The Supreme Court's Last Term: Review & Implications (PPT)

Having now presented several reviews of the Supreme Court's 2014-2015 Term ["October 2014 Term"] since that term concluded in June, it's perhaps time to post and retire the power point.

The presentations ranged from 1 to 3  hours; the power point and corresponding remarks were tailored to the time requirements. Here is the unabridged version of  the power point, including  the most recent updates I used today as part of New York State's Annual Legislative Continuing Legal Education Program. It includes all the graphs on decisional and voting patterns prepared to help underscore the implications of the past term.

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To view the complete slide presentation, open HERE.
(Then, for the best view, click File + Download, and Open the download.)

Supremely Awful Arguments: Constitutional Nonsense (Part 2)

It's not mentioned in the Constitution

(A delay in getting to this one. But, come on: the Saratoga meet!
The Whitney, the Jim Dandy, the Alabama, the Travers, the Woodward, plus, plus, plus.)

So, "It's not mentioned in the Constitution."
Another one we hear all the time.

This one may even be worse than "Leave it to the states" or "to the people." (See Part 1.)
At least those arguments appeal to sentiments of federalism and democracy.
"It's not mentioned" simply appeals to ignorance.
Ignorance about the Constitution itself. About the Bill of Rights. About the very notion of free government.

We hear it whenever the Supreme Court protects a right or liberty--i.e., what the Court rules to be a right or liberty--that isn't specifically identified in the Constitution.
Those who disagree with the decision, be they talk radio hosts or "expert" commentators or Justices themselves, will parrot this one.
It's utter nonsense.

Indeed, the only virtue in this supremely awful argument is that it's bi-partisan and bi-ideological.
Conservative Republicans dredge this one up whenever an unexplicit right they don't like is protected by the Court--e.g., the right of privacy, the right to choose, Miranda warnings, etc.
And liberal Democrats resort to it when the Court protects some unspecified right that they disfavor--e.g., campaign spending, business freedoms, individual gun rights unconnected to state militias, etc.

But whenever the argument is raised, and whoever raises it, it's utter nonsense.

Let's consider the recent Obergefell v. Hodges decision recognizing the equal right of same-sex couples to marry.

"The right to same-sex marriage is not mentioned in the Constitution."
That's what we've heard from those who disagree with the decision, including some of the dissenting Justices.
The correct response to them should be, "Yes, and therefore what?"

The right to marry, itself, isn't mentioned--opposite or same sex.
The right to choose who to marry is not mentioned--opposite or same sex.
The right of a married couple to have sex is not mentioned.
The right of a married couple to have children is not mentioned.
The right of a married couple to raise their children--same.
The right of a married couple to seek advice about raising their children--same.
The right of a married couple, or anyone else, to have friends--same.
To join a group--same.
To have friendly gatherings--same.
Even to have family gatherings--same.
Etc., etc., etc.

Would anyone doubt that all of those are pretty basic rights?
Essential aspects to life in a free society?
Would anyone think that government in America should be permitted to deny them with impunity?
Deny them without some very very strong reason, like public health or safety or some other societal necessity?
Even though none of those rights are mentioned in the Constitution?
Even though none of them are even implied?

Well, except for the word "liberty."
That word is in the Constitution a few times.
But nothing more specific than that to refer to any of those unmentioned rights.

Benjamin Cardozo helped explain the notion of basic rights--mentioned or unmentioned--in the Supreme Court's 1937 decision in Palko v. Connecticut. His opinion is the foundational expression in American law for determining which rights are "fundamental" and, therefore, constitutionally protected from violation by any government--federal, state, or municipal.

The critical point, as Cardozo put it, is whether a claimed right is "implicit in the concept of ordered liberty." Whether a claimed right is "essential" to a free and just society.
Not whether it happens to be one of the few guarantees actually listed in the Bill of rights.

Indeed, we nearly didn't have a Bill of Rights because of fear that the "it's not listed" or "it's not mentioned" argument would be raised in the future. The Founders and Framers were worried that, by listing some rights, those freedoms that were left unspecified might later be denied.

