SCOTUS continues to surprise

[drwex]

Three of the four decisions that have come out this week have been unanimous. That's extremely surprising if you're a Court wonk. Early in the Roberts era he seemed to be working toward fashioning more compromise positions but in the past year the Court has been sharply divided on many issues.

In addition, it's late in the term. The Court traditionally leaves contentious decisions for late so most watchers assumed some of these cases would produce 5-4 outcomes. Instead the Court went 9-0 on buffer zones (no zones), 9-0 on searches of cellphones (no searches without a warrant), and 9-0 on recess appointments (no, three days does not constitute a long enough time for Congress to be considered in recess). That suggests that the Justices saw compelling positions to which they could all sign on, regardless of their ideological leanings.

I give Roberts and the other Justices thumbs-up for showing that compromise is still possible somewhere in government.

Comments

[meadmaker.livejournal.com]

First off, I echo the applause for the court stepping outside of partisan bickering.

I remember hearing someone on NPR saying that most court decisions are actually unanimous, but that we just don't hear about them. The year so far looks to be about 66% unanimous, though last year's record is about 50%.

(http://en.wikipedia.org/wiki/2012_term_opinions_of_the_Supreme_Court_of_the_United_States and http://en.wikipedia.org/wiki/2013_term_opinions_of_the_Supreme_Court_of_the_United_States)

Do you have any opinions on the opinions you cited? The only one I've heard anything about is the buffer zone. If the court really believes this one, then I hope that courts start striking down the "free speech zones" that became popular at political conventions during the Bush presidency.

[drwex]

I suppose it's possible they have unanimity in many cases of little or no significance. These are some pretty big issues.

Let's see...

On Aereo: I think they're treading in some very shark-infested waters. I tend to agree with Scalia, whose dissent lectured the Court that it was not the Court's business to close loopholes that Congress had left in the law. I read Breyer's majority as well and I see that he's trying to limit the scope of the decision here but I do not think he'll be successful. I expect a related case to be back at the Court in a couple years and meanwhile a fair bit of damage will be done to nascent cloud-based start-ups whose backers would rather not lose all their money.

On the cell phone searches I'm both surprised they were unanimous in favor of warrants and doubly surprised that they didn't carve out an "in plain sight" exception. Perhaps they think that exception already exists, but in my mind if the cops have your cellphone and a caller ID appears on the screen without the cops doing anything then the cops ought to be able to act on that. Likewise, if you use some dumb-ass photo of yourself doing something stupid or illegal as your cellphone wallpaper and that's plainly visible the cops should be able to act on that. Plain sight exceptions exist for almost all other 4th Amendment searches.

On the buffer zones, I'm sad but not surprised. The regulation is drawn really broadly and is pretty clearly aimed at suppressing a specific type of speech, which is just a nonstarter. Gov Patrick has already said he will work with the state's lawyers to draw up more narrowly targeted restrictions that I expect would pass muster.

On the recess appointments I'm really of two minds. I think the Court got it right, and the effect is going to be to shift a lot of power to the Legislative from the Executive. Not to mention this is going to imperil all the decisions made by the now-invalidated NLRB. I'm unhappy about the fact that this hands more tools to the obstructionist Congress to continue obstructing anything and everything the Scary Black Man does. That said, if the situation were reversed and a Republican president had to play by these rules... well, there it is.

[drwex]

Having read the ruling in Coakley I think I was incorrect. The Court held that the Act was not content-based, which lets it escape strict scrutiny. Their objection seems to be that it prohibits speech (of all kinds) in a traditional public forum such as a sidewalk, and that it burdens more speech than is necessary.

The decision, as a whole, is not nearly as bad as one might have feared. I think this is the key line, right near the end of the summary: "...given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked." What I read the Court as saying is "OK, prove it." The Commonwealth would have to come with evidence that other less-restrictive approaches had been tried and had failed.

[c1.livejournal.com]

a. I actually agreed with the three cases you listed.
b. IIRC, many more cases are decided by at least a supermajority than people think -- "if it bleeds, it leads" applies to SCOTUS decisions, too. Must be a slow news day in Washington, although I could see fairly broad interest in these particular cases.

[drwex]

All these cases were closely watched, and all are going to have ripple effects.