Justice Kennedy's Retirement (Part 2)

In the previous post, we reviewed Anthony Kennedy's votes and authored opinions in a wide range cases that deeply divided the Court. These were cases where the Justices split 5-4 along partisan political lines, and where the change in a single vote in the majority would have reversed the Court's decision.

What might well be unexpected to some--because Kennedy has been accurately viewed as a--or the--"swing vote" on some significant, controversial issues--is that his overall record has actually been that of a politically conservative Republican. Whether stopping the vote count in Bush v. Gore or invalidating restrictions on corporate campaign spending in Citizens United, or on diverse issues such as Obamacare, the Trump travel ban, gun rights, employer rights, voting rights, and search & seizure and privacy, Kennedy routinely joined with the other Republican Justices on the politically conservative Republican side of the issue.

But Kennedy has largely been known--beloved and praised, or reviled and ridiculed--for the exceptions in his record. His "swing vote" legacy is built upon a few areas of the law. On some highly charged social and cultural issues, he broke from the Court's conservative Republican majority and joined with the liberal Justices. Indeed, with Kennedy gone and a Trump nominee forthcoming, these are the issues about which Democrats, liberals, and, on some, libertarians are most concerned.

Let's consider those:
Gay Rights
Kennedy's name, more than any other, will be associated with the Supreme Court's landmarks invalidating sexual-orientation discrimination and mandating equal treatment for gays, lesbians, and same-sex couples. The culmination of that line of cases, no doubt, was the 5-4 decision in Obergefell v. Hodges (2015). There, Kennedy joined the Court's four liberals and authored the majority opinion to invalidate laws that restricted marriage to heterosexuals and, concurrently, to recognize the right to marry for same-sex couples.
He similarly authored the majority opinion for the Court's 5-4 decision, two years earlier, in U.S. v. Windsor (2013), invalidating provisions of the so-called "Defense of Marriage Act (DOMA) that denied federal marital benefits to legally married same-sex couples.
Before those cases, he authored the majority opinions in Lawrence v. Texas (2003), invalidating laws that criminalized same-sex intimacy ["Homosexual Sodomy" in the late Justice Scalia's ad nauseam refrain.], and in Romer v. Evans (1996), invalidating a state law that specifically prohibited legal protection against sexual-orientation discrimination.
[In these cases, Kennedy confirmed the worst suspicions of the most conservative members of the Reagan administration who opposed the Kennedy nomination because he was a "gay lover"--the cruder term was used in private conversation with me.]

On the other hand, Kennedy did join the 5-4 decision, in Boy Scouts of America v. Dale (2000), allowing the Boy Scouts to exclude gays from leadership positions, on the basis of freedom of association, despite a state law prohibiting sexual-orientation discrimination.

Affirmative Action
Kennedy authored the 4-3 majority opinion [Only 7 Justices participated: Scalia had died and Kagan recused herself] in Fisher v. University of Texas (2016), approving and, thereby, saving the use of race as one of many factors in a university admission process, as a narrowly tailored means to achieve the compelling interest in student diversity.

On the other hand, thirteen years earlier, in Grutter v. Bollinger (2003), where a 5-4 majority had upheld the use of racial preferences in university admissions, recognizing the value of racial diversity in education, Kennedy dissented; he argued that the use of race should be subject to much closer judicial scrutiny and more limited than what the majority had allowed.
And a mere two years before Fisher, in Schuette  v. Coalition to Defend Affirmative Action (2014), Kennedy wrote the leading plurality opinion for himself, Roberts and Alito. [Also part of the Court's 6-2 majority was Scalia, who voted with the majority but wrote his own opinion joined by Thomas; and Breyer who authored his own sole opinion. Sotomayor dissented in an opinion joined by Ginsburg; Kagan did not participate.] Kennedy approved a state law (adopted in the aftermath of that Grutter decision) that prohibited the consideration of race (or sex) in university admissions, despite the undeniably racially-charged campaign to promote the passage of the law and despite the fact that the supposedly merit-motivated law left alone countless other factors used in the admissions process that have nothing to do with academic merit--e.g., athletics, legacy, family wealth and contributions, geography, etc., etc.
[In my view, this was a shamefully hateful law that obviously had nothing to do with academic merit--since countless non-merit factors were left untouched--and much about racial animus. IAE, the point here is that Kennedy approved it.]

Right to Choose/Abortion Rights
In the landmark 5-4 decision in Planned Parenthood v. Casey (1992), Kennedy joined Justice O'Connor's opinion to reaffirm Roe v. Wade and to establish the proposition that an "undue burden" on a woman's right to seek an abortion, prior to the viability of the fetus, was unconstitutional.
And more recently, in Whole Woman’s Health v. Hellerstedt (2016), Kennedy joined the liberals in the 5-3 majority [Scalia had died earlier in the term], invalidating Texas restrictions on abortion service providers because they imposed substantial burdens on the right to choose, without any actual health benefits.

On the other hand, in the most recent right to choose case, Nat'l Institute of Family and Life Advocates v. Becerra (2018), Kennedy joined the 5-4 majority opinion, authored by Justice Thomas, invalidating California's requirement that clinics providing pregnancy services advise patients about legal abortion options, deeming that to be a violation of free speech.

Capital Punishment
Kennedy joined the Court's liberals in several deeply divided decisions that limited the application of the death penalty. In Atkins v. Virginia (2002), he joined the 6-3 majority opinion of Justice Stevens, holding that the execution of persons with significantly diminished mental capacities violates the prohibition against cruel and unusual punishment.
Three years later, in Roper v. Simons (2005), he wrote the 5-4 majority opinion, holding that the execution of persons who were minors when they committed their crimes also violates the prohibition against cruel and unusual punishment.
And three years after that, in Kennedy v. Louisiana (2008), he authored another 5-4 majority opinion, this time holding the same for the non-homicidal rape of a child.

On the other hand, in that same year, in the badly splintered decision in Baze v. Rees (2008)--one plurality opinion, 4 concurring opinions, and a dissent--Kennedy joined Chief Justice Roberts' 3-Justice plurality opinion that upheld Kentucky's method of lethal injection, despite the occasionally improper administration which would result in an excruciatingly painful death. According to the Kennedy-joined plurality, the cruel and unusual punishment prohibition would be violated only where there was an intolerable risk that the infliction of pain was wanton and unnecessary.

To be sure, there are other areas of the law in which Kennedy's participation was welcomed by ideological liberals--sometimes and sometimes not. The point is that as a "swing vote" that provided liberals with a last hope on a decidedly conservative Court, Kennedy's record was, at least in that regard, a very checkered one.

As we saw in the previous post, Kennedy's record on many issues was indisputably--and very--politically conservative. And in this post, we saw that even in those areas where Kennedy "swung" to the liberal side of the issues, he was not necessarily a totally reliable vote.

The purpose in these two posts has only been to be clear-eyed about Justice Kennedy's record and about what will really be missing from the Court in his absence. It was not to criticize Kennedy. Indeed, as I have repeated numerous times, in my view Kennedy has been admirable. He has been the least politically, lopsidedly-partisan and ideological Justice on this Court.

In short, more than the other Justices, Kennedy seems to have behaved like a judge. The "swing vote" label, which he apparently did not like, reflected that he was not necessarily tied to one ideological, partisan side in the cases. He typically appeared to be open to vote with the other side of the Court's political aisle.

He will be missed by many Court watchers. Include me among them.

Justice Kennedy's Retirement (Part 1)

(The travel ban decision or Kennedy's retirement? A wonderful student I bumped into yesterday suggested addressing the retirement first. So here goes.)
This post was updated  the following day to correct the omission of Kennedy's dissenting vote in the Obamacare case.