Yes, ultimately the arguments favoring a Bill of Rights--e.g., that a partial list was better than none at all--won the day. (See e.g., Jefferson's correspondence with Madison on the subject of a "declaration of rights.")
But the fears about the "it's not mentioned" argument have become reality.
That argument is precisely the nonsense we hear regularly about rights not specified in the Bill of Rights.

But the "it's not mentioned" argument  is even worse than the foregoing suggests.
In an effort to foreclose such an argument, a provision was added to the Bill of Rights. The 9th Amendment. That addition makes clear, in no uncertain terms, that the list of rights specified in the Constitution is necessarily very limited, and that unlisted rights are not to be denied.
(9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

This was James Madison's attempt to put a nail in the coffin of the "it's not mentioned" argument.
It was his more delicate way of saying that that supremely awful argument is utter nonsense.

Of course, not every right that might be claimed is deserving of constitutional recognition and protection--i.e., is implicit in and essential to the American scheme of liberty.
But the fact that such a right is not "enumerat[ed] in the Constitution" is irrelevant.

Now, before concluding, let's be clear that the "it's not mentioned" argument is not the sole province of conservatives and Republicans. Liberals and Democrats resort to this utter nonsense as well.

Let's take campaign spending.
The dreaded Citizens United decision.
Right or wrong, wise or foolish, the fact that spending money on political campaigns or issues is unmentioned in the Constitution is itself irrelevant.

Yes, the 1st Amendment speaks of free "speech." And spending money on political campaigns or issues is not speech.
No, it certainly is not.
But picketing--e.g., to protest a company's low wages--is similarly not mentioned in the Constitution, nor is it exactly speech either.
Marching--e.g., against the Boy Scouts' or other private organizations' discrimination against gays and lesbians--is not mentioned and not exactly speech.
Wearing some symbol--e.g., a black armband to protest war or a red ribbon to support AIDS research--is not mentioned and not exactly speech.
Burning the American flag--for whatever reason--is not mentioned and not exactly speech.
Etc., etc., etc.

Yes, all of those activities are engaged in for the purpose of expressing support or opposition or other opinions.
But the terms "expression"and "activity"are nowhere to be found in the 1st Amendment.
It specifies only "speech."

Well, it might be asserted, but aren't all those "expressive activities" kind of part of the broad notion and purpose and principle of free speech?
Indeed!
And so is spending money to produce a political documentary--just like the one at issue in Citizens United.
And so is spending money in support of a political party or candidate.
They are ways of expressing one's views, akin to speech.

To be sure, there may be some very strong arguments for limiting such political spending.
But not because "it's not mentioned."

There are strong reasons for limiting or prohibiting some expressive activities.
For some, the reasons are clear--e.g., setting fire to property to express opposition to the owner's bigotry or to police brutality.
But the fact that picketing and marching and wearing a symbol and burning the flag--and campaign spending--do not happen to be specifically mentioned in the Constitution is a wholly illegitimate reason for rejecting a claim that they are, or ought to be, protected constitutional rights.

Regardless of the possible reasons for limiting or prohibiting certain expressive activities, the "it's not mentioned" argument is not one of them. That argument, whether applied to expressive activities or the right to privacy or any other unspecified right, is utter nonsense, devoid of historical or constitutional basis.
In fact, it's contrary to both.


Next up: a related supremely awful argument--"Textualism, literalism, or that's not exactly what it says."

Supremely Awful Arguments: Constitutional Nonsense (Part 1)

Arguments the Justices sometimes make.
Pure nonsense. [And that's euphemistic.]

We hear plenty of these arguments from talk show hosts, from "expert" commentators, and from the Justices themselves--either fuming or ecstatic about some constitutional ruling. They are spewed by both conservatives and liberals, Republicans and Democrats, on and off the bench. But only when those arguments support their respectively preferred results. They are otherwise disregarded--as they should always be.

To be clear. This is NOT about whether a particular constitutional ruling (e.g., on same-sex marriage, campaign finance, abortion rights, gun rights) is legally correct or sound policy. This is solely about the bona fides of some of the arguments repeated incessantly as though they were compelling. In fact, they are utterly without merit in constitutional cases. Again, pure nonsense.

