Kennedy the Swing, Roberts Back on Reservation, Scalia Is Scalia

This morning I was on the steps of the Supreme Court, as I have been each of the decision days starting last Monday. It’s a real spectacle, with protestors and counter-protestors, interns running from the Court’s press office to give their media principals slip opinions, and phalanxes of TV cameras, bright lights, screens, and assorted technical accoutrements. For someone whose job includes digesting and commenting on legal opinions, this last week of the high court’s term is pretty much the Super Bowl.

Except today didn’t feel that way. After Obamacare on Thursday and same-sex marriage on Friday, today was the most anticlimactic “last day of school” since I’ve begun doing this.

That’s not to say that the three cases decided today were unimportant, either legally or politically. Indeed, until the Court took up King v. Burwell and Obergefell v. Hodges, each of them would’ve been considered among the “big ones” for what was, to that point, a low-key term. After all, we’re talking about the death penalty, redistricting, and major environmental regulations. (And also the Court announced that it will again take up Fisher v. UT-Austin, the racial-preferences case that is set to become one of next term’s blockbusters.)

Let’s take the cases in the order they came:

  1. In Glossip v. Gross, the Court rejected a challenge to one of the drugs used by Oklahoma in administering lethal injections, arguing that its use violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.” Justice Alito wrote a fairly technical opinion for the 5-justice majority based on two grounds: (1) the death-row inmates failed to identify an alternative method of execution that entails a lesser risk of pain; and (2) the district court didn’t clearly err in finding that they hadn’t established that the challenged drug was ineffective in rendering the executee unable to feel pain. Standard stuff, with which the four liberal justices – acting in lockstep as they always do in big cases – disagreed. But then Justice Breyer, joined by Justice Ginsburg alone, took issue with the constitutionality of the death penalty altogether, to which Justices Scalia and Thomas each wrote rejoinders. “Welcome to Groundhog Day,” Scalia begins before stating that Breyer’s opinion is “full of internal contradictions and (it must be said) gobbledy-gook” and concluding that Breyer “does not just reject the death penalty, he rejects the Enlightenment.” Suffice it to say, read the whole thing.
  2. Next, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court rejected a challenge to an Arizona voter initiative that, to combat political gerrymandering, took the redistricting process out of the state legislature and gave it to a new (and supposedly independent) commission. The lawsuit claimed that this independent commission violated the U.S. Constitution’s Elections Clause, which gives authority to regulate the times, places, and manner, of congressional elections to the “Legislature” of each state. Justice Ginsburg, again for a 5-justice majority, found that the law-making power was shared by the people and the legislature. Chief Justice Roberts authored the principal dissent and noted on its first page that the majority’s position “has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.” Well, then: tell us what you really think! Justices Scalia and Thomas then each dissent (and join each other’s opinions) to take issue with the legislature’s standing to bring this case in the first – a pair of opinions that will be studied thoroughly given the increasing inter-branch lawsuits being brought at both the state and federal levels.
  3. Finally, in Michigan v. EPA, Justice Scalia gets to write a majority opinion (as he did on Friday, it must be said – in the Armed Career Criminal Act case that was eclipsed by Obergefell). Put simply, the EPA cannot impose billions of dollars of regulatory costs on energy production without considering those costs at all in deciding whether to promulgate the challenged rule. This ruling stops the Obama climate-change regulatory agenda in its tracks, as my colleague Andrew Grossman describes more fully in a just-posted statement. The four liberals, through the witty pen of Justice Kagan, dissent. More interestingly, Justice Thomas writes a separate concurring opinion to question the wisdom of Chevron deference – deferring to agency interpretations of statutes – which dovetails with the one small silver lining of Chief Justice Roberts’s King opinion.

In short, even if the last day of term was overshadowed by its penultimate days, it still produced high drama: each of the three rulings split on 5-4 lines with Justice Kennedy as the swing vote, and each produced memorable concurrences/dissents, particularly by Justice Scalia. 

That also means that Chief Justice Roberts, as he did on marriage and disparate-impact in housing – the “undercard” to King on Thursday – returned to the conservative fold. (Those who think that John Roberts is “liberal” or has “evolved” while on the bench, like Justice David Souter and other Republican appointees, are simply wrong.)

Finally, the ruling in the EPA case clinched a winning record for Cato in briefs we filed in merits cases this term. We went 8-7, which is down from the previous two years but still a heckuva lot better than the government, which went 8-13. In other words, even if the term will be remembered for King v. Burwell – and Obergefell, where the government wasn’t a party – it wasn’t a bad year for liberty.

Update: This post was corrected after I recalculated the solicitor general’s won-loss record. I apparently had given the government slightly more credit than it deserved. Apologies.