Vol. 30 No. 5 (June 2020) pp. 74-80SCOTUS 2018: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT, by David Klein and Morgan Marietta (eds). Cham: Switzerland: Palgrave Macmillan, 2019. 146pp. ISBN: 978-3-030-11254-7. ISBN: 978-3-030-11255-4 (eBook).
SCOTUS 2019: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT, by David Klein and Morgan Marietta (eds). Cham: Switzerland: Palgrave Macmillan, 2020. 158pp. ISBN: 978-3-030-29955-2. ISBN: 978-3-030-129956-9 (eBook).
Reviewed by Alison Merrill, Department of Political Science, Susquehanna University. Email: merrill@susqu.edu.
Throughout history, the United States Supreme Court has served as a major player in shaping the character and direction of public policy through the decisions it hands down. As an institution, however, the implications and impact of the Court's decisions are often overlooked or not understood by the majority of citizens. This lack of understanding can often be attributed to a lack of clear, immediate discussion of the rulings and their meanings. SCOTUS 2018 and SCOTUS 2019 are the first two installments in a new series aimed at increasing the understanding of recent Supreme Court decisions and promoting discussion on the topic. These volumes dedicate single chapters to the major cases from each term, written by noted scholars of both law and American politics. To aid in the clarity of understanding the rulings and their meanings, each chapter follows the same general outline; specifically, the chapters are organized by first the details of the ruling, then what it means for legal debate, and finally what the implications of the ruling are for public policy or partisan politics (p. vi). By organizing the discussion of the rulings in a systematic manner, the editors aim to provide a useful and meaningful addition to the public discussion of the Constitution and the Court. The result is a volume that can be understood by anyone interested in learning more about this institution and its impact on the development of the American political system.
Chapter 1 of each volume begins with an introduction to each term. This chapter identifies the contentious questions that the Court addressed (which are then covered in more detail in later chapters) and neatly summarizes each case in the volume in a single sentence. Perhaps what is most useful is that following the summary of the cases, Marietta then groups the cases by issue area or topic (e.g., [*75] dignity, social facts, criminal law, separation of powers, etc.). In these sections, he reviews the main question raised in each case that falls under these topic headings and proceeds to discuss not only how the Court reached their decision, but also the major implications and big takeaways from these decisions and how they fall into a broader understanding of the development of American jurisprudence. Further, Marietta discusses the impact of judicial ideology on the outcome of the case, and briefly touches on how certain justices voted and the importance of vote breakdowns in these cases. These first chapters in each volume are crucial in setting the stage for why the cases included in the volume are important for understanding the significance and impact of the Supreme Court in American politics and the daily lives of Americans.
SCOTUS 2018 covers issues concerning digital privacy, partisan gerrymandering, voting rights, public sector unions and coerced speech, gay right versus religious liberty, internet taxation, and the four corners doctrine and presidential power. The editors note that while these are all important questions which affect the daily lives of Americans in complex and varied ways, perhaps the most important events in this term were the arrival of Justice Gorsuch, the retirement of Justice Kennedy, and the dark shadow cast by the contentious confirmation hearings for Brett Kavanaugh. Despite the increased attention to personnel changes on the Court in 2018, the Court also dealt with major cases focusing on social facts and the “prevailing circumstances the Court must recognize in order to apply constitutional principles, especially when those facts are in contention” (p. 1).
For these reasons, the discussions surrounding social facts stood out as particularly strong in this volume, which include Chapters 2, 3, and 8. In Chapter 2, David Klein reviews CARPENTER V. UNITED STATES (2018) which raised the question of how easy it should be for the government to access information stored and transmitted (often unknowingly) from cell phones when it suspects someone of criminal activity. Here, Klein points out that the Court's decision rested heavily on the reasonable expectation of privacy test created in KATZ V. UNITED STATES (1967), and that enough observations taken from an individual's cell phone to determine location can erode that person's reasonable expectation of privacy, even when in a public place. Therefore, if authorities want access to cell location information, a warrant is typically required. This is an example of the majority acknowledging the pervasiveness of cell phone use in modern society. As Klein points out, however, it actually raises more questions about which technological intrusions [*76] are permissible and which go too far that the Court will have to address in future cases.