Anthony Kennedy, who announced last Wednesday that he will retire from the Supreme Court, was President Reagan's 3rd choice to fill the vacancy created when Lewis Powell took his leave in 1987. Reagan was mortified and angered when his first two nominations, Robert Bork and Douglas Ginsburg, were unsuccessful. Only then did he settle on Kennedy.

Staunch conservatives in Reagan's administration, who had urged him to nominate Bork and Douglas, were adamantly opposed to the seemingly more moderate Kennedy. Among other specific reasons--as shared to me in very crude terms--was that Kennedy would support gay rights.

And indeed he did. Yes, he not only voted repeatedly against sexual-orientation discrimination and in favor of advancing equal treatment for gays and lesbians and same-sex couples, but he authored the landmark opinions in most of those cases, and he did so in soaring, heartfelt language.

Kennedy is most often thought of in terms of the positions he took in these and other culturally-charged cases. And he was warmly embraced by liberals for his willingness to break from the conservative Republican mold in these cases. But for the same reason, he was scorned and even despised by many on the right. Not only socially conservative politicians and commentators and members of the public, but also some of his colleagues on the Court would denounce his jurisprudence, ridicule his opinions, and cast aspersions on the integrity of his judicial analysis. The late Justice Antonin Scalia, for example, often fumed at Kennedy's opinions and left little doubt that he did not hold Kennedy or his judicial competence in particularly high esteem.

That, in turn, made Kennedy even more of a hero to political liberals.

(Disclosure: I admired Justice Kennedy, both for his positions on gay rights and other social issues, and for his behaving like a judge--i.e., not always towing the partisan political line like most of his colleagues do on the Court, both Republicans and Democrats.)

But, we need to put that in context. Justice Kennedy was no liberal. That may be good, bad, indifferent, or something else. But in assessing Kennedy's record and, thus, what the Court is losing by his retirement, let's get real.

Kennedy was a conservative. Again, good, bad, indifferent, or something else, he was a conservative who voted on most issues like a politically conservative Republican. Not always. And not on some extremely important and controversial social issues. But yes, most of the time.

Let's consider Kennedy's record on some important issues:
Presidential Election
Kennedy voted in the 5-4 majority, in Bush v. Gore (2000), to halt the counting of votes and insure George W. Bush's election.
Obamacare
When the 5-4 majority, led by Chief Justice Roberts in National Federation v. Sebelius (2012), saved the Affordable Care Act by upholding the individual mandate, Kennedy voted with Scalia, Thomas and Alito in a joint dissent.
Trump Travel Ban
Most recently, he voted in the 5-4 majority, in Trump v. Hawaii (2018), to uphold President Trump's 3rd attempt to ban travel into the United States from several designated countries, most of them majority Muslim.
Campaign Finance
Kennedy is the one who authored the majority opinion, for the 5-4 decision in Citizens United v. FEC (2010), that invalidated the limits on corporate expenditures on political communications.
He then voted in the 5-4 majority, in McCutcheon v. FEC (2014), to invalidate the limits on the aggregate amounts that can be contributed to political candidates and parties.
Gun Rights
He voted in the 5-4 majority, in D.C. v. Heller (2008), to hold that the 2nd Amendment guarantees an individual right to bear arms separate from a state militia.
He then voted in the 5-4 majority, in McDonald v. Chicago (2010), to hold that the Heller individual right to bear arms is fundamental and, thus, applies to the states as well as the federal government.
Voting Rights
A few years ago, he voted in the 5-4 majority, in Shelby County v. Holder (2013), to invalidate those sections of the Voting Rights Act of 1965 that required jurisdictions with a history of voting discrimination to obtain a pre-clearance from the Justice Department when changing their voting laws.
Just recently, Kennedy authored the 5-4 majority opinion, in Husted v. Philip Randolph Institute (2018), approving Ohio's program to actively cancel the registration of voters who have not recently participated in some election activity.
Employer-Employee Relationship
This past term, he voted in the 5-4 majority, in Epic Systems v. Lewis (2018), to approve employer conditions that compel workers to submit their grievances individually to arbitration.
Most recently, he voted in the 5-4 majority, in Janus v. AFSCME (2018), to invalidate state laws that required nonmembers of a public sector union to pay "agency fees" or "fair-share" dues to help cover the union's cost of collective bargaining and other representation on the nonmembers' behalf.
Search & Seizure & Privacy
A few years ago, Kennedy authored the majority opinion, for the 5-4 decision in Florence v. County of Burlington (2012), that approved strip searching a driver, who had been arrested for a minor traffic offense, when that minor offender was placed in a jail cell during "processing--supposedly  to insure safety and discipline, even though there was no suspicion of drugs, weapons, or other contraband. Actually, 2 separate strip searches of that "offender" at 2 different jail cells were approved. Oh, the fact that the "offender" was totally innocent was apparently irrelevant.
That decision had been foreshadowed several years earlier, in Atwater v. Logo Vista (2001), in which Kennedy voted in the 5-4 majority to uphold the arrest, the handcuffing, the frisking, the searching, and the jailing-during-"processing" of a woman for a seat belt violation--i.e., her children had undone their seat belts while she was driving. Again, there was no suspicion of drugs, weapons or other contraband.
[These, in my view, are among the very worst decisions of the modern Court. And Kennedy was instrumental in creating a majority in both cases.]
Then there's the new 5-4 decision, in Carpenter v. U.S. (2018), in which Chief Justice Roberts authored the majority opinion holding that the government should have obtained a warrant before tracking a cellphone user's movements and whereabouts, over a 4 month period, by using his cellphone company's location data. Kennedy dissented, arguing that no warrant should be required.

Ok, that is not the record of a liberal Justice. Or even a centrist. Every one of those votes and opinions are what we would expect of a politically conservative Republican. And that is mostly the way Justice Kennedy behaved throughout his tenure on the Court.

That being said...Kennedy is best known--whether admired by liberals or reviled by conservatives--for his positions and even leadership on certain other issues. Social, cultural issues that, despite landmarks that might otherwise have settled them, are still front and center in our national political divide.

We'll take a look at that more liberal aspect of Kennedy's record, as well as some prospects for the Court with the forthcoming Trump-filled Kennedy replacement in the next post.

The Cakeshop case: What the Court Did NOT Decide

The Supreme Court today ruled in favor of the baker in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In short, the baker had refused on religious grounds to create a cake for a same-sex couple's marriage celebration. The state of Colorado determined that the baker violated the state's law which prohibits discrimination by businesses on the basis of sexual-orientation. The Supreme Court has now reversed that determination and did so on the basis of religious freedom.

BUT! And the BUT is the critical part of the case.

Listening to some commentators and some partisans this morning, it's doubtful they had actually read the Court's decision. Or maybe they have simply been characterizing the decision to fit their preconceptions or preferences.

The 7-2 decision, authored by Justice Anthony Kennedy, held--and only held--that Colorado's Civil Rights Commission was hostile to the baker's religious beliefs and thus did not give him a fair and neutral hearing. Period!

The Court did NOT decide that bakers may refuse to bake cakes for gays or lesbians or same-sex couples.
The Court did NOT decide that bakers may refuse to bake a cake for a same-sex marriage celebration.
The Court did NOT decide that bakers (or any other business) may violate a state's anti-discrimination law.
The Court did NOT decide that bakers (or any other business) may violate such a law even on religious grounds.
The Court did NOT decide that religious freedom outweighs the rights of gays, lesbians or same-sex couples.
The Court did NOT decide that exceptions to anti-discrimination laws must be made for religious objections.
The Court did NOT decide First Amendment religious freedom entitles religious objectors to exemptions from an anti-discrimination law--or any law at all.
The Court did NOT overturn its 1990 decision in Oregon v. Smith that any "an otherwise valid law" defeats religious objections.
The Court did NOT rule any of the foregoing ways on the basis of freedom of expression either.
And the Court certainly did NOT decide that discrimination or other unequal treatment of gays, lesbians, or same-sex couples in public accommodations was constitutionally permissible--for religious or any other reasons.

