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Justices do agree sometimes: Robust defence of digital-age privacy marks a less-divisive term

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WASHINGTON - Supreme Court justices found more common ground than usual this year, and nowhere was their unanimity more surprising than in a ruling that police must get a judge's approval before searching the cellphones of people they've arrested.

The term that just ended also had its share of 5-4 decisions with the familiar conservative-liberal split, including Monday's ruling on religion, birth control and the health care law.

But the 9-0 cellphone decision last week may be the most consequential of the justices' 67 rulings this term. It signalled a high degree of skepticism about the government's authority, without any need to satisfy an impartial judge, to sweep up vast quantities of information that individuals store on computers and cellphones, as well as other records that companies keep online.

The scope of that ruling will await future cases, including possible challenges to NSA's surveillance and collection of massive amounts of Americans' telephone records. But the justices indicated that constitutional privacy protections, embodied in the Fourth Amendment, will apply strongly to cases involving computers and digital storage, said Elizabeth Wydra, the liberal constitutional Accountability Center's chief counsel.

Chief Justice John Roberts' opinion for the court "was a broad and sweeping ruling in favour of privacy," Wydra said.

The cellphone case was one of 42 in which the court was unanimous about the outcome, either 9-0 or 8-0 in cases where a justice sat out. That level of consensus is far higher than in recent terms.

The cases include high-profile disputes in which the administration could not attract a vote for its preferred result, even from the two justices appointed by President Barack Obama: Elena Kagan and Sonia Sotomayor. The court struck down Obama's recess appointments to the National Labor Relations Board, the 35-foot buffer zone around Massachusetts abortion clinics and the criminal conviction under a chemical weapons treaty of a woman who tried to poison her husband's lover.

"This was a huge rebuke for taking the very extreme positions the administration put before the court, particularly for executive power grabs," said Carrie Severino, chief counsel of the conservative Judicial Crisis Network.

Yet, as even Severino acknowledged, the unanimity sometimes masked serious disagreement among the conservative justices about the grounds for the decisions.

In the recess appointments case, Justice Anthony Kennedy joined with the liberal justices to endorse reasoning that preserved, at least in theory, the president's authority to make the temporary, recess appointments when the Senate takes a break from its work.

In the chemical weapons treaty case, Justices Antonin Scalia, Clarence Thomas and Samuel Alito would have imposed serious limits on the federal government's powers relating to treaties.

In the case over abortion clinic buffer zones, Roberts and the liberals banded together to preserve a 2000 high court ruling upholding a different kind of buffer. In a pointed opinion that would have overruled the earlier case, Scalia said, "I prefer not to take part in the assembling of an apparent but specious unanimity."

This division among conservatives led Supreme Court lawyer Andy Pincus to conclude that the term actually was a good one for the Obama administration. "Given the stakes for the administration, these were significant victories," Pincus said.

Yale Law School professor Heather Gerken said she has seen the Roberts court take small steps in voting rights and campaign finances cases, only to return with landmark rulings a few years later.

Based on the current crop of cases, Gerken said, "It's hard to know whether it's a temporary reprieve for progressive causes or a sign that the court is moderating its positions."

Ten cases, including the last decision of the term in favour of companies that hold religious objections to paying for contraceptives under the Obama health care law, came out 5-4. And in these, Kennedy was in the majority each time.

He sided with conservatives to strike down aggregate limits on campaign contributions and to uphold mainly Christian prayer at the start of town council meetings. Joining the liberals, Kennedy's vote was decisive in forbidding states from relying solely on an intelligence test score for death row inmates in borderline cases of mental disability and in upholding a federal law preventing a "straw" purchaser from buying a gun for someone else.

When the justices return for their new term on Oct. 6, they may find appeals asking them to take on several hot-button social issues, including same-sex marriage, abortion and guns. New cases involving social media and digital privacy also are pending.

And questions of retirement will arise anew, with Justice Ruth Bader Ginsburg approaching a birthday — her 82nd, in March 2015 — that she once set as a marker for leaving the bench. Three other justices, Stephen Breyer, Kennedy and Scalia, are older than 75.

Some court observers already are looking ahead to 2016.

"It underlines the importance of the next election. So many issues are in a 5-4 balance. The next president could have as many as three nominations with the potential to alter the balance on the court for a generation," Severino said.

___

Follow Mark Sherman on Twitter at: http://www.twitter.com/shermancourt

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