The recent decisions handed down by the US Supreme Court (or SCOTUS, since the Twitter generation has to fit everything into 140 characters) have me not at a loss, per se, but rather contemplating exactly what style of court we have.  Spin doctors from each party will take today’s ruling on the Affordable Care Act and use it to either attack the President’s declaration that the mandate portion of the law “is not a tax,” or to declare the President had it right all along and it was Congress, specifically the Republicans, who just do not want to “help the American people.”  The Court will be lauded for being socially-conscious or castigated for being too activist.  The Obama Administration, for better or worse, will catch a great deal of fallout from the ruling, and regardless upon which side of the aisle one resides the key will be to maintain perspective and view the facts in this and many of the other recent decisions.  Why?  Because examining recent decisions will help figure out exactly what kind of court we have. 

First, let us look at who is on the court and by whom they were appointed:

Position	Name	Appointed by	Confirmation Vote	Years on Court
Chief Justice	John Roberts	George W. Bush	78-22	7
Justice	Antonin Scalia	Ronald Reagan	98-0	26
Justice	Anthony Kennedy	Ronald Reagan	97-0	25
Justice	Clarence Thomas	George H. W. Bush	52-48	21
Justice	Ruth Bader Ginsburg	Bill Clinton	96-3	19
Justice	Stephen Breyer	Bill Clinton	87-9	18
Justice	Samuel Alito	George W. Bush	58-42	7
Justice	Sonia Sotomayor	Barack Obama	68-31	3
Justice	Elena Kagan	Barack Obama	63-37	2

For the purposes of this discussion, justices will not be referred to as “Republican” or “Democrat.”  The decisions of the court and the votes cast by each justice will be classified as “conservative” or “liberal,” and only to give them a category.  It is not meant to declare each justice as one or the other.  Also, to facilitate discussion, the focus will be on decisions reached by this particular court since 2008.  Political rhetoric and hyperbole have reached a level heretofore unseen, and it began right around the middle/end of President Bush’s second term.  This is not an attempt to minimize the amount of political argument or rhetoric prior to this time, but it is fair to argue the current level of such is unprecedented.  Finally, this blog assumes not political affiliation whatsoever.  The analysis provided here is genuinely meant to be as unbiased as possible.  Now that disclaimers have been addressed, it is time to move on to court decisions. 

One final note:  The decisions addressed will be major decisions.  There are several on the docket that generally have little in the way of political impact, and including all decisions for the last four years would make the discussion rather unwieldy.

2008 Decisions:

Note:  In 2008, Sotomayor and Kagan were not on the court.  John Paul Stevens and David Souter held their seats.

District of Columbia v. Heller:  This was a gun control-related case where a District of Columbia law banning handguns was challenged on Second Amendment grounds.  The majority struck down the DC law as unconstitutional and required a license to be issued provided Heller met the requirements for a license. 

The vote was 5-4 with Scalia, Roberts, Kennedy, Thomas and Alito in favor and Stevens, Souter, Breyer and Ginsburg dissenting.  It was a wholly conservative decision and the vote indicates a factional split between the Republican-appointed and the Democrat-appointed justices.

There were five job discrimination cases brought before the court in 2008 and in all but one Thomas dissented against the majority opinion.  One case was a 9-0 unanimous decision, a second had Roberts join in dissent, and Thomas and Scalia dissented in the remaining three.  All five cases were decided in favor of the worker; four of the cases involved age discrimination and one was a racial discrimination case.  Without getting into the specifics for the dissent of Thomas and Scalia, there certainly is no ideological division on the decisions rendered in these cases.  They were all decided by a 6-3 vote or better.

Davis v. Federal Election Commission:  The “Millionaire’s Amendment” of the Bipartisan Campaign Reform Act (or more commonly known as the McCain-Feingold Act) was challenged by Jack Davis, Congressional candidate from New York.  The amendment required a declaration of intent to spend personal funds and made the candidate subject to other campaign finance limitations even if the majority of expenses were from personal funds.  The Court ruled in a 5-4 decision in favor of Mr. Davis and struck down the amendment.  This was another split down the ideological aisle, with the conservatives justices voting to strike the amendment and the liberals dissenting, either wholly or in part.

So from our 2008 sample cases, two would be considered “as expected” decisions while the remaining five from our sample would be somewhat atypical.

2009:

Citizens United v. Federal Election Commission:  This was the landmark case of the 2009 Court calendar, as it addressed one of the key restrictions of the McCain-Feingold Act which prohibited unfettered independent spending by corporations or unions on political advertisements.  The basis for the restriction was to allow for equal time for candidates in all campaign phases and prevent large corporations or entities from out-spending the opposition.  Ironically, this was already taking place with the proliferation of Political Action Committees, or PACS, who were allowed to spend as much money as they could raise on any candidate they chose, provided they disclosed they were not affiliated directly with the candidate they endorsed.  The Court’s 5-4 decision was also a complete ideological split vote, with all five conservative justices joining the decision and all four liberals dissenting.  Justice John Paul Stevens wrote the dissenting opinion which was three times longer than the majority opinion written by Justice Anthony Kennedy.  The case was most notable for the admonishment of the court issued by President Obama during his 2010 State of the Union address in which he stated “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.”  One of the justices, Roberts I believe, was caught on camera mouthing “That’s not true.”