In fact, the Supreme Court actually reaffirmed that neither "religious [n]or philosophical objections...allow business owners and other actors in the economy to deny protected persons [which includes "gay persons and gay couples"] equal access to goods and services under a neutral and generally applicable public accommodations law."

In this case, the Supreme Court merely found that the determination of the Colorado commission against the baker was not "neutral." In terms of the Court's 1990 Oregon v. Smith precedent, that Colorado determination was not "otherwise valid" because it unlawfully assessed the baker's religious belief as illegitimate and subjected it to ridicule. In the Supreme Court's own words, the Colorado commission "disparage[d]" the baker's religious faith "by describing it as despicable, and also characterizing it as merely rhetorical--something insubstantial and even insincere."

The Court made clear that Colorado's anti-discrimination "interest could have been weighed against [the baker's] sincere religious objections in a way consistent with the requisite religious neutrality." But that, instead, the Colorado commission treated the baker's beliefs with contempt and consequently failed to conduct a fair hearing.

For that reason the Court sided with the baker in this case.
NOT because religious objections to same-sex marriage outweigh the equal rights of same-sex couples to goods and services in the marketplace.

Supremely Liberal? (Part 2--A Year for Democrats)

We already saw that this was a good year at the Court for liberals. (See Part 1.) On issues with clear liberal versus conservative divides--e.g., law & order versus rights of the accused, worker rights versus business, social change versus traditional values, etc.--the Court sided with the ideologically liberal position most of the time. Indeed, in those cases where such issues divided the Justices themselves, the liberal side won 77% of the time, or more than three times as frequently as did the conservative side.

But what if we sharpen the focus to those cases that presented the deepest partisan divides between Republicans and Democrats? Cases involving such highly partisan-charged issues as immigration, the death penalty, gay rights, racial disparities, voting rights, social welfare programs, etc.? Those cases involving issues where politicians of the 2 major parties--as well as the party faithful--disagree most fervently?

Let's look at the Court's record this past year in terms of those issues. Yes, the Court's record on ideologically-charged cases was markedly liberal. But what was it on just those cases involving the especially partisan-charged issues?

Take a look:

(click to enlarge)

Note that the Court not only sided with the "Democratic" positions most of the time, but did so 67% of the time, or in more than twice as many cases as it didn't. Note also that the Court's 4 liberals (Justices Ginsburg, Breyer, Sotomayor, and Kagan) voted in support of the Democratic position in every case. Stated otherwise, none of the 4 ever voted on the "Republican" side of a partisan-charged issue.

As for the Court's more conservative members, Justice Alito never voted on the Democratic side of an issue in these cases, and Justices Scalia and Thomas virtually never did. Chief Justice Roberts did so 20% of the time, or in one fifth of the partisan-charged cases. Perhaps most notably, swing-vote Justice Kennedy supported the Democratic position more than half of the time (53%) this past term.

Consequently, with the 4 liberals voting on the Democratic side of the issue in every partisan-charged case, only one more vote was needed to make a "Democratic" majority, With Kennedy voting on that side more than half the time, and Roberts doing so in 20% of the cases, it's evident how the Democratic side had the Court's majority as frequently as it did.

To underscore just how significant the Court's record on these partisan-charged cases was this past year, let's look at a comparison with the year before. And let's focus on the major shifts:

(click to enlarge)

67% versus 40%!  Quite a contrast. A shift from the previous term in which less than half the decisions (40%) favored the Democratic position, to this term in which two thirds (67%) of them did.

Consider also the shift in Justice Kennedy's voting in these partisan-charged cases: from less than a third Democratic (30%) to more than a half (53%). And Chief Justice Roberts' voting: from 10 to 20%.

Yes, in cases this past term raising issues involving racially disparate redistricting, racially disparate housing policy, imprisonment of an immigrant, deportation of an immigrant, the rights of a death penalty defendant, displaying the Confederate flag, Obamacare subsidies, and same-sex marriage--in all of these and more, the Supreme Court (i.e., a majority of the Justices) supported the position favored strongly by Democratic politicians and voters.

Of course, that also means that the Court (i.e., again, the majority) in these cases rejected the position strongly favored by Republicans. Let's simply invert the graphs above to display the pro-Republican numbers. Take a look at the "Republican" decisional record of the Court and the Justices' corresponding voting for this past year:

(click to enlarge)

Again, the 4 liberal Justices never voted for the "Republican" position in these highly partisan-charged cases. On the other hand, Justices Scalia, Thomas, and Alito either always did or virtually.so. Chief Justice Roberts wasn't nearly as one-sided as any of the aforementioned 7 Justices were. And Justice Kennedy, although he is a Republican, supported that side of the issue less than half the time. The result: the Court decided "Republican" in only one third of the cases.

Now, contrasting with the previous year:

(click to enlarge)

Justice Kennedy's voting for the Republican position in these partisan-charged cases dropped substantially, from more than two thirds the previous year (70%) to less than half this past term (47%). Chief Justice Roberts' support for those same positions dropped somewhat, from 90 to 80%. In large measure because of the change in Kennedy's record, and to a lesser extent that of Roberts, the Court's overall support for the Republican side of the issues this year (33%) was about half of what it was the year before (60%). 

Soooo, a liberal shift in the Court's ideological record? Unquestionably, and significantly. Indeed, even on the most highly partisan-charged issues, the Court's record shifted in support of the "Democratic" positions. And this, even though a majority of the Justices are registered Republicans appointed by Republican Presidents.

Is this shift permanent? At least an omen of a directional change? Just a fleeting phenomenon? An aberration? Maybe just the result of the particular collection of cases the Court decided this year?

Well, the answers can't be found in just one year's worth of decisions and votes. But what can be said is this. Whatever the particular variety of cases might have been this past year, the voting records of 7 of the Justices remained basically unchanged. The 4 liberals virtually always voted one way in the ideologically-charged and partisan charged cases, and 3 of the conservatives (Scalia, Thomas, and Alito) virtually always voted the other way.

Additionally, Justice Kennedy remained the swing vote. But this year he swung liberal and "Democratic" significantly more than in past years. And Chief Justice Roberts, both in his votes and his tone, has evinced a softer conservative leaning than that of the Court's 3 most conservative members.

Keep a close eye on Kennedy and Roberts--and, of course, on any possible retirements and replacements. There's always lots to follow with the Court. And we shall see.

Supremely Liberal? [Graphs will tell.] (Part 1)

Did the Supreme Court shift to the left this past term? Especially in the aftermath of decisions that saved Obamacare subsidies and protected same-sex marriage, there has been some commentary--and a general sense--that the Court has done just that.

So did the Court actually lean more politically liberal in its rulings this year?

In short, yes. As in, you bet! The change from the recent past was considerable.

An examination of the Court's entire decisional output and the Justices' voting over the course of the October 2014 term (i.e., the first Monday in October 2014 to the end of June 2015) reveals that the ideologically liberal side of the issues did quite well overall--and emphatically so. Not only did the Court adopt the liberal position more frequently than it has in past years, but it actually adopted the liberal position this term more frequently than the conservative one. Much more frequently!

Before we look at the numbers and the graphs, let's be clear what we're talking about when we say ideologically "liberal" and "conservative." We use those terms here in the sense they are customarily used in political discussion and judicial studies. So liberal versus conservative would, for example, refer to crime control (pro-prosecution) versus rights of the accused (pro-defendant), labor/workers rights versus business, business regulation versus deregulation, personal injury plaintiffs versus professional malpractice defendants, social change versus traditional values, secularism versus religion, and the like. (And as is customary in judicial studies, we restrict ourselves to divided decisions--i.e., where both the liberal and conservative positions were strong enough to secure the support of one or more Justices and, thus, split the Court.)

