(via Twitter)

1. Supreme Court mostly unanimous on issues people care less about or where they want to punt.

2. On highly ideological issues, Court still divided 5-4, with Kennedy usually as swing Justice.

3. Just because this term did not feature many blockbuster decisions doesn’t mean Court less divided.

4. Biggest civil case:McCutcheon campaign finance case-down slope to more $ in politics http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html …

5. Biggest criminal case is cell phone case which updates 4th Amendment for 21st century.

6. Cases like #Harris queue up Court conservative majority to continue project of overruling lib. precedent

7. The 2016 presidential election likely will determine direction of Court for a long time.

Kenneth Jost flags a BFD cert denial in Minority TV Project v. FEC. Read Ron Collins on the cert. petition, and Judge Kozinski’s 11 reasons why the Supreme Court should have reconsidered the distinction between broadcast and other media.

Near the end of Justice Alito’s majority opinion in the Hobby Lobby case today, he writes that it is not the Court’s job to question the “wisdom” of Congress in using the compelling interest test in RFRA, but the Court applies that RFRA test strongly, and in a way which shows the Court apparently giving great deference to Congress’s judgment about how to balance the government’s interest in generally applicable laws with the accommodations of religious freedoms. It reminded me of Justice Scalia’s pleas in Windsor last term for deference to Congress on the need for the Defense of Marriage Act.

The Court has shown no such deference when it comes to the need for campaign finance regulation or to protect the voting rights of racial minorities and others. The Roberts Court has overturned or limited every campaign finance law it has examined (aside from disclosure laws). It has struck down a key provision of the Voting Rights Act. How much deference did Congress get in those cases? None.

Well when is Congress wise and entitled to deference? When the Court agrees with Congress’s approach. Let’s call that “faux deference,” to go with the “faux-nanimity” of the rest of the term.

Justice Alito’s opinion for the Supreme Court in the Harris v. Quinn case gives all kinds of reasons for overturning the key pro-union case of Abood. Yet the Court majority does not pull the trigger.  Why not?  This seems to be a common move of the Roberts Court, as I explained in Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012): “Anticipatory overruling occurs when the Court does not overrule precedent but suggests its intention to do so in a future case.” It is one of the tools the Roberts Court uses to appear moderate and minimalist.

For example, the Court did not immediately overturn the preclearance provision of the Voting Rights Act when it had the opportunity to do so in the 2009 NAMUDNO case. Instead it signaled the Act was unconstitutional, and then overturned it in the 2013 Shelby County case. As I’ve explained, the Court in Shelby County relied upon dicta in NAMUDNO as though that earlier case had settled it. Similarly, on the campaign finance side, Chief Justice Roberts and Justice Alito signalled the coming overruling of the ban on corporate general treasury spending in elections in the Wisconsin Right to Life case, and then pulled the trigger with the 3 other conservative Justices in Citizens United.

But just because the Court takes two or three cases to reach its highly ideological decision doesn’t make it any less ideological or any more comporting with principles of judicial minimalism or respect for precedent.