Chapter 3 deals with the gerrymandering cases GILL V. WHITFORD and BENISEK V. LAMONE, and how the Court can know if representation is unequal enough to trigger a constitutional violation. Alex Keena, Michael Latner, Anthony McGann, and Charles Smith unpack how even though the Court declined to rule on the merits of partisan gerrymandering, this issue will most likely come before the Court again, with an increased emphasis on social science and statistical measures developed to calculate and determine partisan bias. According to the authors these future gerrymandering cases will be interesting because the Court in GILL displayed a division over their trust in social science expertise, with Justice Sotomayor expressing a great deal of trust, and Justice Roberts, the new swing vote on gerrymandering, dismissing the application and use of partisan gerrymandering statistics as “sociological gobbledygook” (p. 37). Regardless, the authors indicate that these cases provide an important foundation for how social facts will be used by the Court moving forward.
Finally, Chapter 8 examines SOUTH DAKOTA V. WAYFAIR and the constitutionality of internet taxation and the state's power to levy sales tax on a company that only does business with the state’s citizens over the Internet, with no physical presence within the boundaries of the state. As in CARPENTER, the Court acknowledged that the Internet has become a pervasive part of contemporary society, and as such, has changed the concept of a company’s presence to one that does not have to be purely physical. Marietta does a good job of walking through the intricacies of the Commerce Clause as it pertains to state latitude in regulating trade and commerce and connecting the changing economic marketplace to our social reality. This is another solid example of how the Court uses contemporary social facts to adapt precedent and interpret the Constitution. Marietta concludes that this case is particularly interesting in that it was Kennedy's final majority opinion, so whether either Justice Gorsuch or Justice Kavanaugh following his lead in placing “evolving social facts at the core of constitutional interpretation” (p. 98) will also continue to affect how the Court applies and considers social facts moving forward.
SCOTUS 2019 details issues concerning four key areas: defendant's rights, fair elections, separation of powers, and the establishment of religion. More specifically, the Court examined questions pertaining to the death penalty, double jeopardy, blood alcohol tests, excessive fines, jury selection, and re-imprisonment during supervised release [*77] in the area of criminal law. It was these discussions around criminal law (Chapters 4-7, 9, 10, 12) that stood out the most in this volume regarding the unpredictability of how the current members of the Court vote and form coalitions. Here, the various authors note that, even though there is a reliable 5-4 conservative to liberal majority on the current Court, there was not a consistent set of outcomes in favor of the government and government prosecutors. Rather, in Chapter 9, Mark Graber notes how the disputes over the death penalty, particularly MADISON V. ALABAMA, “illustrate the constitutional trench warfare that has occupied death-penalty lawyers for several decades, with each side fighting for very few feet of constitutional space” (p. 101). In other words, these four cases were about capital punishment at the margins and focused much more on the ideological divisions between the justices regarding the explicit and implicit compromises that have been made pertaining to the application of the death penalty since 1976. Graber also notes the potential influence that Justice Gorsuch is likely to have compared to the rest of his colleagues in moving away from the current “uncomfortable middle” (p. 102) to a more extreme version of capital punishment sentencing, which includes less emphasis on last-minute appeals.
Two disputes that upheld government prosecutions dealt with double jeopardy, with 7 justices agreeing that the double prosecution of possessing an illegal firearm by both the state and the federal government does not violate double jeopardy, and blood alcohol tests administered to an unconscious motorist. In the first case, GAMBLE V. UNITED STATES, the majority opinion rested heavily on the principle of stare decisis, or adherence to precedent. Under this decision, the application and use of stare decisis seems to be manipulable, leading to confusion over when and how justices will continue to apply precedent. Importantly, “Justices of opposite ideological persuasions voted together, yet on both sides of the debate; liberals and conservatives voted together, but in opposite directions on the question of overruling precedent” ( p. 58). In this case, Justices Ginsburg and Gorsuch wrote separate dissents that each focused on the how prosecutions for the same crime should be viewed from the perspective of the individual defendant, in accordance with the Bill of Rights’ emphasis on protecting individual liberty. Little concludes by speculating about how the GAMBLE decision and manipulability of stare decisis might impact the anti-abortion statutes expected to reach the Court in the coming years. The strength of Chapter 5 lies in its final three pages where Little discusses the implications of GAMBLE for broader issues, most notably, stare decisis and this current composition of the Court. [*78]
Finally, the two cases in which the majority sided with defendants over the federal government dealt with race and jury selection, as well as the right to a jury trial during post-conviction proceedings. In Chapter 4, Jennifer Bowie details how FLOWERS V. MISSISSIPPI uncovered a clear Batson violation in using race to strike potential jurors, but that this was a very narrow decision. Despite the narrowness in not making any new policy concerning the use of peremptory challenges, Bowie notes the importance of FLOWERS in illustrating the complexity of Batson challenges, the injustices of the jury selection process, and the Court’s continued commitment to hold states accountable for the use of peremptory challenges in the jury selection process.