So, just how well did the liberal side of the issues fare this past term at the Supreme Court? And how did the Justices vote on those issues? Take a look:

(click to enlarge)

77%!
Yes, in 77% of the cases in which there was a strong enough liberal versus conservative issue that the Justices were divided, a majority of the Justices--i.e., the Court--adopted the liberal position.

Note that the liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) each voted for the ideologically liberal position in virtually every case. The "swing vote," Kennedy, supported that position more than half the time. And even the much more conservative Chief Justice Roberts voted for the liberal position in more than 1/3 of the cases.

How does that compare to the previous year?

Well let's see. The following graph juxtaposes the Court's decisional record for this term and last year's--i.e., the October 2013 term (2013-14). The graph also includes both years' voting records of Justice Kennedy and Chief Justice Roberts. Their records changed the most dramatically and made the most difference between the two years. Take a look:

(click to enlarge)

As the graph shows, the Court more than doubled the frequency with which it adopted the liberal position in a case. 77% this year versus 33% the year before.

Coincidentally--actually, not a coincidence, but likely a significantly contributing cause for the change in the Court's record--Justice "swing vote" Kennedy's record this year was also more than twice as liberal as it was the year before.

Chief Justice Roberts' record was also considerably more liberal this year. He rarely voted on the liberal side last year. But by sharp contrast this year, as previously mentioned, he supported the liberal position more than a third of the time.

So... no doubt about it. The Court took a liberal turn in its decisions this year.

But what about the really controversial hot-button cases? How did the Court do in cases that presented the most highly partisan-charged issues? Issues like Obamacare and same-sex marriage, of course. But also like the death penalty, immigration, claims of racial discrimination, gun rights, campaign spending, environmental regulations on business, etc. Those issues that not only have a liberal versus conservative component, but where Democrats and Republicans are most deeply divided.

In the next post we'll restrict ourselves to cases with those kinds of issues. We'll see how deep this year's liberal shift was.

Marriage Decision: Recap

Disclosure: No surprise to readers of New York Court Watcher or anyone who knows me, I am extremely pleased that the Supreme Court has recognized the equal right of same-sex couples to marry. My personal opinion aside, here's an unadorned outline of the Court's decision and the dissenting opinions.

As readers of this....No, as readers and listeners of the news around the world now know, the United States Supreme Court ruled that same-sex couples have the same right to marry as do opposite-sex couples. The Justices released their decision near the end of the term, along with several other blockbusters. (See e.g., posts on Wrap Ups, Supremely Polarized, Obamacare Subsidies, Confederate Flag, Lethal Injection.)

The dust is now settling--at least the bare fact of the decision is sinking in to both ecstatic supporters and enraged opponents. There's been an awful lot of commentary. Emphasis on awful. But some that is thoughtful and even wise.

There will be no attempt here at being thoughtful or wise--or awful. Just some straightforward distillation of the actual constitutional arguments made by the majority, and those offered in the several dissenting opinions.
[We will examine some of the awful commentary and analysis in a later post.]

Here's the recap of Obergefell v. Hodges:

Decision

• Same-sex couples are constitutionally entitled to the same right to marry as are opposite sex couples.
• The vote was 5 to 4.
• Majority: Justice Kennedy, joined by Ginsburg, Breyer, Sotomayor, and Kagan [I.e., Kennedy + the 4 liberals]
• Dissent: separate opinions by Chief Justice Roberts, and Justices Scalia, Thomas, and Alito [I.e., by each of the Court's 4 more conservative Justices--1) Roberts's opinion was joined by Scalia and Thomas; 2) Scalia's opinion was joined by Thomas; 3) Thomas's opinion was joined by Scalia; 4) Alito's opinion was joined by Scalia and Thomas]
• [Procedurally, the decision reversed the decision of a federal appeals court (the 6th Circuit) that sustained "one man-one woman" laws in Kentucky, Michigan, Ohio, and Tennessee. The other federal appeals courts around the country to address the issue had all held such laws to be unconstitutional.]

Justice Kennedy's Opinion for the Court/Majority

• Marriage is an institution of transcendent importance, and the right to marry has long been constitutionally protected by the Court.
• The legal status of gays and lesbians, previously viewed as immoral and ill, has shifted greatly since the late 20th century.
• This Court has previously invalidated laws that discriminated against gays and lesbians--e.g., laws that denied them the right to claim discrimination, that made same-sex intimacy a crime, and that denied federal benefits to legally married same-sex couples.
• The "liberty" protected by the 14th Amendment [The provision in the Constitution that guarantees protection against infringement by state governments.] has been interpreted by this Court to include most of the rights listed in the Bill of Rights, as well as other fundamental liberties of "individual dignity and autonomy," such as the rights to privacy, to childrearing, to procreation, and to marry.
• The issue in this case is not whether there is a right to same-sex marriage, but whether there is "sufficient justification for excluding" same-sex couples from the fundamental right to marry.
• The exclusion demeans and stigmatizes same-sex couples.
• It does this even though there is no difference between same- and opposite-sex couples when it comes to the fundamental right to marry and to the many government rights, benefits, and responsibilities tied to a valid marriage.
• Laws against same-sex marriage not only violate the fundamental right to marry, but also the equal protection of the laws.
• As with the laws prohibiting inter-racial marriage, which this Court held to be unconstitutional in Loving v. Virginia (1967), the laws prohibiting same-sex marriage are unjustified, unsupportable, and incompatible with the requirements of equality.
• Individuals denied fundamental rights need not wait for legislative action to be protected.

Chief Justice Roberts' Dissenting Opinion

• There are strong arguments in social policy and fairness for allowing same-sex couples to marry.
• While the policy arguments may be compelling, the legal arguments are not.
• A state's choice to retain the meaning of marriage that has persisted throughout history and across cultures cannot be called irrational.
• The right to marry does not include the right to change that meaning.
• The Court ought not to impose its will upon the states and shortchange the democratic process.
• A more modest and restrained view of this Court's role would be more skeptical of its moral insights and more sensitive to its unelected status.
• If you favor expanding same-sex marriage, "by all means celebrate today's decision...Celebrate the opportunity for a new expression of commitment to a partner."
• "But do not celebrate the Constitution. It had nothing to do with it"

Justice Scalia's Dissenting Opinion

• I don't have strong personal feelings about the substance of today's "decree" or what the law says about marriage.
• But I do care about "who it is that rules me."
• Today's decision is the furthest extension of the Court's "naked judicial claim" to create "liberties."
• That claim is fundamentally contrary to our system of democracy in which the People, the States are free to adopt laws, even if they offend the "reasoned judgment" of the Justices.
• The opinion--"judicial Putsch"--of the majority reflects "hubris," and is "pretentious," "egotistic," and "profoundly incoherent."

Justice Thomas's Dissenting Opinion

• The majority recognizes a "liberty" in the Constitution that the Framers would not recognize.
• The decision is detrimental to the liberty that the Framers did seek to protect.
• The decision distorts the text of the Constitution and inverts the constitutional relationship between individual and government.
• In light of history, the term "liberty" in the Constitution refers to "the power of loco-motion...without imprisonment or restraint"--to nothing "broader than freedom from physical restraint."

Justice Alito's Dissenting Opinion

• The American people have been engaged in a debate about same-sex marriage.
• The federal courts have now put an end to that.
• "The Constitution says nothing about a right to same-sex marriage."
• Some states worry that abandoning the traditional understanding of marriage will lead to marriage's further decay.
• It is beyond this Court's authority to say that a state may not adhere to that view.

Well there it is.

To be sure, I've had to restrain myself from commenting while outlining the various opinions.

But I have tried to present a fair representation of the majority's and various dissenters' arguments.

And I have tried to do so without including or excluding too much or too little, hoping to capture the essentials.

Anyone interested in reading the entire decision, here is the link to Obergefell v. Hodges on the Supreme Court's website.