Let's begin with this favorite:
This matter should be left to the states

Where to start with this one?

First, it totally begs the question.
It begs the question at the very heart of virtually every constitutional issue for which it is raised.
That question is whether a constitutional right is involved in the first place.
If such a right is involved, then it's certainly not up to the states whether to honor that right or violate it.
[N.B., we are discussing United States Constitutional rights. The states are generally free to protect a claimed right under their own State constitutions or their own laws--whether or not the same right is protected under the federal constitution or other federal law. We are here addressing arguments made about United States Constitutional matters at issue at the United States Supreme Court]

It's certainly not up to the states whether to honor or violate freedom of speech, or free exercise of religion, or the right to counsel, or the right to trial by jury, or the prohibition against forced self-incrimination or against cruel and unusual punishment--or any other right protected under the United States Constitution.

Nor is it up to the states whether to treat persons equally on the basis of race, or gender, or religion, or ethnicity, or any other classification that the United States Constitution protects against discrimination.

No, the states don't get to choose when it comes to United States Constitutional rights.
If such a right is involved, the states are not free to violate it.
So the threshold question--before leaving it to the states--is whether such a right is involved.
If no such right is involved, then the matter can be left to the states.

Stated otherwise, to argue that the matter should be left to the states is to presume that no United States Constitutional right is involved. But that's the essential question to be decided.

And who decides that?

Second, under our system, the courts decide whether a constitutional right is involved and whether it has been violated. Ultimately, regarding the United States Constitution, it's the United States Supreme Court that has the last word.
Not the states.

States don't get to decide whether same-sex marriage, campaign spending, abortion rights, gun rights, or any other claimed right or liberty is protected under the United States Constitution.
States don't get to choose whether they can abridge, infringe, or deny a claimed right that is protected under the United States Constitution.

No, in our system, the judicial branch decides those matters--i.e., judicial review.
And the ultimate authority in making such decisions under the United States Constitution is the United States Supreme Court--i.e, Chief Justice John Marshall, Marbury v. Madison, the Federalist Papers.

So, in cases involving a claim of right under the United States Constitution, it is of course pure nonsense to argue that the issue should be left to the states.
Nonsense to argue that the states get to construe the United States Constitution for themselves.
Nonsense to argue that the states get to decide what is a United States Constitutionally protected right.
And, if it is such a protected right, nonsense to argue that the states get to decide whether to honor or violate it.
Unless, of course, we are to do away with the Supreme Court's power of judicial review.

And unless we do that....

No, whether something is a United States Constitutional right--and thus must be honored--is not up to the states.
Whether it's gun rights or campaign spending that conservatives and Republicans generally favor.
Or the right to choose or rights of the criminally accused that liberals and Democrats generally support.
Whether those rights must be recognized and protected under the United States Constitution is a matter for the United States Supreme Court, not the states.

Now, with all the foregoing in mind, consider this:
A case at the United States Supreme Court to interpret the United States Constitution and to decide whether something is a United States Constitutional right and whether such a right has been violated.
An argument is made that the matter should be left to the states.
Left to the states--not the United States Supreme Court--to interpret the United States Constitution?
Left to the states--not the United States Supreme Court--to decide whether or not something is right protected by the United States Constitution?
Left to the states--not the United States Supreme Court--to decide whether to honor or violate a United States Constitutional right?

Yes, there is a certain appeal to the "leave it to the states" argument in our federal system of government in which the states do retain sovereignty over many matters.
But not about the meaning of the United States Constitution, and not about honoring or violating a United States Constitutional right.

So leave it to the states?
(Yes, I'm now repeating myself for emphasis about this utterly nonsensical argument that's repeated ad nauseam.)
That begs the entire issue of whether a United States Constitutional right is involved.
That must be answered first.
If the question is answered in the affirmative, then the states certainly don't have a choice.
Only if it's answered in the negative--only if there is no right protected under the United States Constitution--may it be left to the states to decide whether or not to recognize such a right themselves under their own laws.

