Supreme Court Justices Split Along Unexpected Lines In Three Cases

With less than two weeks left in the U.S. Supreme Court term, the justices handed down four decisions on Monday. Defying predictions, three were decided by shifting liberal-conservative coalitions.

Here, in a nutshell, are the results, and the fascinating shifting votes:

Dual sovereignty upheld, with Ginsburg, Gorsuch dissenting

By a 7-to-2 vote, the court reaffirmed its 100-year-old rule declaring that the state and federal governments may each prosecute a person separately for the same crime, without violating the Constitution’s double-jeopardy clause. Dissenting were the court’s leading liberal justice, Ruth Bader Ginsburg, and one of its most conservative justices, Neil Gorsuch.

Racial gerrymandering case thrown out with a mix of liberals, conservatives

Spurning pleas from Virginia Republicans, the court let stand decisions by the lower courts finding that 11 state house districts were racially gerrymandered in violation of the Constitution. The Supreme Court said the Republican-dominated state House had no legal standing to appeal to the Supreme Court on its own when the state senate and the state attorney general had decided against appealing.

Justice Ginsburg wrote the opinion for the 5-to-4 majority. She was joined by conservative Justices Gorsuch and Clarence Thomas, and liberal Justices Sonia Sotomayor and Elena Kagan. Dissenting were conservative Justices Samuel Alito, Brett Kavanaugh, and Chief Justice John Roberts, as well as liberal justice Stephen Breyer.

Uranium ban upheld again with an ideological mix

The court upheld Virginia’s ban on Uranium mining. By a 6-to-3 vote, the justices said that the state law was not superseded by the federal Atomic Energy Act (AEA).

Writing for the court majority, Justice Gorsuch said the AEA gives the federal government the authority to regulate nuclear safety, but not the authority to regulate mining itself. Fellow conservatives Thomas and Kavanaugh joined the Gorsuch opinion in full, but liberal Justices Ginsburg, Sotomayor, and Kagan agreed only with his bottom line. They refused to sign on to Gorsuch’s broad language about matters that they said “sweep well beyond the confines of this case.”

Dissenting were Chief Justice Roberts and Justices Breyer and Alito.

One traditional 5-4 split

The only classic conservative-liberal split on Monday came in a case testing whether a private corporation that runs a public access TV channel in New York City is a public forum that, like a public park, cannot discriminate against speakers.

The court, by a 5-to-4 vote, concluded that the public access channel here was owned by Time Warner, not by the city. And because it was privately owned, the channel could not be sued for refusing to air a movie.

Justice Kavanaugh wrote the decision for the five conservative justices, declaring that “[M]erely hosting speech by others is not a traditional, exclusive public function.”

Therefore, channel operators cannot be sued for violating the First Amendment guarantee of free speech. At first blush, at least, the decision would seem to preclude First Amendment lawsuits against private platform operators, like Twitter and Facebook, though Kavanaugh warned that the decision should not be read “too broadly.”

Dissenting were the court’s four liberal justices.

What’s still left?

On Thursday, the court is expected to hand down more of the 20 remaining decisions on its docket. Among those are the three blockbuster cases of the term:

  • The American Legion v. American Humanist Association: A case from Maryland that tests whether a giant World War I memorial in the shape of a Latin cross is, as the challengers maintain, a symbol of Christianity that violates the Constitution’s ban on establishment of religion. The objectors are seeking its removal to private property and an end to taxpayer funding of the cross.
  • Rucho v. Common Cause (North Carolina) Lamone v. Benisek (Maryland): Cases from North Carolina and Maryland that test whether there is any constitutional limit to extreme partisan gerrymandering that serves to entrench one-party domination of congressional seats in states that are more narrowly divided.
  • Department of Commerce v. New York: State and local governments are challenging the Trump administration’s plan to add a citizenship question to the 2020 census. The Census Bureau’s own experts have warned that adding the question will lead to a serious under count of the population.

These three decisions (and 17 others) remain in the wings.

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