By Eric Segall
History may well regard 2016 as one of the most significant years in the history of the United States Supreme Court. Here are my top ten SCOTUS stories of the year in reverse order of importance.
10) Merrick Garland Nominated to Fill Justice Scalia’s Seat:
Perhaps the most qualified person in the United States to be on the Supreme Court is nominated by President Obama to replace the late Justice Scalia. Merrick Garland is the Chief Judge of what is considered the second most important court in the land; he is known by Republicans and Democrats as a man of great integrity and character; and in some ways (like criminal procedure) he actually may be to the right of Justice Scalia. He may be the most moderate person President Obama could have nominated. But, as we all know, this story ends badly (see No. 1 most important story).
9) One Person One Vote, Not One Voter One Vote
In one of the most important but underreported cases of the year, the Supreme Court votes unanimously that one person one vote means one person one vote, not one voter one vote. The case was brought by Republicans in Texas who argued that only people who are eligible to vote should be counted for purposes of redistricting as opposed to people who live and breathe. The Court resoundingly said no by basically telling the Republicans to look up the word “democracy” in the dictionary. In his characteristic professional and understated style, Adam Liptak of the New York Times remarks that a contrary ruling would have “shifted political power from cities to rural areas, a move that would have benefited Republicans.”
8) Obamacare Contraception Dispute Sent Back to Lower Courts
In by far the most perplexing case of the year, numerous not-for-profit religiously affiliated institutions hire famous lawyers to argue that asking for an exemption from Obamacare’s requirement that they provide cost-free contraception through their insurance plans violates their federal rights under something called RFRA because they have to actually fill out a form asking for the exemption that they are legally entitled to receive once they simply ask for it. Said lawyers make up an argument that asking for the exemption somehow unites their clients in the evil of trying to avoid unintended pregnancies. The Court, hopelessly divided 4-4 over the easiest case of the year, issues a decision nobody understands that basically can be boiled down to one word: “Punt.” In light of the biggest non-Supreme Court story of this, maybe, any year, these cases will soon become, as we federal courts professors like to say, moot.
7) Don’t Bring Those Gun Cases Here
In June, the Court continued to refuse to hear important gun cases leaving lower courts to try and figure out for themselves appropriate gun control policy. Laws in New York and Connecticut banned assault weapons which apparently can’t be defined to anyone’s satisfaction. Without commenting, the Court denied review making the NRA very unhappy but probably making New York and Connecticut much safer places to live. Several commentators, including this one, believe that the Court’s refusal to hear these cases shows, once again, that Justice Kennedy has not yet figured out exactly how he feels about the Second Amendment, and neither the conservatives nor the liberals on the Court want to play Russian Roulette.
6) Justice Thomas Speaks
Shortly after the second most important story of the year (see below), Justice Thomas broke a decade-long practice of saying absolutely nothing during the Court’s oral arguments. It had been 43 years since any Justice had gone even one year without asking a question, much less ten. No one remembers the case, the questions, or anything else about that day so I can’t report much other than Justice Thomas has not asked another question during oral argument since that day.
5) Immigration Case Punted
A lower court in Texas had issued a national injunction staying President Obama’s plans not to rip American citizen children away from their undocumented immigrant parents This lower court judge had previously expressed great skepticism about these plans so this ruling was not, what we legal experts call, a big surprise. The Court, tied four-to-four, let the injunction stand. Because of events described (but not named because I can’t bring myself to do it), in number 10 above, this case will also be, as federal courts professors like to say, moot.
4) Affirmative Action Lives
For the first time in his career, Justice Kennedy votes to uphold an affirmative action policy. The plan was adopted by, wait for it, the University of Texas. With the possible exception of noted scholar Mike Dorf, virtually everyone is stunned, because with Justice Kagan recused from the case, almost everyone except Dorf thought the Justices would vote the other way 4-3. Justice Kennedy even writes the majority opinion which would have totally infuriated the person who was the second most important story of the year (see No.2 below).
Leaving aside the tough policy and legal issues involved in the case, the specific result is clearly right because the only plaintiff left in the case had no real claim for damages, had already graduated from college, and had said she would never again apply to the University of Texas. Thus, in reality, the case was, what we federal courts professors like to call, moot. Nevertheless, Kennedy’s vote is huge for the future of limited racial preferences in university admissions.
3) Monstrous Abortion Laws Die
For only the second time in his career, Justice Kennedy voted to strike down abortion laws. These restrictions, enacted by, wait for it, Texas, basically required doctors who perform abortions to have admitting privileges at hospitals within thirty miles of their office, and also required clinics where abortions were performed to satisfy the physical requirements of outpatient surgery centers despite any evidence whatsoever that either requirement had even the most remote relationship to women’s health. Justice Kennedy joined without comment Justice Breyer’s precise and comprehensive opinion demolishing every single argument put forward by the state.
In related news, Texas recently passes even more monstrous abortion laws requiring women to bury or cremate their fetuses.
2) Justice Scalia Dies Unexpectedly in….Texas
In February, Justice Scalia passed away while on a hunting trip in Texas.
Although I am one of his foremost critics, I wrote that night the following in Salon:
Even his opponents would have to concede that Justice Scalia was a dedicated public servant and one of the most influential Supreme Court Justices in history. A great writer with a flair for wit and biting sarcasm, he changed the way judges and scholars thought about constitutional law by making the doctrine of “originalism” legitimate. He was a hero to conservatives across the land for almost three decades.
I can’t add to that here.
1) Mitch McConnell Breaks the Supreme Court-Maybe Forever
On the very night that Justice Scalia died, the Senate Majority Leader announced that the Senate would not even give a hearing to any President Obama nominee. His rationale was that the American people, through the next President, who would not be in office for almost a year, should choose the next Supreme Court Justice. Apologists for this move would point to stray comments from Democrats in the past threatening such a move, or other delays by the Democrats in the Senate over judicial nominations, but the bottom line, which is irrefutable, is that this was the first time in American history that a sitting President was told, only one month into his final year, that no matter who he nominated, his pick wouldn’t even get a hearing, much less a vote.
No one has argued more often than this author that the Supreme Court is at best a hybrid legal/political institution where personal values writ large, including at times partisan politics, dominate important cases. McConnell’s move, of course, is completely consistent with the reality of Supreme Court decision-making. But, sometimes image is everything. In the past, both political parties seemed invested in portraying the Justices they like as judges and the Justices they didn’t as runaway politicians. In the future, this argument will be much harder to make. In addition, if the Democrats ever control the Senate again, they will probably not, and they should not, confirm any GOP nominees. What all of this means is uncertain but, in the long run, this may have been the year the Supreme Court died, along with its most famous modern Justice.