Chief Justice John G. Roberts had just finished reading his biting dissent in the same-sex marriage case when he took up the more mundane duty of announcing that Justice Antonin Scalia had the opinion in the next case: Johnson v. United States. “Don’t go away,” Scalia quipped.
Scalia’s opinion would have gotten a fair share of attention that day [June 26] but for the marriage decision. With the votes of six justices, the court struck down a provision of federal law that imposed an additional 15-year to life prison term on a federal offender with at least three prior convictions for “violent” felonies.
The Armed Career Criminal Act, enacted in 1984, applies to some specific priors and in the so-called “residual clause” also includes crimes with “conduct that presents a serious potential risk of physical injury to another.” Scalia had twice written dissents, in 2007 and 2011, urging that the clause be struck down as unconstitutionally vague.
Scalia appeared to be as cheerful as a canary-eating-cat as he announced the decision that vindicated his dissents of still recent memory. By contrast, the 79-year-old justice was at his sarcastic worst the day before when he dissented from the decision written by Roberts that saved the Affordable Care Act.
In fact, it was a bad term overall for Scalia: apparently his worst ever. He dissented in 23 cases, the highest number at least since the 1992-93 term when I began counting dissenting votes for my annual series Supreme Court Yearbook.
Scalia was not alone. The court’s three other reliable conservatives also had personal-worst years. Justice Clarence Thomas dissented in 29 cases: not only his highest number, but also the highest figure for any justice since OT 1992. Justice John Paul Stevens held the previous record: 28 dissents in two separate terms, 1999-2000 and 2008-09.
The Supreme Court Yearbook compilation does not reach back to Scalia’s first six terms or Thomas’s first. But the court’s conservatives generally held sway during those years, so their dissenting numbers were unlikely to have been on the high side.
Roberts and Justice Samuel A. Alito Jr. also recorded personal highs for dissenting votes during OT 2014. Roberts cast 16 dissenting votes, surpassing his previous high of 14 dissents in OT 2008. Alito cast 21 dissenting votes; he had previously dissented in 16 cases in the 2012-2013 term.
Meanwhile, three of the court’s liberal justices recorded personal bests. Ruth Bader Ginsburg cast 10 dissenting votes, the lowest number in her 23 terms. With six dissents, Stephen G. Breyer had the lowest number in his 22 terms; he was also the lowest of any of the justices for the term — the second time he has had that distinction. With eight dissents, Sonia Sotomayor had the lowest number for her six terms; Kagan, with 11 dissents, had the second lowest number for her five terms.
The historical comparisons fortify the general characterization of the court as having tilted quite unusually to the left in OT 2014. The liberal justices, often bolstered by votes from the bloc-shifting Anthony M. Kennedy, prevailed not only in the marriage and Obamacare cases but also in most of the other important, divided decisions.
Scalia’s late-term victory in Johnson, however, shows the conservatives may be down but not out. Indeed, the conservatives won two of the three decisions on the term’s final day, and they appeared to be the moving force the next day in a bit of aggressive agenda-setting for the coming term.
The justices accepted for next term a significant challenge to public employee unions brought by dissident California teachers, Friedrichs v. California Teachers Association. This will be the court’s third case in five years challenging so-called agency shop rules that require public employees to pay fees to unions for the costs of collective bargaining even if they are not members. The plaintiffs claim the fees violate their freedom of speech and association; the unions say eliminating the fees would allow the dissidents to be free-riders — getting union-provided representation and benefits without paying for them.
The court struck down an agency shop provision in a decision last year affecting Illinois home health care workers, Harris v. Quinn (2014). In his majority opinion, Alito criticized but stopped short of overruling the precedent that allows agency shop provisions: Abood v. Detroit Board of Education (1977). The new case is viewed by public employee unions as the shoe set to fall.
The court had already set up a new test of racial preferences in university admissions by agreeing to hear Fisher v. University of Texas. This is the sequel to its earlier ruling in the same case in 2013 instructing the federal appeals court to take a second look at UT’s policies.
The conservative justices were also the likely votes for hearing a politically significant redistricting case, Evenwel v. Abbott, also from Texas. The plaintiffs want to read the one-person, one-vote rule to count the voting population instead of total population in equalizing legislative districts. A ruling to that effect could shift political power away from areas with significant non-citizen populations or low voter registration.
With those and other cases already teed up, conservatives are hoping for the best and liberals bracing for the worst. “Next term is going to be at least as important as this term, if not more,” remarked Steven Vladeck, a professor at American University’s Washington College of Law.
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