Then there's the closely related argument:
Leave this matter to the "people"--i.e., to the voters

As before, not if a United States Constitutional right is involved.
Whatever was said above about the "leave it to the states" argument applies here as well.
Just as nonsensical.

No, whether something is a United States Constitutional right is not subject to a vote by the people.
And no, if something is a United States Constitutional right, it's not subject to a vote by the people to honor or violate it.
Again, unless we are to do away with the United States Supreme Court's power of judicial review.

And yet, we hear these arguments repeatedly. By those who don't know any better and, worse, by those who do or should.


Next Supremely Awful Argument: It's not mentioned in the Constitution.
We'll deal with that in the next post.

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 Court Wrap Ups (On Air Commentary)

The last several days have been a whirlwind of on air interviews about the Supreme Court's end-of-term decisions: Obamacare subsidies, same-sex marriage, lethal injection, etc.
Plus, at the state level, New York Court of Appeals Judge Susan Read announced her early retirement for the state's high court.

For anyone interested, here are links to a few of the interviews:

Fred Dicker: Live from the State Capitol! (6/30/15)
New York State STOPS...to hear Fred Dicker!
TUESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE: MY TAKE ON THE IMPORTANT ROUND OF NEW U.S. SUPREME COURT DECISIONS.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJune302015.mp3 (@ 29:00 -49:00 mins) 

Fred Dicker: Live from the State Capitol! (7/31/15)
New York State STOPS...to hear Fred Dicker!
WEDNESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE PART II: A CONTINUING DISCUSSION ON THE U.S. SUPREME COURT'S FINAL DECISIONS, PLUS THE SIGNIFICANCE OF COA'S ASSOCIATE JUDGE SUSAN READ'S DECISION TO RETIRE.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJuly12015.mp3 
(@ 29:30 - 49 mins) 

The John Gomez Show, LI News Radio (6/29/15)Gomez with Professor BonventreLink: https://soundcloud.com/jvcbroadcasting/gomez-with-professor-bonventre?in=jvcbroadcasting/sets/the-john-gomez-show-on-li-news

Capital Tonight (6/29/15)

Monday was the last day of the Supreme Court's term for this year, and while their two blockbuster decisions came last week the judges did weigh in on some big issues, including the death penalty and redistricting. Albany Law professer and New York Court Watcher blogger Vin Bonventre joined us to talk more about these issues.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/29/vin-bonventre-062915.html#

Capital Tonight (6/29/15)

The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

Update--Supremely Polarized: Partisanship Continues to Prevail

(We'll return to the Recaps--last week's marriage decision and then today's on lethal injection. But first, let's update last week's "Supremely Polarized" post.)

We've discussed and documented the politically partisan voting on the current Supreme Court quite a bit on New York Court Watcher. We did so in a lengthy series in 2012. And a few days ago--with all the decisions released since then, it seems like years--we surveyed the Justices' voting in some of the tough, controversial cases already decided this term. (See Supremely Polarized: Partisanship Continues to Prevail.)

Let's now update that survey. In reviewing the list of decisions and the repeated line-ups among the Justices, ask yourself again: are they voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?

Texas Dept. of Housing v. Inclusive Communities Project, ruled that a claim of racial discrimination in housing may be based on "disparate impact" (i.e., harmful results) as opposed to a showing of intentionally discriminatory treatment.
5 (Kennedy [wrote Court's opinion] + Ginsburg, Breyer, Sotomayor, Kagan)versus
4 (Alito [wrote dissent] + Roberts, Scalia, Thomas)

Obergefell v. Hodges, ruled that same-sex couples have a constitutional right to marry.
5 (Kennedy + Ginsburg, Breyer, Sotomayor, Kagan)
versus
4 (Roberts + Scalia, Thomas, Alito)

Glossip v. Gross, ruled that lethal injection with the sedative midazolam has not been shown to create a significant risk of serious pain in violation of the prohibition against cruel and unusual punishment.
5 (Roberts + Scalia, Kennedy, Thomas, Alito)
versus
4 (Sotomayor + Ginsburg, Breyer, Kagan)