In the next New York Court Watcher post on the Supreme Court, I'll address some of the awful commentary I alluded to above. There may well be legitimate arguments, both pro and con, about the legal issue of same-sex marriage--and about the role of the Supreme Court. But much of what has been and will undoubtedly continue to be spouted is nonsense. We'll examine some of those arguments.

Additionally, we'll return our attention to the New York Court of Appeals--some important decisional and personnel developments.

AND, it's 2 1/2 weeks till the Saratoga meet opens. For psychological and emotional preparation, we need to recall some of last year's highlights. (If you can't wait for a Saratoga fix, here's a link to a previous year's highlights.)

Supreme Blockbusters Coming (Part 4--Confederate Flag [now decided])

The Court released its decision in the Confederate flag case Thursday morning while I was working on this post.
Of course, I would have correctly predicted the ruling.
Not really.

Seems that I was giving the Justices more credit for neutral decisionmaking than they deserve--and I don't think they deserve much to begin with.
Bottom line: the 4 liberal Justices voted against the Confederate flag; 4 of the 5 conservatives voted for it; Justice Thomas (the Court's sole African-American) voted with the liberals on this one.

Let's get to the case itself and the specific legal ruling:

Texas allows specialty (so-called "vanity") license plates as selected and even designed by motorists.
The Sons of Confederate Veterans (Confederate Sons), an organization honoring soldiers who fought for the South, wanted a specialty license plate with a design depicting the Confederate flag and identifying the organization.
Texas, through a board of its motor vehicles department, rejected the request.
The basis for the rejection was the board's standard that "it might be offensive to any member of the public."
The Confederate Sons claimed that the rejection was a violation of free speech.

The federal appeals court (i.e., the 5th Circuit) agreed with the Confederate Sons.
But the U.S. Supreme Court reversed and, instead, sided with Texas.
It did so by a 5-4 vote. (Walker v. Sons of Confederate Veterans, decided 6/18/2015.)

As already noted, all 4 liberal Democratic Justices (Ginsbug, Breyer, Sotomayor, and Kagan) supported the state's rejection of the Confederate flag design.Their 5th vote, making them the majority, came from the Court's only African-American, Justice Thomas. In the past, he has understandably made clear his strong hostility to symbols associated with racism.
The other 4 conservative Republican Justices all supported the Confederate Sons' claimed free speech right.

Hmmm.
Liberals all against the Confederate Sons; conservatives (except Thomas) for them.
Just another one of those coincidences.
Another one of many similar ones with this Court.

My own expectation was that the decision would be the opposite. And that the vote would be 6-3 or 7-2 in favor of free expression rights for the Confederate Sons. Or stated differently, against the state's right to engage in viewpoint discrimination.

I underestimated the ideological tug this case would exert on the Justices.
Not the tug for or against free expression rights.
But sympathy versus hostility for the Confederate flag and, maybe, for the Confederate Sons who wanted to display it.
Or perhaps it is entirely coincidental that the 4 liberal Justices weighed all the legal considerations--pro and con free speech--and just happened to reach a decision against the display of a Confederate flag design.
And entirely coincidental that 4 conservative Justices--only Thomas missing--would weigh the very same free speech considerations and just happen to reach a pro-Confederate flag decision.

Let's be real. What are the odds that these results are purely coincidental? That views and feelings about the Confederate flag, or about those who wanted to display it, played no part in the votes?

Now what about the actual legal/constitutional issue in this case, and the competing legal/constitutional arguments?

The question the case formally presented to the Court was whether the personally selected expressions on the specialty or "vanity" license plates are "government speech" (i.e., Texas speaking), or that of the motorists who selected or designed the special expressions for their plates.

If the specialty expressions are those of the state, then the state can pick and choose what it would like to say. A state could freely choose not to display a Confederate flag on its license plates--just as the Texas motor vehicles department chose not to do.
But if the specialty expressions are those of the motorists who selected or designed them, then their free speech rights are triggered. The motorists would be free to express their viewpoints--unless they involved obscenity, violence-incitement, or other unprotected speech.

So, are the personally selected expressions on the Texas specialty or "vanity" plates Texas speaking or the motorist speaking? That was the legal issue on which the Justices split.

The precedents, as one might expect, can support either position:
Pleasant Grove City v. Summun (2009)--the city, which accepted privately donated monuments for its park, had the right to reject a monument to the "Seven Aphorisms of the Summun Church." Held to be "government speech," 9-0 decision.
Rust v. Sullivan (1991)--the federal government, which provides medicaid for indigent health services, has the right to prohibit health care professionals providing such subsidized care from advising about abortion services. Held to be "government speech," 5-4.
Rosenberger v. University of Virginia (1995)--the state university, which funds student activities, could not refuse to fund an Evangelical Christian student group's religious magazine. Held to involve the student group's protected free speech, 5-4.
Wooley v. Maynard (1977)--the state, New Hampshire, could not stop Jehovah Witnesses from covering the state motto, "Live Free or Die," on the license plates on their cars. Held to involve the objectors' protected free speech, 6-3.

As noted in the dissenting opinion authored by Justice Alito, Texas had already allowed over 350 different logos and designs on specialty or "vanity" plates. They ranged from the names and logos of schools, colleges, universities, and countless organizations and sports teams (including out-of-state competitors of Texas teams), to favorite recreational activities, soft drinks, and foods.

Alito posed the question: Would anyone "really think that the sentiments reflected on these specialty or "vanity" plates are the views of the State of Texas and not those of the owners of the cars?"
I'm with Alito on this question at least, and I would have voted with him and Roberts, Scalia, and Kennedy on that particular point.
It seems a wholly unrealistic stretch to label the logos and designs, which are personally selected, by private motorists', and appear on the license plates on their own cars, to be the state speaking--"government speech."

Consider this.
There is currently another case in which North Carolina has allowed "Choose Life" on the specialty or "vanity" plates. But the state will not allow "Respect Choice." In short, it has allowed its motorists to display an anti-abortion viewpoint, but not a pro-choice one.
The federal appeals court (i.e., the 4th Circuit) unanimously disagreed with the state. It disagreed that this was a case involving "government speech." Instead, the court ruled that the state had violated the motorists' free speech rights by engaging in "blatant viewpoint discrimination." (ACLU v. Tata [2014].)

So how would the liberal Justices of the Supreme Court view the state's refusal to permit motorists to express pro-choice sentiments? Especially while the state allowed other motorists to express pro-life ones? Would the liberal Justices simply view the state's political viewpoint discrimination as valid "government speech," or would they recognize it as unconstitutionally favoring some free speech over others?

But, as they say, that's not the end of the story.

Finally, few people deplore the displaying of the Confederate flag more than I do. To me, as to others, it is a symbol of the fight to maintain slavery and of the later opposition to civil rights.
[Yeah, okay, it reflects "states rights"--to retain slavery and to continue racial segregation and discrimination.] And to me, and others, it persists as an expression of subtle and not-so-subtle racism and white supremacy, nostalgia for the pre-Civil War way of life in the South, and hatred for the "Northern aggression"that ended it--uhhhh, the "Northern aggression" that ended slavery and later imposed racial integration.

Bob Jones University v. U.S. (1983) is a case I believe is relevant and helpful here. In that case, the Supreme Court rejected the church-related university's claim for tax deductions. The Court did so because the university promoted and practiced beliefs of racial discrimination. Although such deductions were generally available to educational institutions, the Court ruled that the nation's fundamental policy against racial discrimination outweighed whatever religious liberty interests of the university were at stake.
[BTW, the Court's opinion was authored by conservative Nixon appointee, Chief Justice Warren Burger; the sole dissenter was William Rehnquist, who Reagan later appointed to succeed Burger as Chief.]

