Supreme Court follows law, not ideology

Margie Phelps, of the Westboro Baptist Church , of Topeka, Kan., speaks outside the Supreme Court in Washington. While many see the court as dominated by a five-justice conservative majority, only 20 percent of the cases last term were decided by a 5-4 split.
Margie Phelps, of the Westboro Baptist Church , of Topeka, Kan., speaks outside the Supreme Court in Washington. While many see the court as dominated by a five-justice conservative majority, only 20 percent of the cases last term were decided by a 5-4 split. (CAROLYN KASTER / Associated Press)
Posted: July 17, 2011

Leon F. DeJulius Jr.

served as a law clerk to Chief Justice William Rehnquist and is now in private practice in Pittsburgh

The U.S. Supreme Court headed by Chief Justice John Roberts often is derisively described as conservative, pro-business, or anti-individual. Generally the label is not based on any analysis of legal precedent or principles, but on who wins or who desires the outcome of a particular case. The facts, however, belie such labels.

The court decided 82 cases last term. Most opinions were quietly issued with nary a headline. Many cases were dictated by legal precedent, and the outcome was clear. In fact, 46 percent of the cases last term (38 out of 82) were unanimous in the judgment. That means the justices, four appointed by Presidents Bill Clinton and Barack Obama and five by Presidents Ronald Reagan, George H. W. Bush, and George W. Bush, agreed on the outcome. Unanimity - on anything - is a rarity in Washington these days.

Conservatives or business owners surely agreed with some of these decisions. For example, the court unanimously reinstated previously vacated death sentences, held that former Attorney General John Ashcroft was immune from lawsuits involving post-9/11 detentions, and affirmed the right of NASA to inquire into contract employees' past drug use. The court was also unanimous in several cases involving criminal procedure and rights, generally ruling in favor of the government.

But the court also unanimously ruled in favor of so-called liberal outcomes in several cases. The court held that an employee can sue her employer for discrimination based on her supervisor's animus even if the ultimate decision was not discriminatory. In another case, Justice Antonin Scalia - the supposed conservative bogeyman - wrote for a unanimous court that the anti-retaliation provisions of a discrimination law should be broadly construed to protect employee rights.

The court also unanimously revived a securities-fraud case that had been thrown out for inadequate pleading; reinstated a state law class action against a large corporation, even though the federal court had dismissed a similar claim; and permitted an injured person to sue an automobile manufacturer under state law for failing to put a three-point seat belt in the rear seat of a minivan.

A substantial majority of the court - with six, seven, or eight justices in agreement - decided 34 percent of the cases (28 out of 82). The court strenuously protected free-speech rights, affirming, 8-1, the right of Westboro Baptist Church to protest military funerals; striking down government restrictions on prescription-drug marketing (6-3) and violent video games (7-2); and reversing the Navy's withholding of information relating to the impact of a munitions explosion (8-1). The court allowed prisoners to seek access to crime-scene DNA testing (6-3) and let one state agency sue another to enforce a federal right to mental-health records (7-2).

Perhaps contrary to public perception, only 20 percent (16 of 82) of the cases were decided by a 5-4 vote (or 5-3 in the event that a justice recused), and only 12 percent (10 of 82) were decided strictly along "party" lines. Oftentimes, these are cases where the law is murky, and each justice relies on his or her judicial philosophy to decide the case.

Some of these cases undoubtedly made national headlines as "conservative" wins. For example, the court struck down part of Arizona's public financing of political campaigns on First Amendment grounds; allowed agreements between corporations and consumers to prohibit class-action arbitrations; and affirmed Arizona's law that imposes heavy fines on businesses that employ illegal immigrants. And, as was widely reported, the court denied class-action certification in an alleged discrimination case against Wal-Mart.

The court, however, split in favor of "liberal" policies as well. For example, the court held that police officers must consider a suspect's age when deciding whether to administer Miranda warnings and that criminal defendants have the right to confront lab technicians regarding lab results. The court also affirmed a court order requiring California to reduce its prison population by 46,000 inmates due to unconstitutional overcrowding.

What to make of all this? First, the court, in large part, agrees on the substance of most of its decisions. The justices are not politicians. They generally work within the law and apply the law. While ideological divisions certainly exist, ideology in the current court is a predominant consideration in relatively few cases. And, second, simplistically labeling the court as conservative is a disservice to the court and the judicial system. The court's docket, workings, and decisions are much too complex to label. Each case the court decides is unique, and the outcome - whether viewed as conservative or liberal - depends on many factors.

Labeling the court as conservative falsely suggests that its decisions are based on a desired political outcome. While such labels may be convenient to tell a story, they are not descriptively accurate.

E-mail Leon F. DeJulius Jr.

at The views expressed here are his own and not

those of his firm or clients.

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