Left to right, panelists Ted Olson, Sherrilyn Ifill, Neal Katyal, and moderator Jeff Rosen, at the Aspen Ideas Festival on Wednesday, July 2, 2014
Left to right, panelists Ted Olson, Sherrilyn Ifill, Neal Katyal, and moderator Jeff Rosen, at the Aspen Ideas Festival on Wednesday, July 2, 2014 Credit: Jordan Curet / Aspen Daily News

ASPEN – Supreme Court experts at the Aspen Ideas Festival on Wednesday reviewed the tenor and highlights of the court’s major decisions during the last term, which concluded this week.

One point of discussion was the number of cases decided on a 5-to-4 basis. The nine Supreme Court justices were split on a 5-to-4 basis in 10 of the 73 cases they decided this term, according to SCOTUSblog. That was 14 percent of the cases, and the average over ten terms is 17 percent.

Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund, said many of this term’s 5-to-4 decisions were clearly split on ideological lines.

“When you see the 5-to-4 split, the nature of the split is so powerful, so visceral … it’s like two different worlds that the justices are living in,” she said.

Ted Olson, an attorney with Gibson, Dunn and Crutcher, and a former U.S. solicitor general who successfully argued Bush v. Gore and the Citizens United cases, said this term also had some “very, very sharp concurring opinions.”

A concurring opinion is issued when justices agree on how a case should be decided, but have different reasons for reaching the same conclusion.

“In several of the cases, Justice Scalia read aloud concurring opinions, which you don’t do in the Supreme Court,” Olson said.

He explained that on “decision day,” the justice who wrote the majority opinion will typically read a summary of his or her decision. And, occasionally, a justice will read a dissenting opinion. But read a concurring opinion? No.

“In the years that I’ve been watching the court, I’ve never seen anybody read, or summarize aloud, a concurring opinion,” said Olson, who has argued 60 cases in front of the Supreme Court.

Regarding whether the court was truly split or not, Neal Katyal, a law professor at Georgetown University and a former acting solicitor general with 21 cases in front of the Supreme Court, pointed out that the justices also acted with “remarkable unanimity” this term on several important cases.

He cited Riley v. California, in which the court ruled 9-to-0 that police have to get a search warrant to search the digital information on a cell phone they find on someone they’ve just arrested.

“This was a very powerful pro-liberty decision signed by every justice on the Supreme Court.,” Kaytal said.

But Ifill questioned the extent of the court’s unanimity.

“While I think it’s true there has been some great unanimity in the judgments, the fundamental tensions that have to do with the kind of issues that probably most people in this room care about, remain,” she said to a full house at the Doerr-Hosier Center.

And Ifill questioned the practical effect of the decision in the Riley case.

“In a place like Baltimore, where I’ve lived for the last 20 years, I don’t think that this is going to particularly stop the police,” Ifill said. “They are quite able to get warrants fairly easily. They enjoy a tremendous amount of deference from judges.”

She also said she still had concerns about the court’s 2013 decision in Maryland v. King, which allows the police to swab the cheek of someone they’ve arrested for a DNA sample.

“If your cell phone’s got information in it, your DNA’s got serious information in it,” she said.

Views on Hobby Lobby

The panel also reviewed the court’s 5-to-4 decision in Burwell v. Hobby Lobby Stores, which was released on Monday with an opinion written by Justice Samuel Alito.

“The question in the Hobby Lobby case,” explained Georgetown’s Katyal, “is whether a closely-held corporation that objects to the part of Obamacare that requires them to pay for contraceptives” can successfully claim that such a mandate “violates religious freedom principles that Congress has laid down in a statute called RFRA, the Religious Freedom Restoration Act.”

Apparently so.

“What Justice Alito said is, this is a closely-held corporation, they have rights, too, just like ordinary people,” Kaytal said.

Olson observed that the Supreme Court has ruled in the past that corporations have various rights under both the First and Fourth Amendments.

“Corporations have rights against searches, they have rights when the government wants to take property of corporations,” he noted.

Nonetheless, Olson said he was “sympathetic to the dissent” in the Hobby Lobby case.

“I don’t know where the line can be drawn,” he said. “This is just a minefield for lawyers. What in the world is a ‘closely-held’ corporation? How many shareholders? How small a number is it?

“And does the corporation have religious convictions?” Olson asked. “Certainly its owners do, but they have decided to engage in commerce.”

He added that the Hobby Lobby case has “got a lot of issues that people are going to be litigating for years.”

Ifill was incredulous about the Hobby Lobby decision.

“Many of us are astonished to learn that for-profit corporations have feelings and sincere beliefs,” she said.

And she raised the question of whether a company can now refuse to extend benefits to a same-sex or interracial couple based on religious beliefs.

“This decision is absolutely astounding to me,” she said to applause. “This is a powerfully-disturbing decision that we should all be concerned about.”

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of the Aspen Ideas Festival. The Daily News published a version of this story on Thursday, July 3, 2014. The original published version mis-stated the number of split cases during the court’s most recent term.

Brent Gardner-Smith, the founder of Aspen Journalism, and who served as AJ’s executive director until August 2021 and as editor from 2011-2020, is the news director at Aspen Public Radio. He's also been...