debate over the controversial NSA surveillance programs Edward Snowden disclosed last summer, these precedents simply did not—and cannot—account for our understandings of “privacy” in an age when, thanks in part to technological advances, we live so much of our private lives—and share so much of our personal information—in virtual and real public spaces.

Two years ago, in a case about GPS-based surveillance, five members of the court suggested in concurring opinions that these technological developments might soon portend a reassessment of fundamental assumptions about the Fourth Amendment. That assessment began last Wednesday, in Riley v. United States, in which the justices unanimously ruled that law enforcement officers must obtain a warrant before searching a cellphone of an arrested criminal suspect. Because Riley’s holding is only about arrestees, its immediate effects will be lost upon an overwhelming majority of Americans. But the rhetoric and reasoning of the majority opinion written by Chief Justice Roberts—who still writes out his opinions in longhand—reflect a court coming to terms with the ways in which modern technology destroys decades-old constitutional assumptions about the line between what’s public and what’s private, assumptions that only made sense in an analog world.

It remains for subsequent cases to fill in the details, but whatever the results, such a reorientation will have potentially breathtaking consequences, not just for the rights of criminal suspects, but also for the scope of the Constitution in general. So, as much as the immediate headlines will focus on contraception, recess appointments, public-sector unions or affirmative action, 25 years from now, the 2013-2014 term of the U.S. Supreme Court will be remembered as the year the court entered the digital age and fundamentally changed how the Constitution protects our privacy.

Barry Friedman

Jacob D. Fuchsberg professor of law at New York University School of Law

When it comes to your privacy, the Supreme Court changed America this term—but not nearly so well as everyone seems to think.

The justices attracted a lot of attention for their unanimous decision in Riley v. California, holding that when police arrest a suspect, they can’t search that person’s cellphone without a warrant. California had argued, with the support of the United States government, that because police could seize physical evidence (like a letter) from an arrestee without a warrant, why did it matter if the evidence was digital? In the money quote, Chief Justice Roberts wrote, “That is like saying a ride on horseback is indistinguishable from a flight to the moon.” He went on to explain (as though it needed explaining) how much of our personal lives we store on our phones, and why the phones require protection.

Bully for the court. Still, the justices did not do nearly as much as people seem to think to protect digital privacy. And this same term—in two cases that flew under the radar—they did plenty to harm old-fashioned physical privacy and security.

First, the Riley majority didn’t touch the issue that’s really on everyone’s digital mind, the “third party” doctrine. The reason the NSA and FBI have been able to gather so much information from all of us without a traditional warrant is because years ago the Supreme Court held that once you hand information over to a third party—your accountant, the phone company or your bank—it isn’t yours anymore, and the government can Hoover it in. That was bad enough when the court first decided it—think of what it means when everything about you is in the cloud! That’s where the real digital action is, but a footnote in Riley said the court was not going near the question. Those who believe the justices will leap from Riley to overturning the third party doctrine are dreaming.

Second, the justices did their usual work eviscerating privacy in two other decisions this past term. In Fernandez v. California the court held that if the police ask to search your house without a warrant and you refuse, but anyone you live with says, “Sure, c’mon in,” your privacy is gone so long as the police simply remove you and then ask again. Message: Live alone. And in Navarette v. California, the justices allowed the police to stop a car based on a completely anonymous tip about reckless driving, even though the cops followed the car for five minutes and saw nothing at all wrong. As Justice Antonin Scalia said in dissenting, “This would not be my concept, and I’m sure would not be the Framers’, of a people secure from unreasonable searches and seizures.”

So, sure. The justices got one obvious thing about privacy right. And lots wrong. And didn’t touch the important stuff.

Martha Minow

Morgan and Helen Chu dean and professor of law at Harvard Law School

Free speech and religious expression win; equality does less well; growing reliance on communications technologies and on government to address environmental harms informs the law; corporations and employers gain power relative to employees; tensions between branches continue, amid bold assertions of humility.