As in the Bob Jones case, it would seem that the Court in the Confederate flag case could have once again recognized a fundamental policy interest in eradicating vestiges of racial discrimination, segregation, and slavery--of hateful symbols that undermine the quest for greater racial harmony.
Instead of engaging in the fiction--absurd to me, as it was to Alito &co. in the dissent--that the personally selected and designed expressions on specialty or "vanity" license plates are the state speaking (the so-called "government speech"), why not simply recognize them for what they are? They are private expressions.

But they are private expressions on a government-sponsored forum--i.e., on the government-offered and sponsored specialty or "vanity" plates.

Free speech is not absolute, and the government need not sponsor speech--i.e., it need not produce and offer license plates--that celebrate or promote what is antithetical to fundamental policy values.
Government certainly need not offer or sponsor a forum for expression that promotes or celebrates hatred, violence, or other anti-social attitudes or conduct.
Individuals certainly have the right of free speech to express homophobia, xenophobia, misogyny, racism, and the like. But they have no right to have the government sponsor such expression on a government created and offered forum.

The dissent in Walker seems to have been right in concluding that the personally selected expressions on specialty or "vanity" plates is private expression, and not "government speech."
Nevertheless, it still seems that the the state's rejection of the Confederate flag design was valid.
But not because the personally selected expressions on these license plates are "government speech."
Rather, because the government need not sponsor expressions that promote or celebrate beliefs that are inimical to our fundamental national policies against racial discrimination, racial segregation, and slavery.
And again, let's be frank, the Confederate flag is tied to all of those.
Government surely need not assist in the display of a symbol that reflects all of those hateful institutions.

Instead of adopting the "this is 'government speech'"fiction--and not a very convincing one--the majority in the Confederate flag case should have acknowledged that the free speech rights of private expression were at issue. But that they were outweighed by the state's, and society's, fundamental policy interests.

Consider the implications for the North Carolina case previously mentioned--i.e., the state allowing "Choose Life" but disallowing "Respect Choice" on license plates.
Applying the "government speech" analysis of the Confederate flag case would result in upholding North Carolina's viewpoint discrimination against pro-choice expression.
On the other hand, recognizing that specialty or "vanity" plates entail private expression would result in prohibiting the state from abridging the free speech rights of pro-choice advocates.
To succeed, the state would need to demonstrate that there is some overriding fundamental policy against a woman's right to choose.
Of course the state could not do that, because the right to choose is a protected constitutional freedom.

One last thing.
The legal reasons a court adopts for reaching its decisions matter.
Often those reasons matter much more than the result in the particular case.
Those legal reasons are applied in all the cases that follow.
The Supreme Court majority's reasons in the Confederate flag case--i.e., "government speech"--will now be applied in many cases coming before federal and state courts and agencies around the country.
That is most unfortunate. Many of those results, like the reasons given in the Confederate flag case, will be wrong.
And lots of free speech--under the guise that it is "government speech"--will suffer.

Supreme Blockbusters Coming (Part 3--Lethal Injection)

Seven years ago, the Justices upheld lethal injection as a constitutional means of execution. A few weeks ago, they heard arguments in another lethal injection case. This one was precipitated by a number of botched procedures that resulted in extremely painful deaths.

Lethal-Injection Procedures (Glossip v. Gross)
In its 2008 decision in Baze v. Rees, the Supreme Court rejected a challenge to death sentences carried out by injection with lethal drugs. The challenge was based upon the possibility that the procedures could cause serious pain if they were not properly followed.

By a vote of 7-2, the Justices held that such a possibility did not render execution by lethal injection unconstitutional. A mere possibility did not mean that such executions were "cruel and unusual" within the meaning of the 8th Amendment (or the 14th Amendment, as applied to the states). That decision is the "governing" precedent for this latest case.

But it's not so clear what that "governing" precedent actually established that's precedential. The lopsided vote in Baze is misleading. Despite being 7-2, it did not produce a majority rule or rationale. There were 7 separate opinions written, and collectively they asserted at least 3 different ways to analyze these death penalty cases.

The leading opinion, authored by Chief Justice Roberts, was joined only by Justices Kennedy and Alito. In that plurality opinion, Roberts surveyed past "cruel and unusual" decisions and concluded that a method of execution is unconstitutional if it entails an "intolerable risk" of "severe pain." Applying that test, he determined that the lethal injection procedure in that case was acceptable.

In an opinion by Justice Thomas, he and Justice Scalia made clear their view that only the most torturous, barbaric, and gratuitously excruciating punishments were "cruel and unusual." So only executions by burning alive, disemboweling, crucifixion, drawing and quartering, and the like would violate the constitution. Lethal injection was clearly acceptable to these two Justices.

In dissent, Justice Ginsburg, joined by Justice Souter, argued that the test for "cruel and unusual" was whether the procedure created an "avoidable risk"of "unnecessary pain." They refused to approve lethal injection unless or until it was shown that the risk could not be avoided.
(Justices Stevens and Breyer each wrote a separate opinion. Stevens kind of agreed with Roberts. Breyer agreed with Ginsburg's test, but believed that lethal injection passed.)

So that's where the law, such as it is, stands.

Now in the current case, the question is about the use by Oklahoma (and some other states) of a particular 1st drug in a 3 drug protocol. The 2nd and 3rd drugs in the sequence stop the person's breathing and stop his heart. But it's the 1st drug administered that is supposed to anesthetize the person so that he is unconscious and feels no pain.

Because of a shortage of the commonly used 1st drug (in large measure because of the efforts of death penalty opponents), states like Oklahoma began to use an alternative. That drug is actually a sedative, not an anesthetic. In large enough doses, however, the so-called midazolam is supposed to be effective in inducing an unconscious state.

Nevertheless, in several executions, in a few different states, in which midazolam was used, the person was not rendered unconscious and, instead, suffered a gruesome and extremely painful death. Is that enough for the Court to rule that lethal injection with midazolam is unconstitutional?

Putting that question another way: is the apparent unreliability of the sedative midazolam--to induce unconsciousness and, thereby, to prevent an intensely painful execution--enough to persuade at least 5 Justices that lethal injection with that drug violates the constitutional prohibition against "cruel and unusual" punishment?

Let's consider the Justices and their possible votes.

First, there are the easiest ones. Scalia and Thomas, as we've already noted, believe that only punishments similar to disembowelment, burning alive, crucifixion, and drawing and quartering are prohibited by the Constitution. There's very little chance they will consider the unreliable or botched lethal injections sufficiently gruesome.

On the other hand, there are the liberals--Ginsburg, Breyer, Sotomayor, and Kagan. Some of them are openly hostile to the death penalty. All of them seemed extremely skeptical at oral argument, if not utterly contemptuous of Oklahoma's defense of its lethal injection protocol. It's very likely that all 4 of these Justices will vote that what Oklahoma is doing is unconstitutional.

That leaves Roberts, Kennedy, and Alito. They joined together to form the plurality in the 2008 Baze case. It was they who stated that the test for "cruel and unusual" is whether there is an "intolerable risk" of "severe pain."

So is the risk with midazolam "intolerable?" Less subjective and amorphous than that, how great is the actual risk ? And how great must that risk be for Roberts or Kennedy or Alito to conclude that lethal injection with midazolam flunks their constitutional test?

At oral argument, Alito seemed quite unsympathetic to the claims against Oklahoma's use of that alternate drug. He seemed to blame the death penalty opponents for making the more reliable drugs so scarce. But would he really think that's a legitimate reason to uphold the use of the risky drug? Of a drug that risks seriously painful executions? It would be no surprise if he voted to approve Oklahoma's protocol.

As for Roberts and Kennedy, they expressed similar concerns to Alito's. But--at least from several reports of the oral arguments--neither seemed to be as openly hostile to death penalty opponents generally, or to be directing that hostility toward the opponents of the midazolam protocol as much as Alito.

