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You probably can’t bet what the court will do next.
NO TRUMP BUMP

The latest US Supreme Court rulings are blowing up pundits’ predictions

By Ephrat Livni

The latest US Supreme Court rulings show that the justices aren’t toeing political party lines in the way pundits on the left and right predicted after Donald Trump appointed two new members.

This may not reflect justices’ nobility and open-mindedness as much as reflect an enduring truth about their job: The court’s  traditional review of cases is actually very narrowly constrained. Justices are resolving very technical, practical questions about how to read a specific statute or law, not waxing philosophical about ideology.

The outcome of cases is actually not predictable in advance simply by knowing a justice’s political leanings.

No quarrel in Quarles

Take the unanimous decision on June 10 in Quarles v. US (pdf)a criminal case. Brett Kavanaugh, appointed by Donald Trump and reviled by liberals, wrote an opinion for the unanimous court:

The exceedingly narrow question in this case concerns remaining-in burglary. The question is whether remaining-in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

Jamar Alonzo Quarles, convicted of a felony in Michigan, argued that one of his previous crimes shouldn’t be used against him for sentencing under a federal “armed career criminal” statute that makes punishment more severe for repeat offenders. Based on Quarles’ counsel’s reading of Michigan burglary law’s “remaining-in” clause, outlining intent, he didn’t have the necessary mindset for the previous offense to count as the act of a career criminal.

The justices then had to decide how to read “remaining-in”—not whether Quarles is indeed a career criminal, whether the system is fair, or anything else. And they agreed that “remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.” (Emphasis in the original).

The decision is based on rules of statutory interpretation and prior cases. The whole court agreed that the Armed Career Criminal Act doesn’t define burglary specifically because that would make each variation in state criminal laws seem to exempt a defendant from the federal act if the definitions didn’t perfectly match. In fact, however, the idea behind the federal law was to capture as many offenses as possible, not to exclude crimes that don’t meet a word-for-word definition. If the court read the law like Quarles did, it would be concluding that Congress “enacted a self-defeating statute,” Kavanaugh wrote, and that was deemed an incorrect interpretation by all.

Very dry stuff, nothing to shout about on a Sunday chat show. Yet mundane, technical questions are the bulk of what justices decide.

The Quarles case shows that while decisions are called “opinions,” the justices’ personal feelings aren’t really the basis for deciding cases. Sonia Sotomayor is a liberal and Kavanaugh is a conservative, but Sotomayor let Kavanaugh’s words speak for her when it came down to the very narrow question before the court in Quarles. 

Who is a person?

In another case decided on June 10, Return Mail, Inc. v. US Postal Service (pdf), the court was split—and not in the way pundits would have predicted. Sotomayor wrote the majority opinion, joined by Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Kavanaugh. In other words, the liberal Sotomayor spoke for the conservatives, while Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan dissented.

Return Mail is a case so technical that it makes Quarles read like a thriller. The question presented was relatively simple. Is the US postal service (USPS) a “person” for the purposes of patent law?

The issue was whether the postal service could challenge the validity of a patent owned by Alabama-based technology company Return Mail under the Leahy Act, which created the administrative body governing intellectual property. Return Mail argued that the USPS, a government entity, wasn’t a “person” and thus could not avail itself of the administrative review process. The USPS claimed it was a “person” in this context and a federal court agreed.

The majority of the Supreme Court sided with Return Mail, however. It concluded that the government isn’t a “person” and can’t institute review proceedings at the Patent Board. As Sotomayor explained, “In the absence of an express definition of the term ‘person’ in the patent statutes, the court applies a ‘longstanding interpretive presumption that person does not include the sovereign,’ and thus excludes a federal agency like the Postal Service.”

Breyer wrote the dissent, acknowledging the presumption the majority relies on, but arguing that it isn’t a hard-and-fast rule that can never be overcome. In his view, in this particular context, the government could count as a person for the purposes of administratively challenging a patent.

This case represents the real work justices do, analyzing words in a legal context, not practicing politics. Landmark cases that make history—like Brown v. Board of Education, which integrated racially segregated schools, or Obergefell v. Hodges, which legalized same-sex marriage—are the exception and not the rule. And even then, they are based on similar questions of how to read the US Constitution according to longstanding rules of interpretation. Last year, when Masterpiece Cakeshop, a case asking whether a Christian in Colorado could refuse to bake a cake for a same-sex marriage based on his religious beliefs, the majority decided for the baker based on perceived discrimination in earlier proceedings. However, the right to marriage equality outlined in Obergefell was reaffirmed.

All agree again

The third case resolved on June 10 was Parker Drilling Service Management v. Newton (pdf) was a unanimous decision, with the opinion written by Thomas, arguably the most conservative justice.

The matter stems from a class-action suit oil-rig worker Brian Newton filed demanding wages for time he and colleagues spent on standby at Parker Drilling’s drilling platforms off California. Though employees couldn’t leave, they also weren’t paid to hang around, a practice which Newton argued violates state employment laws.

The justices were asked to resolve the question of whether California laws could apply to areas governed by the federal Outer Continental Shelf Lands Act. The law denies states jurisdiction over the outer continental shelf and deems an adjacent state’s laws relevant only if they are applicable and consistent with other federal laws. In Newton’s case, the nine justices concluded that California’s minimum-wage requirements couldn’t be considered in a matter involving employment on the outer continental shelf because the federal Fair Labor Standards Act already addresses work on federal territories and leaves no gap that California’s laws might fill.

The unanimous conclusion in no way indicates that all nine justices are anti-labor. The first case that this group decided together after Kavanaugh joined was a unanimous decision written by Ginsburg in November, Mount Lemmon Fire District v. Guido (pdf), finding for firefighters who lost their jobs and claimed age discrimination.

What these cases show is that the justices are much more often in agreement than news coverage would lead Americans to believe. This is because they aren’t issuing opinions on abstract concepts like liberty or justice, but analyzing narrow matters.

Matters as yet undecided

At this point, 24 matters have yet to be resolved before the term is up in late June. Some of the casees will be hard-fought and narrowly decided.

It’s quite possible that the justices will decide some cases along predictable political lines, like last year’s ruling on Trump’s “Muslim ban” in which conservatives—including “swing” vote Anthony Kennedy, who has since been replaced with Kavanaugh—approved the president’s order while liberals dissented. However, the current court, with its 5-4 conservative majority, hasn’t been quite so predictable. Trump’s appointees—Gorsuch and Kavanaugh—have disagreed with each other on many issues. Each has regularly agreed with liberals.

This is good news by all, whatever political persuasion. The court’s unpredictability is a strong sign it is working as it was designed to do by the Constitution.