The remaining cases in 2009 were either small in scope or dealt more with criminal law as opposed to Constitutional civil cases.  The other major case on the docket was:

Salazar v. Buono:  in which a man sued to have a WWI-era cross removed from federal lands on the grounds it constituted government endorsement of religion.  The court ruled, again in a 5-4 decision, that the cross was put up merely as a memorial, not as an endorsement of a particular religion.  This case was watched very closely; if the decision had gone the other way then all the markers in Arlington National Cemetery and other federal cemeteries would have had to be removed.  It was another conservative/liberal split vote.

2009:  Both cases sampled here are perfect examples of ideological split.

2010: 

In a notable change, the Court declined certiorari on two separate cases regarding a large cross on federal land near La Jolla, CA.  Justice Alito issued a statement saying the Court could not take the case given the lower courts had not yet made a decision on the cases yet.  After Salazar v. Buono, it was surprising but legally sound reasoning.

Snyder v. Phelps:  This case was filed by Albert Snyder, father of Matthew Snyder, a Marine killed in combat while serving in Iraq.  Snyder wanted a tort for emotional distress against one Fred Phelps and his Westboro Baptist Church of Topeka, KS, who showed up at the Snyder funeral with his family and church members carrying signs denigrating US soldiers.  The court found that, even if causing emotional distress, such displays are lawful so long as they conform to local ordinances.  The First Amendment protects political rhetoric of any kind.  The decision was 8-1, with only Justice Samuel Alito dissenting.  This was a case where free speech, no matter how distasteful, was wholly protected.

Brown v. Entertainment Merchants Association (formerly Schwarzenegger v. Entertainment Merchants Association):  This was another landmark case that established video games as a form of entertainment art and therefore protected by the current interpretation of the First Amendment.  The 7-2 decision struck down California’s law that restricted sales of violent games to minors.  Only Justices Thomas and Breyer dissented, which makes this particular case a complete wash with regard to ideology.

2011: 

Federal Communications Commission v. Fox Television Stations (2012): This is a continuation of a case involving expletives blurted out on live TV during the Billboard Music Awards.  The court filed an 8-0 decision which invalidated FCC fines against Fox for the vulgar language but that also affirmed the FCC’s power to regulate broadcast TV licenses as in the public interest and therefore not a violation of the First Amendment.

2012:

This year has seen some fairly significant rulings by the court.  Let us start with:

Stolen Valor Act: This ruling struck down a law that provided for criminal punishment of anyone who falsely claims to have earned military honors.  It was based on the case of one Xavier Alvarez, who claimed to have earned the Medal of Honor as a Marine.  When Alvarez was exposed as a liar, he was convicted under the act and given a $5000 fine and probation.  The US Supreme Court, upon receiving the case, overturned the law as unconstitutional under the First Amendment in a 6-3 decision.  The three dissenters were all conservatives, but that leaves two of the five to back the First Amendment.

Arizona v. United States: This decision controversially struck down parts of Arizona’s immigration law while upholding one other key provision which allowed the state police to investigate immigration status if someone was detained for other reasons.  The 6-3 decision again had Alito, Thomas and Scalia, three conservatives, as the dissenters.

Affordable Care Act: The Act, long thought to be struck down as incompatible with the Constitution’s Commerce Clause, was upheld, including the coverage mandate, by a 5-4 vote.  All four liberal justices voted in favor, of course, but they were joined by conservative Chief Justice Roberts.  Scalia, Thomas, Alito, and Kennedy dissented. 

So why did I go through all this analysis?  Primarily for ONE reason:  It is to help people understand that when they hear the pundits from either side talking about the fairness of the court or about judicial activism and how this court is in the pocket of the President or beholden to Congress they can understand that, in the words of Chief Justice Roberts, “That’s not true.”  For the Chief Justice to actually uphold a provision that he himself calls a tax as a conservative is, quite frankly, bizarre.  It does help underscore the fact the court is trying to remain as strictly Constitutional as it can but it sure makes it difficult to call some of these decisions when you see reversals of this nature.  It should not escape one’s notice that Chief Justice Roberts has sided with the liberal justices in the three major decisions I used in 2012 as examples.  However, prior to 2012, he was in the conservative camp on every issue not related to First Amendment rights.  So before you throw your shoe at the TV because of the blanketyblanking activist court, look at its track record.  It’s actually fairly moderate.  Just refrain from trying to guess what this court will decide.  As you can see, there is no predictability whatsoever.