Across diverse topics this term, it is hard not to see a pattern of increasing power for corporations and employers relative to employees. With the decision in McCutcheon added to the decision four years ago in Citizens United v. FEC, corporate power to influence campaigns has surged. Employers in closely held companies now can assert their religious views to restrict the reproductive choices of their employees ( Burwell v. Hobby Lobby Stores); protections for public unions are under assault ( Hall v. Quinn). At the same time, the Court exhibited considerable awareness of growing reliance by so many people on their cellphones and other technologies in rejecting government searches incident to arrest ( Riley v. California), and it acknowledged the congressional authority given to the Environmental Protection Action to combat greenhouse gases by requiring chemical polluters to comply with the “best available control technology” ( Texas v. EPA and consolidated cases) and to require states to comply with a Cross-State Air Pollution rule ( American Lung Association v. EME Homer City Generation).

Tensions between majorities and dissenters pale, though, before tensions between the branches built into the Constitution. The Court exquisitely preserved the tensions of competing branches in deciding that the president retains the ability to make appointments when the Senate is recessed even as the Senate retains the ability to declare minutes-long “pro forma” sessions, defining when it is not in recess ( National Labor Relations Board v. Noel Canning).

In the midst of high-profile cases, the court urged humility. It rejected one disruptive communication technology as a violation of the Copyright Act, while acknowledging that the justices “cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us” ( American Broadcasting Cos. v. Aereo). It rejected a state’s effort to define intellectual disability by emphasizing the risk of error and variability in the tests used by experts ( Hall v. Florida).

And yet the Court itself manifests something other than humility in rejecting objections to the Town of Greece’s use of public prayer (“It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews,” Justice Anthony Kennedy wrote in the decision); in disputing a state’s argument that no means other than a 35-foot zone has worked to protect individuals seeking to enter abortion clinics ( McCullen v. Coakley); in dismissing concerns about corruption and undue election influence ( McCutcheon); and in arguing that religious objections by corporations to complying with general laws will not put general laws in jeopardy ( Hobby Lobby).

Let’s hope this self-confidence is accompanied by wisdom, for the court above all has now sent a green light for much more litigation over just about all of the contested issues. This includes litigation over the constitutionality of the very alternative the majority cites in one case; stay tuned for challenges to compliance with the Affordable Care Act and other general statutes.

Mark Tushnet

William Nelson Cromwell professor of law at Harvard Law School

The Supreme Court sits for nine months every year, and we all have a tendency to think that its unit of time—the “term”—is significant. Actually, the pace of the court’s effects on society is slower than the pace of its output. Right now, the court decides between 70 and 80 cases a year. A good portion of them—maybe two-thirds—settle questions that are important to specific interests (like its decision about software patents) but that have relatively little short-term impact.

The court’s other cases are the ones that get lots of press attention—the decision dealing with the president’s power to make recess appointments or Hobby Lobby. Even these are less important than the immediate press reports and politicians’ responses suggest. Usually there are “workarounds” or alternatives that create opportunities to keep the issues alive, leaving the cases open to continued legal and political debate.

So, what can we say about any recent term—or about this one? The decisions that attract attention are more important for what they tell us about the way the court thinks about law and the Constitution than for what they actually do. The court is constructing what in fancy terms we can call an ideology or philosophy of constitutional law. And, the current court’s philosophy is, broadly speaking, conservative, skeptical of expansive exercises of government power in the domestic arena, tending in a mildly libertarian direction. That doesn’t “change” society, but it contributes to our ongoing discussions of what kind of society we want to have.

Kermit Roosevelt

Professor of law at the University of Pennsylvania Law School

What the Supreme Court has done over this term, and the past several, is to continue its project of telling us whose interests count in America. There’s a natural tendency to think of constitutional cases as taking the form of individuals versus the government, and sometimes, notably in criminal cases, they do. But often the real conflict is between individuals—between a woman seeking to approach an abortion clinic in peace and a person seeking to engage her in conversation; between individuals worried about voter fraud and those worried about being unable to vote; between women seeking insurance coverage for reproductive health and corporate owners who object to providing it; between rich people wanting to spend lots of money on politics and poor people worried their voices will be drowned out.

