The Ray Guy Lifetime Punt Award Goes To....
The Supreme Court ended its October 2018 Term decision announcing today. For a term of odd alliances and increased barbs back and forth about stare decisis and what is next and when it should be obeyed and when ignored, the last day was kind of a punt. Ray Guy, perhaps the greatest punter ever in the history of the NFL, would be proud of Chief Justice John Roberts and the SCOTUS team, punting into the end zone for a rather dull end of the 2018 game.
As anticipated in yesterday's post about the June 26th Trilogy of cases, there were only four cases disposed of today, as the partisan gerrymandering cases were issued as one decision.
The four decisions from today were:
At issue in this case was whether a search warrant is required for a blood draw when the driver is unconscious. In a 5-4 decision authored by Justice Samuel Alito, the Court held that people driving on a public road have given implied consent to having their blood drawn if police suspect them of driving under the influence. It also held that the "exigent circumstances" presented by such a scenario permit police to obtain a blood sample without a warrant. Alito wrote: “When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test."
This might have been the one instance where the SCOTUS offense stayed in the game and ruled on a substantive basis. The admonition in commercials and other advertising used to be "Don't Drink and Drive." Perhaps a new slogan needs to be added to that - "Don't Drink and Doze."
2. Partisan Gerrymandering – - Rucho v. Common Cause
This case consolidated two argued partisan gerrymandering cases, one in North Carolina and one in Maryland. The Court held that such issues involved political questions and so the courts cannot help in these. The Court's ruling means that courts will not have a role to play in reviewing partisan gerrymandering claims going forward, and both parties can expect even more ingenious maps based on the technologies exist. Perhaps Eric Segall is right that any solution from the Court on this topic would have been arbitrary and that the Court cannot save us from ourselves.
Justice Sonia Sotomayor strongly dissented, with this powerful closing:
"Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent. "
3. Department of Commerce v. New York-
The issue in this case was whether the Trump administration was justified in adding the citizenship question to the Census. In a decision by Chief Justice Roberts, the answer was no, but perhaps temporary for two reasons- 1) the Court sent back to the agency for a rationale that is actually behind the question, and 2) President Trump is already talking about postponing the Census to come back with a justification and get the Court to okay the revised basis. Roberts wrote in part:
"We cannot ignore the disconnect between the decision made and the explanation given.... If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case. In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition."
And he wrote:
"We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction."
Although the Court sends the case back to the agency, it largely rejects the substantive objections New York raised regarding the agency's power to include a citizenship question. So the remand may prove to be a temporary, and limited, victory for those who applaud today. Again, a sort of punt by the legendary CJ Roberts.
The main question will be timing, a political rather than legal question.
4. Carpenter v. Murphy
The question in this case was whether Congress had disestablished the Muscogee (Creek) Nation reservation. The Court did not answer the question, but set the hearing for reargument in October Term 2019 in October. With one final punt, the SCOTUS offense took its pens and its gavel and went home, while the legal pundits would armchair quarterback for a few weeks, until the 4th of July or some other activity occupied their minds. Only 76 days until the beginning of October 2019 Term. That "season" starts on Tuesday, October 1.
The prediction on June 26 that we might see two Roberts decisions and one Alito was correct- see June 26th SCOTUS Trilogy. With today, the following tally of majority opinions is final:
- Thomas/Breyer/Kagan/Gorsuch- 8 each;
- Roberts/Kavanaugh/Alito/Sotomayor- 7 each; and,
- Ginsburg - 6.
There was one per curiam opinion, one rehearing (see above), and one consolidation (see above), for a total of 69 decisions. A low number for a Court that is well below the output of its predecessor Courts. As noted, thus comes an end to the term that was the October 2018 Term, with only 40% of the 5-4 decisions being along party-appointed lines, and 45% of such 5-4 decisions including the four liberals joined by one other justice.