Arizona Legislature v. Arizona Independent Redistricting Commission, upheld the popularly voted initiative that created an independent commission to replace the legislature in deciding the state's voting districts.
5 (Ginsburg + Kennedy, Breyer, Sotomayor, Kagan)
versus
4 ( Roberts + Scalia, Thomas, Alito)

Michigan v. EPA, ruled that the Environmental Protection Agency must consider the cost of compliance when regulating the hazardous pollutants emitted from power plants.
5 (Scalia + Roberts, Kennedy, Thomas, Alito)
versus
4 (Kagan + Ginsburg, Breyer, Sotomayor)

In all fairness, let's add:
King v. Burwell, ruled that under the Affordable Care Act ("Obamacare") tax subsidies are available for purchases of insurance on federal exchanges, not only on exchanges actually established by a state.
6 (Roberts + Kennedy, Ginsburg, Breyer, Sotomayor, Kagan)
versus
3 ( Scalia + Thomas, Alito)

So there are the most recent decisions of the Court--the tough ones, with controversial issues.

Note that every case, but one, was divided 5-4 along politically partisan lines, with Justice Kennedy as the deciding vote.

In the one exception, King v. Burwell, the Obamacare subsidies case, Chief Justice Roberts joined Kennedy and the liberals, and wrote the opinion for the 6 Justice majority. But even in that case, all 4 Democratic liberals voted together in the majority, and the 3 most conservative Republican Justices voted together in dissent.

As I asked at the outset: are the Justices voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?

With an occasional exception, the answer seems obvious.

For a complete list of of these decisions--combining those above with those listed in the previous post--see the post below this one. (By electronic magic, it will appear as if posted prior to this one!)

(The combined list) Update--Supremely Polarized: Partisanship Continues to Prevail

Here's the complete list, combining those from Supremely Polarized: Partisanship Continues to Prevail and the Update.
(As in those previous posts, the Democratic Justices are in blue, the Republicans in red, and Kennedy in purple. (How clever.)

Gotta say it one more time: voting like judges or partisan politicians?
The list:

Alabama Legislative Black Caucus v. Alabama, upheld the claim of racial gerrymandering.
5 (Breyer [wrote Court's opinion] + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia [wrote dissent] + Roberts, Thomas, Alito) 

Kerry v. Din, upheld the visa denial to a citizen's spouse without any judicial review.
5 (Scalia + Roberts, Kennedy, Thomas, Alito) versus
4 (Breyer + Ginsburg, Sotomayor, Kagan) 

Walker v. Texas Division, Sons of Confederate Veterans, upheld the state's refusal to allow a Confederate flag design on vanity license plates.
5 (Breyer + Thomas, Ginsburg, Sotomayor, Kagan) versus
4 (Alito + Roberts, Scalia, Kennedy) 

Brumfield v. Cain, ruled that the death penalty defendant was entitled to a mental disability hearing.
5 (Sotomayor + Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Thomas + Roberts, Scalia, Alito) 

Davis v. Ayala, ruled that the death penalty defendant suffered no prejudice when trial judge permitted the prosecution--in the absence of the defense counsel--to offer race-neutral reasons for removing several jurors.
5 (Alito + Roberts, Scalia, Kennedy, Thomas) versus
4 (Sotomayor + Ginsburg, Breyer, Kagan) 

Kingsley v. Hendrickson, ruled that force used by jail officials on a pre-trial detainee must be objectively reasonable.
5 (Breyer + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

Los Angeles v. Patel, invalidated a local law that permitted officials to search hotel guest registries without a warrant or the hotel's consent, and unannounced.
5 (Sotomayor +  Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

Texas Dept. of Housing v. Inclusive Communities Project, ruled that a claim of racial discrimination in housing may be based on "disparate impact" (i.e., harmful results) as opposed to a showing of intentionally discriminatory treatment.
5 (Kennedy [wrote Court's opinion] + Ginsburg, Breyer, Sotomayor, Kagan)versus
4 (Alito [wrote dissent] + Roberts, Scalia, Thomas)