The list could go on. On the surface, the cases frequently turn on complex doctrinal intricacies, but as the court terms progress, it becomes harder and harder to avoid the conclusion that what is really driving the decisions is the majority’s view about whose interests are more important. (One striking pattern that is emerging is that women’s interests in reproductive health are getting very little traction.)

What we’re seeing is not just the calling of balls and strikes, as Chief Justice John Roberts once described the judicial role; we’re seeing the operation of judicial empathy. President Barack Obama once said that he thought empathy was the most important quality in a judge. That was both right and wrong—right because empathy does turn out to predict judicial behavior in these kinds of cases, but wrong because empathy is not a quality that some judges have and some lack. They all have empathy. They just have it for different people. Sadly, the Roberts Court continues to show its deepest concern for the people, including corporations, who seem least in need of it.

Sanford Levinson

W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and professor of government at University of Texas Law School; author of Framed: America’s 51 Constitutions and the Crisis of Governance

How much did the Supreme Court change America this year? My inclination is to say “very little.” As University of Virginia Professor Fred Schauer demonstrated almost a decade ago, most Americans really don’t care all that much about most of the issues decided by the Supreme Court because they don’t affect their lives in very important ways.

There are obvious exceptions: If the majority in National Federation of Independent Business v. Sebelius had come out the other way last year and struck down “Obamacare,” that would have been a really major development, but the court didn’t. And the decision last year gutting the Voting Rights Act was really major; a number of Republican states immediately passed voter-suppression laws courtesy of the court’s dreadful decision in Shelby County v. Holder.

But this year’s decisions, even Hobby Lobby, really aren’t very important to the country at large when all is said and done. Many of them are of interest to law professors, but not to most practicing lawyers. The cell phone decision in Riley v. California might be significant, but we won’t know for many years, as is true of many Supreme Court decisions. The most important decisions about issues Americans do care about are made (or not made) by Congress and the president. What has really “changed America” is the patent dysfunction of our government and its near inability to confront any of the basic challenges that face us as a country. What the Supreme Court did is near irrelevant with regard to those challenges (save, perhaps, for its basically upholding the power of the EPA to engage in important environmental regulation).

Justin Levitt

Professor of law at Loyola Law School, Los Angeles

There may be terms in which the Supreme Court changes America. But such terms are vanishingly rare. Far more often, America changes—and the court’s decisions reveal whether it is in or out of tune, and to what degree. That is, the law eventually comes to reflect America. The court either furthers those changes or forces change, intentionally or unintentionally, through other institutions.

This term was one of those latter terms. And as in each such term, the court’s place in the tides of change was not uniform.

Several important decisions ably reflected a changing America. In Riley v. California, for example, the court applied law from the year 1791 to 2014 technology by requiring police to acquire a warrant before searching the immense compilation of data accessible in or through a smartphone. The decision—unanimous, for all practical purposes—is littered with references reflecting an America that would have been unrecognizable 20 years ago. And in NLRB v. Noel Canning, the court—here unanimous only on the surface—recognized that the senators of the air-conditioned 20th and 21st centuries simply do not keep the same summer calendar as their earlier colleagues, and clarified the presidential appointment power accordingly.

Then, there were other decisions that seem not to recognize the America of today. Greece v. Galloway permitted a town to open its local government sessions with distinctively monochromatic sectarian prayers before citizens could petition their representatives for assistance or relief. And McCutcheon v. FEC doubled down on the notion that giving money to parties and politicians to cultivate special influence and access is constitutionally privileged. Curiously, both decisions concern citizens’ relationship to their government officials. And “concern” is indeed the apt description for opinions inevitably fostering alienation and exclusion from those who should be representing us.

The governmental branch most removed from popular tides is the one least affected by the ramifications of these latter decisions. To reconnect the public and the law, it may be that America has to change the court.