Moreover, Kennedy has not been a staunch supporter of the death penalty. Indeed, he has occasionally joined the liberals to invalidate it in certain circumstances. The unreliability of using midazolam as an anesthetic might just nudge Kennedy over to the liberals in this case.

Roberts has also shown some ambivalence about the death penalty in the past. Not as much as Kennedy. But he is certainly nowhere near the camp of Scalia and Thomas.

So the bottom line on this one?
As with the same-sex marriage and Obamacare subsidies cases, the 4 liberals are virtually certain to vote on the same side and, in this case, to vote against Oklahoma's lethal injection protocol. And as in those other cases, they need just one more vote for a majority.
One thing's for sure: they will not get Scalia or Thomas.
And they will very likely not get Alito.
That's 4-3.

The most likely 5th vote for the liberals, if they're going to get one, is--no surprise here--Kennedy. He seemed to acknowledge at oral argument that the use of midazolam created much more risk than other drugs. Whether he will hold the shortage of more reliable anesthetics against the opponents of midazolam is, of course, anyone's guess. But Kennedy has never seemed as petty and belligerent as some others on the Court.

Roberts wouldn't be a shock if he applied his Baze standard and found midazolam to be too risky. Again, he is certainly no Scalia or Thomas. But, if I were the liberal Justices, I wouldn't count on him.

So the vote on this one, as on the cases we previously discussed, will likely be deeply split.
If I had to bet, I'd say 5-4--but I have no confidence whatsoever which way that will be.
(Ok, if I'm ordered from on high to say? Kennedy goes with the Libs.)


In the next post: the confederate flag on a license plate?

Supreme Blockbusters Coming: Marriage, Obamacare, Execution, & Confederate Flag (Part 2--Obamacare)

Just as closely-watched and controversial as the same-sex marriage case is this year's challenge to Obamacare.

Health Insurance Subsidies (King v. Burwell)
The question before the Supreme Court involves the federal tax subsidies to help lower-income workers purchase health insurance. Are those subsidies available only where insurance is purchased through a state-established marketplace? Or through a federally established marketplace as well?

The rub?
Virtually every Republican controlled state has refused to set up a health insurance marketplace. This resistance to Obamacare (the Affordable Care Act) has resulted in marketplaces being established in those states by the federal government. Several million workers have purchased their insurance in those Republican states--through federal marketplaces, with the help of the federal subsidies.

Now the law does authorize the federal government to establish such marketplaces--termed "exchanges"--in states that refuse or otherwise fail to do so. In fact, the law says that the federal government "shall' do just that.
But, the law only mentions the federal subsidies when referring to purchases “through an Exchange established by the State." [My emphasis.] There is no additional reference specifying subsidies for purchases through a federally established exchange.

To be sure, this case can be viewed from different perspectives.

As a purely legalistic matter, this case is simply an issue of statutory construction. I.e., what is the correct way to read or "interpret" the very terms of the Affordable Care Act regarding the availability of those subsidies? So just the language of the law.

As a matter of politics, partisanship, and policy, the case is about the impact the decision will have on national health insurance coverage and, more specifically, on the Obama administration's effort to achieve that. I.e., what are the implications for those several million lower-income workers and their families who had to obtain health insurance through a federal exchange, because their Republican controlled state governments refused to establish one? And what are the implications for the very purpose of the law itself? So not just the language of the statute, but the consequences of the Court's decision as well.

Let's put the cards on the table. There will almost certainly be nonsense spouted by both the conservative and liberal Justices. As for pure statutory construction, the conservatives will insist that the law must mean that subsidies are available only for state exchanges because the law only mentions subsidies in a section speaking about such exchanges. The liberals will insist that the law must mean the opposite because the federal exchanges are established on behalf of states and, therefore, are supposed to be treated as state exchanges themselves.
Of course, neither is really so clear. The law doesn't necessarily mean either.

As for politics, partisanship, and policy, there will be no less nonsense. The conservatives will insist that the consequences of a decision should not be considered by the Court, only the law itself--and that clearly requires the invalidation of subsidies for federal exchanges. The liberals will insist that consequences must be considered in rendering a judicial decision--and that clearly requires the Court to uphold subsidies for federal exchanges as well. Both the conservatives and the liberals will present their respective positions as pure law, as neutral (non-ideological) judicial decision-making, as devoid of partisanship and politics.
Of course, none of the foregoing is clear--except that politics, partisanship, and ideology will indeed play a major role in the Justices' voting.

So where does that get us?
It's a virtual certainty that the 4 liberal Justices--Ginsberg, Breyer, Sotomayor, and Kagan--will vote to uphold subsidies for federal exchanges. As a matter of politics, partisanship, ideology, policy, etc., they undoubtedly support the expansion of health insurance coverage under Obamacare. They understand that the subsidies are essential to that expansion, Indeed the subsidies may well be essential to the very survival of Obamacare.

It's also a virtual certainty that among the 5 conservative Justices--Roberts, Scalia, Kennedy, Thomas, and Alito--at least some of them are so opposed to Obamacare and hostile to what the Obama administration has sought to accomplish, that they will vote to invalidate subsidies for the federal exchanges. As for the millions who will lose the subsidies and then lose their health insurance, some of these Justices either do not care or they believe that such consequences are not their concern in deciding the case. As for possibly crippling Obamacare, they might well be delighted.

But the conservative Justices are not as cohesive a group as are the liberals. And the liberals need only one of the conservative Justices to vote with them in order to sustain the subsidies for the federal exchanges--thereby, saving the health insurance purchased with those subsidies, as well as saving Obamacare itself.

It would seem likely that at least one of the conservatives--Chief Justice Roberts or Justice Kennedy--will be less partisan and ideological on this issue than the others. As for Roberts, he cast the deciding 5th vote in NIFB v. Sibelius (2012) to uphold the Affordable Care Act against constitutional challenge. And he is the Chief Justice.

As in that previous case, does the Chief Justice of the United States really want the Court he leads to look so hopelessly partisan that all the Democratic Justices vote to uphold a Democratic President's initiative, and all the Republican Justices vote against it? And as the Chief Justice, does he really want to be seen as the leader of a Court that effectively took health insurance away from millions of lower-income workers and their spouses and children? Does he really want to be seen as endorsing the concept that his Court ought to disregard the consequences of its decisions--regardless of how drastic?

As for Justice Kennedy, he oftentimes votes with the liberals on social issues, e.g., gay rights and the death penalty. Indeed, he sometimes raises the ire of his more conservative colleagues for being less of a true believer. Moreover, he is not an adherent of the notion that judicial decisions ought to be uninfluenced by their consequences.

On the other hand, in NIFB v. Sibelius, Kennedy did make plain his hostility to Obamacare in his joint dissenting opinion with Justices Scalia, Thomas, and Alito. So he may be less likely to vote with the liberals in this latest challenge to Obamacare than Roberts would be.

Of course, who really knows. But it does seem more likely than not that the decision will be the 4 liberals plus the Chief Justice (with a more outside chance of Kennedy) weighing the consequences and thus voting to uphold the subsidies for federal exchanges.
We'll see pretty soon.

Next up, the cases dealing with lethal injections and the confederate flag on license plates.

Supreme Blockbusters Coming: Marriage, Obamacare, Execution, & Confederate Flag (Part 1)

It's the end of the term. As usual, the Supreme Court has left the decisions in some of the biggest and most controversial cases till the end. Let's take a quick look at four of them.
[I tried to whittle the number down to a more magical 3, but my wife and I just couldn't pick which 1 of the 4 to cut.]

Same-Sex Marriage (Obergefell v. Hodges)
Are state laws that prohibit same-sex marriage unconstitutional?
More precisely, do state laws that permit only opposite-sex marriages violate the federal Constitution's 14th Amendment which guarantees "equal protection" (i.e., prohibits invidious discrimination) and "due process" (i.e., prohibits laws that are fundamentally unfair and requires that laws be based on some legitimate government reason).