The last criminal law case of the 2019 term covered in SCOTUS 2019, UNITED STATES V. HAYMOND, the Court dealt with the Sixth Amendment issue of right to counsel in post-conviction proceedings. Stephen Simon provides a comprehensive overview of supervised release, and the shift to a more rehabilitative view of punishment. Here, Simon hones in on why Supreme Court opinions can be so complex, particularly when they are 5-4 decisions. Simon provides a useful breakdown of the plurality and dissenting opinions, along with a detailed analysis of the opinion authored by Justice Breyer (the deciding vote). Breyer’s plurality opinion upheld the Court's ruling in favor of Haymond and the right to a jury trial if facing harsher sentencing post-conviction than was permissible prior to conviction and supervised release, but following more of the logic articulated by the dissenting justices. This is a good example of how one vote can make all the difference; often, the justification for the vote is important but confusing, so looking at just the vote does not always provide the full picture of how the justices made their decisions.
As Lawrence Baum notes, “What the Supreme Court does is largely a product of its membership” (p. 145). Thus, another helpful addition to these volumes are chapters following the discussion of the cases that focus on the institutional structure and composition of the Court. In SCOTUS 2018, the final three chapters examine Neil Gorsuch's first two terms on the Court (Chapter 9), the implications of Anthony Kennedy's retirement (Chapter 10), and the contentious confirmation hearings of Brett Kavanaugh (Chapter 11). SCOTUS 2019 concludes with a look at Justice Kavanaugh's first term (Chapter 14), starting with expectations about Kavanaugh based on his background and performance during his confirmation hearing, before moving into a discussion of his voting record and authored opinions during the 2019 term. These final chapters in each volume are thus quite helpful in understanding how the decisions were made [*79] and what to expect of the Court with this membership moving forward. For people who are not scholars of the Court, these chapters will aid in the understanding of the importance of each member and why it is sometimes not easy to predict how the Court will rule in a particular case.
While these volumes are incredibly useful for contextualizing the decisions that the Supreme Court makes each term, it is unclear how the editors determine what constitutes a “major decision” of the Supreme Court. In other words, why these select (seven to eleven) decisions over others? Chapter 13 in SCOTUS 2019 concedes that a book this size is limited in which cases it can cover in detail, and draws readers' attention to other important and notable decisions that are useful in understanding the direction the Court is moving. This chapter echoes the introduction in that it neatly summarizes the issue(s) presented in these other decisions, and how and why the justices voted in these cases. Where I think this chapter is the most useful is where it discusses how these cases connect to the others covered in this volume. I think future volumes in this series should include a chapter like this, with other notable cases that are not as salient as the ones covered in more detail. I think it will add more dimension to the subsequent volumes and increase the contextualization and discussion of the meaning of Supreme Court rulings that is often missing from coverage of the Supreme Court.
Not only do SCOTUS 2018 and SCOTUS 2019 concisely present and discuss major Supreme Court rulings, they also provide very accessible discussions of very complicated and timely issues. These volumes are great for anyone who is interested in learning more about the Court and the impact this institution has on American politics. Further, these will be useful and helpful additions to any faculty member who teaches Constitutional Law and wants to provide another perspective for their students regarding questions before the Court, and the implications of these decisions beyond the legal arena.
CASES:
BENISEK V. LAMONE, 585 U.S. _____ (2018).
CARPENTER V. UNITED STATES, 585 U.S. ____ (2018).
FLOWERS V. MISSISSIPPI, 588 U.S. ____ (2019).
GAMBLE V. UNITED STATES, 587 U.S. ____ (2019). [*80]
GILL V. WHITFORD, 585 U.S. ____ (2018).
KATZ V. UNITED STATES, 389 U.S. 347 (1967).
MADISON V. ALABAMA, 586 U.S. ____ (2019).
SOUTH DAKOTA V. WAYFAIR, 585 U.S. ____ (2018).
UNITED STATES V. HAYMOND, 588 U.S. ____ (2019).
© Copyright 2020 by the author, Alison Merrill.