Bruce Allen Murphy

Fred Morgan Kirby professor of civil rights at Lafayette College and author of Scalia: A Court of One

In answering this question, it is first necessary to define the court majority’s vision of America as opposed to that of others. For those who agree with the court’s vision as expressed in this term’s cases—that the race question in this country has been solved, that unlimited amounts of money donated to political campaigns cannot possibly lead to governmental corruption, that religious owners of closely held corporations and prayer-leading town council members are the new oppressed minority, that the dysfunctional, obstructionist Senate would never bend its rules to prevent a president, of either party, from exercising his constitutional powers and that women, in the earlier words of Justice Anthony Kennedy, “fraught with emotional consequence,” as they enter a Planned Parenthood clinic are not being harassed, but merely counseled, by anti-abortion protestors—all of the “change” wrought by the justices this term was positive.

But for those who live in a different reality, this court continues to be startlingly out of touch, as indicated by the historic lows in public support that the institution has been receiving recently. Contrary to the flurry of “Is the court more unanimous?” commentary just last week, the answer for the still deeply divided and polarized, 5–4 Roberts Court should be a resounding, “No!” Even when the court seemed to speak on the surface with one voice on recess appointments and abortion clinic protest buffer zones, Justice Antonin Scalia still objected for three of his colleagues in dissent-like concurring opinions, railing against “the assembling of an apparent but specious unanimity” and taking issue with the way that the court defined its issues, did its history and created its legal tests, to make decisions. In what might turn out to be something of a “coming out” party for one of the court’s future pivot justices, the rise of Samuel Alito, the author of two 5–4 decisions on the final day (concerning corporate religion rights and public employee union dues), should end any talk of a new, bipartisan, unanimous court for at least the summer.

Something might be changing in a more permanent fashion for Justice Anthony Kennedy, who could be reaching a different understanding of his own test for measuring the relationship between church and state under the First Amendment’s establishment of religion clause. In the 2010 case Salazar v. Buono, Kennedy saw no First Amendment religion clause problems with a war memorial cross on Sunrise Rock in the Mojave National Preserve. But it is becoming harder and harder to understand the “no coercion” rule that he once used to maintain a wall separating church and state. His opinion in Town of Greece v. Galloway, whichallows a Christian public prayer to be held before a town council meeting, even though the town’s political leaders may, in the words of the court in the 1961 Engel v. Vitale case banning school prayer, be placing “indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion.” Scalia’s silence in Town of Greece on the “no coercion” rule, which he has belittled in the past as “amateur psychologizing,” may indicate that he senses the pro-accommodation movement by his “swing voting” colleague. A shift by Kennedy to join Scalia’s side more permanently on this question would create a more crystallized cleavage in favor of more religious accommodation by the state in the future.

David R. Dow

Cullen Professor at the University of Houston Law Center and the Rorschach visiting professor of History at Rice

Four important cases, four cases decided by the predictable vote of 5–4: Congress cannot place limits on campaign contributions; government bodies can open their sessions with sectarian prayer; for-profit employers can invoke a religious exemption to avoid providing insurance coverage for contraception; and some public employees can refuse to pay union dues.

And that tally sheet understates the severity of the schism in this court’s term, because two other critical cases, decided unanimously, superficially obscure the fact that a group of four justices made the tactical decision to accede to a narrow defeat rather than lose a more decisive battle. In other words, if the court had not unanimously held that President Obama exceeded his authority in making recess appointments, and struck down a Massachusetts law requiring anti-abortion protestors to remain 35 feet from clinic entrances, the court would have issued 5-to-4 rulings that placed greater limitations on the president and that chipped away further at a woman’s right to obtain an abortion.

The five winners in all these cases were appointed by Republicans; the four losers were appointed by Democrats. It is a frequently observed fact that Justice Anthony Kennedy is the swing vote responsible for how the majority of the Supreme Court’s most important cases come out; it is less frequently observed that the president who named Kennedy to the court nearly 27 years ago has been dead for a decade and out of office since 1988. In other words, the justice whose vote decides our nation’s most important cases was named to the court by a president— Ronald Reagan—for whom nobody has voted for three decades. If that’s a way to run a democracy, we need to change the definition of democracy.

On issues ranging from religion to gun control to campaign finance reform to free speech to abortion rights, this is a court that has shattered the illusion that there is a boundary between legal principle and ideology, and has shown over and over again that constitutional adjudication is simply an extension of politics.