As is not unusual in the last week of the term, there were some bombshell decisions.  In Janus, a 5-4 majority overturned long-established precedent to find that collective bargaining on behalf of public employees was political speech (because the employer was the government and, as such, its decisions were matters of public policies) and, thus, the First Amendment protected employees who objected to their unions’ goals in collective bargaining and government employees can’t be forced to subsidize the costs of collective bargaining.  In Becerra, a 5-4 majority found that advising women coming to obtain pre-natal care about all of their medical options (and making sure that the women knew if they were obtaining that care from a licensed facility) violated the First Amendment even though it does not violate the First Amendment to make sure that women seeking an abortion know about all of their options for taking the pregnancy to term.  Finally, in Trump, a 5-4 majority decided that, even though Korematsu (approving deference to the president on a slimly-supported national security issue even when that issue involved discrimination based on ethnicity) was bad law, the Supreme Court would defer to this president on an arguably slimly-supported national security issue even when that issue arguably involves discrimination based on religion.

None of the decisions in individual cases may matter as much as the decision of Justice Anthony Kennedy to retire.   Justice Kennedy is twelve years older than Justice Clarence Thomas (the next oldest Republican-appointee) and fourteen years older that Justice Samuel Alito.  Thus, while many commentators are talking of this decision as locking in a Republican majority for the next generation, that line is probably somewhat inaccurate.  But it does probably lock in Republican control for the next decade.

More significant than the age-issue is the balance on the court.  The reality (as shown by this year’s term) is that Justice Kennedy has always been somewhat conservative with some issues on which he aligned with the “liberals” on the Supreme Court.  In that way, he is somewhat similar to Chief Justice John Roberts (although Roberts is a little bit more conservative).  While Justice Kennedy did not join the liberals in any 5-4 decisions, he did join Chief Justice Roberts and the liberals in some 6-3 decisions.  In cases in which the four liberals were on one side and the three ultra-conservatives were on the other side of a case,  either the Chief Justice or both the Chief Justice and Justice Kennedy sided with the liberals in 5 out of 19 cases.  Looking at the previous term, either the Chief Justice or both the Chief Justice and Justice Kennedy joined the liberal side in 4 out of 8 cases.  There were only four cases over the past two years in which Justice Kennedy was the deciding vote in a 5-4 or 5-3 “liberal” result. Continue Reading...