Obergefell v. Hodges, ruled that same-sex couples have a constitutional right to marry.
5 (Kennedy + Ginsburg, Breyer, Sotomayor, Kagan)
versus
4 (Roberts + Scalia, Thomas, Alito)

Glossip v. Gross, ruled that lethal injection with the sedative midazolam has not been shown to create a significant risk of serious pain in violation of the prohibition against cruel and unusual punishment.
5 (Roberts + Scalia, Kennedy, Thomas, Alito)
versus
4 (Sotomayor + Ginsburg, Breyer, Kagan)

Arizona Legislature v. Arizona Independent Redistricting Commission, upheld the popularly voted initiative that created an independent commission to replace the legislature in deciding the state's voting districts.
5 (Ginsburg + Kennedy, Breyer, Sotomayor, Kagan)
versus
4 ( Roberts + Scalia, Thomas, Alito)

Michigan v. EPA, ruled that the Environmental Protection Agency must consider the cost of compliance when regulating the hazardous pollutants emitted from power plants.
5 (Scalia + Roberts, Kennedy, Thomas, Alito)
versus
4 (Kagan + Ginsburg, Breyer, Sotomayor)

In all fairness, let's add:
King v. Burwell, ruled that under the Affordable Care Act ("Obamacare") tax subsidies are available for purchases of insurance on federal exchanges, not only on exchanges actually established by a state.
6 (Roberts + Kennedy, Ginsburg, Breyer, Sotomayor, Kagan)
versus
3 ( Scalia + Thomas, Alito)

And if the foregoing isn't enough, the Court today ordered a halt ( a "stay") of the Texas laws that severely restricted the availability of abortions. Uhhh, by a 5-4 vote: Kennedy + the 4 liberals versus Roberts, Scalia, Thomas, and Alito. ("ORDER IN PENDING CASE,  WHOLE WOMAN’S HEALTH, ET AL. V. COLE, COMM'R, TX DHS.)

A dreadfully partisan court.

Obamacare Subsidies Decision: Recap (part 2: the video)

As an appendix to the Recap on the immediately preceding post from earlier today, here's an interview with Liz Benjamin on her Capital Tonight.

Liz questions me about the Obamacare subsidies decision and about the housing discrimination case the Court decided the same day. She then turns to the recently announced retirement of New York Court of Appeals Judge Susan Read, and the dramatic change in the high court over the course of a few years--with Governor Andrew Cuomo being able to remake its entire membership.

Here's the link:

The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.

Link:  http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

Obamacare Subsidies Decision: Recap

(Friday's marriage decision...Must be honest: Alleluia!

We'll recap that in the next post.
Well, a later post.)

We previewed the Obamacare subsidies case a couple of weeks ago:
Supreme Blockbusters Coming: Marriage, Obamacare, Execution, & Confederate Flag (Part 2--Obamacare)
[BTW, called it! Both the outcome and the voting line-up. Of course, if you make predictions, every once in a while you'll get one right.]

Here's a recap of the specifics of the decision in King v. Burwell:

Decision

• Tax subsidies are available for purchases of health insurance on the federally established markets ("exchanges"), as well as on those established by the states.
• The vote was 6 to 3.
• Majority: Chief Justice Roberts, joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan [I.e., Roberts & Kennedy + the 4 liberals]
• Dissent: Justice Scalia, joined by Thomas and Alito [I.e., the 3 most conservative Justices]
•  [The decision basically saves the health insurance scheme under the Affordable Care Act (ACA "Obamacare"). Most insurance purchases under the law have been made through the federal exchanges because most states--under Republican control--have refused to set up their own state exchanges.]

