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5-4 Splits: Supreme Court Decides Significant Cases by One Vote Margins

Posted August 17, 2018

[Editor’s Note: President Trump’s nomination of Brett Kavanaugh, following Justice Kennedy’s retirement, has once again focused attention on the Supreme Court.  Although traditionally the Justices have sought to issue unanimous decisions in their most significant cases, for example, Brown v. Board of Education (prohibiting segregated schools) and United States v. Nixon (the Watergate tapes case) recently, some of their most important decisions have been decided by a one vote margin.  In this week’s blog post, Law Clerk Abbie Rosen briefly summarizes some of the significant 5-4 decisions issued by the Supreme Court last term.  Jon Karon]

By: Abbie Rosen

There are nine Justices on the Supreme Court who decide the most significant cases in the US court system. They hear oral arguments, review cases, and write opinions that are binding law on the rest of the country. As you know, or might have guessed, they do not always agree. This is when justices break from the majority and write dissents, explaining their disagreements with the majority opinion. Decisions get particularly dicey when the court splits, issuing 5-4 decisions. It’s not that these decisions are any less the law, the problem is they are more likely to be overturned if the issue comes up again in front of a differently situated bench. In its last term, the Supreme Court issued many important decisions by a 5-4 margin. They are summarized below.

For Instance, in Trump v. Hawaii (Decided June 22, 2018), the majority ruled that the latest version of President Trump’s Travel Ban was constitutional. Justice Breyer argued that the exemption system (for permanent residents, asylum seekers, refugees, students, and children) needed to be reviewed to be sure it was constitutional, and Justice Sotomayor argued that the President’s prior anti-Muslim statements should have been considered by the court as evidence of an improper motive in issuing the ban.

In Abbott v. Perez (Decided June 25, 2018), the majority of justices overruled a Texas court which had previously declared new congressional districts to be illegally and racially gerrymandered. The Court instead held that all but one of the new districts were proper, and that the plaintiffs had to prove that the state was acting with discriminatory intent. The dissent, by Justice Sotomayor, argued that the Supreme Court did not have to review the case and should not have interfered.

In a case out of California, National Institute of Family and Life Advocates v. Becerra (Decided June 27, 2018), the Supreme Court held, on free speech grounds, that the state could not require pro-life clinics to disclose that they’re unlicensed, or require that licensed clinics provide clients with information on how to obtain low-cost abortions.  The dissent, by Justice Breyer, argued that making clinics disclose that they were unlicensed was a consumer protection issue. He also argued that this decision was in direct contradiction of a previous case in which the court upheld a statute that required doctors to inform women seeking abortions about adoption services.

 Epic Systems Corporation v. Lewis (Decided May 21, 2018), challenged the legality of arbitration agreements between workers and employees that require employees to submit any claims against their employer to binding, single party arbitration. The Court ruled the arbitration agreements were enforceable, and prevented the plaintiff from filing a class action lawsuit. In her dissent, Justice Ginsburg argued that the majority’s decision undercut laws protecting workers’ rights. She argued that legal remedies, including class actions, should be considered “mutual aid or protection” a right protected by the National Labor Relations Act.

In a closely watched decision, Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Decided June 27, 2018), the Supreme Court decided that non-union members cannot be required to pay agency fees for the union’s efforts on behalf of all workers. Justice Kagan’s dissent argued that unions often have exclusive representation rights with the employer, where unions have to help in disputes and bargain for everyone, and therefore those who do not pay agency fees are getting their services for free. Justice Sotomayor’s dissent expressed concern with how the Court has recently been interpreting the First Amendment.

Finally, in Carpenter v. United States (Decided June 22, 2018), the Supreme Court ruled that cell-site data (The information your wireless carrier keeps about your movements) is protected by the Fourth Amendment. Therefore, the data cannot be obtained without a search warrant. The dissents primarily argued that the information belonged to the wireless carrier, and that therefore the plaintiff had no standing.

These examples illustrate why there is so much attention being paid to Justice Kennedy’s successor. Over the course of Justice Kennedy’s time on the bench, he has historically been the “swing-vote” when it comes to the divide between conservative and liberal justices on closely contested decisions. As you can see from the examples above, these decisions often have direct influence in our lives. This new appointee, whoever they are, will have a lasting effect on the laws of this country.

All of the above discussed decisions and dissents can be read here:


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