Since the Supreme Court decided Lawrence v. Texas in 2003, invalidating state laws that criminalized homosexual intimacy [and, thereby, emerging from the cave], the nation's views on gay rights and equality have changed with astonishing speed. Ten years later, in United States v. Windsor, this Supreme Court invalidated that part of DOMA ( the federal so-called "Defense of Marriage Act") that limited federal marital benefits to opposite-sex couples. The Court held that there simply was no legitimate government purpose for denying those same benefits to legally married same-sex couples.

At this point in our history, virtually every federal court--trial or appellate--to have addressed the issue has ruled that laws banning same-sex marriage are unconstitutional. And same-sex marriage--by judicial decision or legislation--is now legal in 37 states. Beyond that, polls show that a strong majority of Americans believe that same-sex marriage should be legal.

How far behind are the Justices willing to be?
How far out of touch are the Justices?
How tied to past discriminatory views--let's put the cards on the table: hostile and prejudiced--are the Justices that they would fail to see that anti-same-sex marriage laws violate equal protection and that they serve absolutely no serious government purpose?

Yes there's culture.
Yes, tradition.
Yes, upbringing.
Yes, sincere religious belief.
But also yes, pure irrational and hateful bigotry.
And none of these are valid constitutional justifications for discriminatory laws.

Although the current Supreme Court is quite mediocre, even dreadful, it's quite unlikely that the Court will take a stance against history and against the most rudimentary sense of decency, fairness, and equality.

Certainly, the 4 liberals--Ginsberg, Breyer, Sotomayor, and Kagan--will vote for same-sex marriage. That means that only 1 vote--a single Justice--stands between constitutionally sanctioning same-sex marriage and returning to the cave.
[Sorry, but as a purely heterosexual male, I simply fail to see any serious reason whatsoever--except for historical, "savage" bigotry (to borrow from Reagan-appointed federal appeals Judge Richard Posner)--for sustaining bans on same-sex marriage.]

The deciding vote(s) will likely come from Justice Anthony Kennedy--the "homo lover," as he was referred to by some members of the Reagan administration who opposed his nomination to the Court. He has been consistent in his support of gay rights and equality.

And perhaps also from Chief Justice John Roberts. It is near inconceivable that a Supreme Court Chief Justice would elect to stand athwart the undeniable, intractable tide of history. Is that what he would want his legacy to be?

Of course, there are some Justices who view same-sex marriage as the fall of civilization. Perhaps even America's march straight to hell. And they will likely vote according to those beliefs.

We shall see. But it's reasonable to expect a 5-4 or 6-3 decision in favor of same-sex marriage.

Next up: the Obamacare subsidies case.

(Part 10--Alito's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Not quite Scalia or Thomas.
Far different from Ginsburg and Breyer.
Not Kennedy either.
But identical to Roberts.
Justice Alito's record and theirs, that is.

White complainants win Alito's votes.
Racial Minority complainants, not so frequently. But more often then they win Scalia's or Thomas's vote.
Those advocating simple equal treatment--i.e., race neutrality, color-blindness, same rights regardless of race--have won his vote about half the time.
Those advocating more specifically for the protection of Racial Minorities have not fared well with him.

Let's look at Alito's record graphically.

(click graphs to enlarge)

GRAPH 1

 As shown in graph 1, Justice Alito--just like the other 4 Republicans on the Court--has voted in favor of the White complainants in every case involving an issue of racial discrimination. By contrast, he usually voted against Racial Minority complainants--again, like the other Republican Justices.

Now, to sharpen the focus, let's limit our consideration to those cases that resulted in non-unanimous decisions.

GRAPH 2

In those closer cases where the Justices were divided, Alito's voting in support of complaints brought by Racial Minorities drops to 29%. His record contrasts sharply with that of Ginsburg and Breyer who voted for the Racial Minority complainant in every one of those cases.

(Part 9--Breyer's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Now for Justice Stephen Breyer.

Like Justice Ginsburg, whose record we looked at in the immediately preceding post, Breyer is a President Clinton appointee. Meaning? A Democrat, and much more ideologically liberal than the Republican appointees on the Court.

So we would certainly expect that his voting has been more protective of Racial Minorities than that of Chief Justice Roberts and that of Justices Scalia, Kennedy, and Thomas, who we have focused on previously in this series. Let's see if Breyer's record bears that out. Take a look.

(click graphs to enlarge)

GRAPH 1

Breyer voted to uphold complaints brought by Whites (43% of the time) less frequently than did the Republican Justices (100%). But he did vote with them in Fisher v. University of Texas to require the strictest scrutiny of racial affirmative action in higher education admissions. That is, any racial preference can only be justified by proof of a compelling necessity. Breyer thus split, in that case, with Justice Ginsburg who dissented.

As for upholding complaints brought by Racial Minorities, Breyer's record is identical to Ginsburg's. His voting, like hers, evinces far greater support for the claims involving issues of discrimination suffered by Racial Minorities than that of any of the Republican Justices. And far greater support for complaints brought by Racial Minorities than for those brought by Whites.

Let's now zero in on those closer cases in which the Justices can't agree and must choose sides. Those cases that provide the insight gained from exposing the actual divisions on the Court that unanimous decisions conceal. Here, then, Breyer's record in the divided cases.

(Part 8--Ginsburg's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

This past week, in Schuette v. Coalition to Defend Affirmative Action, the Court upheld Michigan's recently adopted ban on affirmative action--i.e. race conscious decisions--in state university admissions. The vote was 6-2. (Justice Kagan did not participate.) Not surprisingly, all 5 Republican Justices supported the ban . Not a single one of them thought there was a problem with the voters of a state outlawing admissions programs that had sought, for compelling reasons (the only ones constitutionally allowed), to increase the college enrollment of racial minorities. Not one. Straight party line.

Among the Democratic Justices, Breyer wrote separately to agree with the Republicans, but on narrower grounds specific to this particular case. Justice Sotomayor dissented in a lengthy opinion joined by Justice Ginsburg.

For now, let's continue with our look at voting records compiled even before the Schuette decision.

Justice Ruth Bader Ginsburg's voting record in cases involving issues of racial discrimination?

A victim of gender discrimination early in her career. The nation's foremost litigant to eliminate gender discrimination. Appointed to the Court by Democratic President Bill Clinton. A predictably liberal vote on ideologically charged issued--e.g., civil rights, rights of the accused, campaign finance, etc.

So what about Ginsburg's voting on racial discrimination issues? Even before examining her record, what would be expected? Anything like Scalia's or Thomas's records? Or the polar opposite?

Of course it's just what would be expected. (I.e., the polar opposite of Scalia's and Thomas's record, for those who might not follow the Court.) And perhaps even more so.

Let's see.

(click graphs to enlarge)

GRAPH 1

As depicted in graph 1, Justice Ginsburg voted to uphold complaints brought by Whites much less frequently than did the Republican Justices we've looked at previously in this series--i.e., Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas. She supported White claimants in 2 out of 7 cases, or 29% of the time. That compared to 7 out of 7 cases, or 100% of the time, for each of the Republican Justices.

As for the complaints brought by Racial Minorities, she voted to uphold them much more frequently than did the Republican Justices. Her record: 9 out of 11 cases, or 82% of the time she supported the Racial Minority claimants. That compared to 2 out of 11 cases (18%) for Scalia and Thomas, 4 out of 11 for Roberts (36%), and 5 out of 11 (45%) for Kennedy.

But let's now focus on those closer, divided cases. What was Ginsburg's record in those cases where the arguments on both sides were strong, and a Justice would certainly have good reason to vote either way? Here it is. 

GRAPH 2

 Ah, in those closer cases, Ginsburg voted against the complaint every time it was brought by Whites. She voted to uphold the complaint every time it was brought by Racial Minorities. Exactly the opposite of Scalia and Thomas.