Chief Justice Roberts' Opinion for the Court/Majority

• The Massachusetts health insurance plan has succeeded in drastically expanding access to health care coverage [Roberts seems very positive about the Massachusetts plan, aka "Romneycare"]
• The federal plan was modeled after that one
• Essential to both plans is assistance to make insurance affordable to lower income purchasers
• Under the ACA, the federal plan, states are authorized to establish exchanges, and the federal government is required to do so in states that don't
• The "inartfully" drafted ACA provides that tax subsidies are available when insurance is purchased on "an Exchange established by the State"
• Considering the entire law and its purpose, that provision must include what the law refers to as a federally established "such Exchange within the State" 
• Otherwise, because the law restricts insurance purchases to an individual who "resides in the State that established the Exchange," purchases would not even be allowed on federally established exchanges and they would, thereby, serve no purpose whatsoever
• Further, the unavailability of subsidies on federal exchanges would create "death spirals" in the health insurance markets that both the Massachusetts and federal plans were intended to avoid; the result would be "calamitous"

Justice Scalia's Opinion for the Dissenters

• It is "quite absurd" to say that "Exchange established by the State" means "Exchange established by the State or the Federal Government"
• We must presume that lawmakers mean the "natural and ordinary signification" of the words they use
• The Court's majority has engaged in "somersaults of statutory interpretation" that will add confusion to "honest jurisprudence"
• The majority's principle: "The Affordable Care Act must be saved"
• The law should now be called "SCOTUScare"

To recap the recap:

1) Federal and state exchanges are to be treated equally--specifically for the availability of  tax subsidies for lower income purchasers of health insurance.

2) Roberts for the majority: "an exchange established by the state" should be interpreted in coordination with the entire law and its overriding purpose--hence, that phrase should be read to include a federal exchange established in a state that failed to set one up itself.

3) Scalia for the dissenters: the phrase means only what it says--no more, no less.

In the next--ummm, a later--post we'll recap the same-sex marriage decision.

Supremely Polarized: Partisanship Continues to Prevail

The divided Court.

Not along legal or jurisprudential lines--although there is some of that.
Not activism versus restraint, or any disagreement about the judicial role--though some of that too.
Not strict versus loose construction, or any interpretive methodology--though some of that as well.

But along political lines.
Partisan political lines.
Democratic versus Republican Justices--other than a Republican switching sides, usually Kennedy, in some cases.

As we await the blockbusters to come--on same-sex marriage and Obamacare subsidies--consider these ideologically charged decisions already decided this term:

Alabama Legislative Black Caucus v. Alabama, upheld the claim of racial gerrymandering.
5 (Breyer [wrote Court's opinion] + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia [wrote dissent] + Roberts, Thomas, Alito) 

Kerry v. Din, upheld the visa denial to a citizen's spouse without any judicial review.
5 (Scalia + Roberts, Kennedy, Thomas, Alito) versus
4 (Breyer + Ginsburg, Sotomayor, Kagan) 

Walker v. Texas Division, Sons of Confederate Veterans, upheld the state's refusal to allow a Confederate flag design on vanity license plates.
5 (Breyer + Thomas, Ginsburg, Sotomayor, Kagan) versus
4 (Alito + Roberts, Scalia, Kennedy) 

Brumfield v. Cain, ruled that the death penalty defendant was entitled to a mental disability hearing.
5 (Sotomayor + Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Thomas + Roberts, Scalia, Alito) 

Davis v. Ayala, ruled that the death penalty defendant suffered no prejudice when trial judge permitted the prosecution--in the absence of the defense counsel--to offer race-neutral reasons for removing several jurors.
5 (Alito + Roberts, Scalia, Kennedy, Thomas) versus
4 (Sotomayor + Ginsburg, Breyer, Kagan) 

Kingsley v. Hendrickson, ruled that force used by jail officials on a pre-trial detainee must be objectively reasonable.
5 (Breyer + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

Los Angeles v. Patel, invalidated a local law that permitted officials to search hotel guest registries without a warrant or the hotel's consent, and unannounced.
5 (Sotomayor +  Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

So, other than Kennedy who sometimes voted with the Democratic appointees (and Thomas, instead of Kennedy, in the Confederate flag case), the Justices--Democratic or Republican, liberal or conservative--voted along political party lines in these ideologically charged cases.
In fact, in every case, every Democratic-appointed Justice....

Point made without saying more?

(Correction: I mistakenly transposed the votes of Kennedy and Thomas in the Confederate flag case when I first posted this. It's  now corrected.)

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.