Appearances Can Be Deceiving: October Term 2013 Moved the Law to the Right
Erwin Chemerinsky, Appearances Can Be Deceiving: October Term 2013 Moved the Law to the Right, 17 Green Bag 2D 389 (2014).
This essay on the Supreme Court’s October 2013 Term notes that the conservative position prevailed in almost every case. In many ways, the Supreme Court’s October 2013 Term fits a familiar pattern. Justice Kennedy was the justice most often in the majority (94% of the cases decided) and in the majority in every 5-4 ruling of the term. In other ways the Term was different. Sixty-five percent of the cases were decided unanimously. By comparison, in October Term 2012, 49% of the decisions were unanimous and in October Term 2011, 44% were unanimous. The Court achieved unanimity in a number of controversial matters by not deciding the significant issues before it. Sometimes, the unanimous result is misleading because the Court was deeply divided as to the reasoning. Many of the most important cases – in terms of their impact on the law and on society – were divided decisions. The October 2013 Term was also significant for the narrow holdings that made it easier to gain unanimity, but rulings that open the door to future litigation.