ANOTHER DAY, ANOTHER BLOCKBUSTER;
SCOTUS DECIDES OBERGEFELL
[Posted June 26, 2015] The
ink isn’t even dry on yesterday’s signal ruling in King v. Burwell; this morning, the Supreme Court issues Obergefell v. Hodges, the
much-anticipated ruling on marriage equality. By a 5-4 vote, the Court reversed
the Sixth Circuit and rules that states must license same-sex marriages.
Justice Kennedy announces the decision of the Court; as I understand it, each
of the four dissenters has written a separate opinion.
This one is going to take a
while to digest, as it looks to be quite long. I’ll post analysis of it a bit
later in the day. One thing I can tell you: this isn’t the partial victory that
some analysts had forecast, where the Court would have required states to recognize
such marriages celebrated elsewhere but stopped short of requiring them
nationwide. This is an undiluted win for the proponents of marriage equality,
as now all 50 states must allow the ceremony.
Okay, I’ve read all five
opinions and all 103 pages. As usual, I won’t go into the level of detail that
you’ll find elsewhere; for that, you can check out Adam Liptak’s analysis for
the New York Times, or SCOTUSblog’s two discussions – one in “Plain English” by
Amy Howe and one by courtwatcher Lyle Denniston. These will be my thoughts on
some of the forest-level issues, with an occasional foray into leaves and
As we’ve often seen before,
Justice Kennedy maintains his role – in my eyes, anyway – as the most powerful
man in American government, because when the Court is closely split, he gets to decide what American law is. Obergefell emphatically produced just
such a close split, and today, as in US
v. Windsor two years ago, he sides with the four liberal justices to decide
the case. You’ll find his opinion to be packed with noble rhetoric, and if you
happen to agree with his vote, you’ll find yourself cheering, or maybe shedding
a tear of joy. If you disagree with him, the citations to lofty principles will
start to get old quickly.
Kennedy begins by setting
out the historical framework for the issue, noting that until very recently, no
one even entertained doubt about the male-female component of a marriage. He
then cites some of the same principles that decided Windsor,
including the fact that same-sex-marriage bans demean the couples who just want
the same rights as everyone else.
The meat of the discussion
lies in the realm of due process, specifically of the substantive variety. He
finds four justifications for a due-process right to marriage in this context,
and understandably consigns the contrary position to the losing arguments in Loving v. Virginia, when the Court
overturned our Commonwealth’s antimiscegenation statute.
He then refers to the Equal
Protection Clause as a supplemental justification for his conclusion, noting
that the government conveys a swarm of benefits upon spouses. He sees no
legitimate basis for restricting those benefits to opposite-sex couples.
As I mention above, each of
the four dissenters writes an opinion. The chief justice’s acknowledges that
many Americans will cheer this news, and he refuses to throw a wet blanket on
their celebration, but he warns that the path the Court took to get to this
destination is a dangerous one, since in his view it puts important policy
decisions in the hands of nine unelected men and women. Marriage equality may
even be a good idea, and the nation is unquestionably moving toward full
acceptance of it; but the Supreme Court has just blown through the façade of
democratic decisionmaking and forced a single conclusion upon everyone.
The majority acknowledges
this fact and has an answer for it: when a subset of our citizenry is being
deprived of a right, the courts needn’t wait for the political process to carry
it out; courts exist to protect the rights of minorities against the tyranny of
The chief justice compares
today’s decision to the only case that he thinks can justify it – the infamous Lochner v. New York ruling, which the Court long
ago abandoned. That case, too, turned on an ostensible liberty interest: the
right of bakery employees to contract to work as many hours per week as they
felt like. Of course, the real rationale was that bakeries wanted to get as
many hours out of their employees as they could, regardless of the health
consequences. The chief sees this as the reincarnation of that approach.
The next dissent comes from
Justice Scalia. In my analysis of King v.
Burwell yesterday, I chided Scalia for his intemperate language in dissent.
Today’s opinion is more of the same; in my opinion, it’s strident and almost
childish. I write this even as I acknowledge that he has an excellent legal
point to make – more on that below – but he makes it in a way that turns the
reader off instead of furnishing a reason to agree. Ridicule is not a
substitute for reasoned argument, but Scalia has chosen to employ it twice in a
In this regard, I was
reminded today of this passage in a book on how to convince judges: “Don’t show
indignation at the shoddy treatment your client has received or at the feeble
and misleading arguments raised by opposing counsel. … Ideally, you should
evoke rather than display indignation.” A. Scalia and B. Garner, Making Your Case: The Art of Persuading
Judges (2008) at 34.
Justice Thomas’s dissent
focuses on his utter rejection of the concept of substantive due process. As he
sees it, liberty means freedom from governmental oppression, not a right to
governmental benefits. And in his view, the latter is what the petitioners want
– the same marital privileges that heterosexual spouses enjoy. But the due
process clause doesn’t convey the right to receive benefits; it prohibits the
government from doing three things to you unless it uses due process of law.
Justice Alito adds many of
the same points, but writes to warn of the future of judicial review if Supreme
Court justices can create unenumerated civil rights merely because they find
those rights to be a good idea.
A word about the Equal
Protection Clause: there isn’t nearly enough discussion of it. The chief is
right that Kennedy deals with it in an offhand way – “And, oh, by the way, the
Equal Protection Clause helps the petitioners, too” – without engaging in
serious equal-protection analysis. But the chief doesn’t exactly go through that
analysis to reach the opposite conclusion, either; he summarily says that
there’s a rational basis for the distinction between the two types of marriage.
That’s fine, but having read
briefs on this point, I believe that this challenge calls for at least heightened
scrutiny, rather than the hands-off approach that rational-basis analysis
provides. No one – not one justice – really analyzes today the question whether
same-sex-marriage prohibitions deny homosexual couples the equal protection of
the thousand-plus legal benefits that the law confers upon spouses. This, to
me, is potentially the most powerful argument on behalf of the petitioners. It
is the redheaded step-child of today’s opinions.
Two years ago, when I wrote
about US v. Windsor, I noted that I
was glad the case came out the way it did, but I absolutely hated the path that
the majority followed to get to it. In Windsor, the
Court took the case even though it didn’t really have an appellant, so I didn't
think it had jurisdiction. The named petitioner, the United States, asked the Court to
grant cert and then affirm. I wrote
back then that I had always believed that you have to be aggrieved in order to
appeal; while it’s possible to proceed without an appellee, if you don’t have
an appellant, then you don’t have an appeal.
I find myself looking at Obergefell the same way. I believe that
same-sex couples should be allowed to marry. The usual justifications for
restricting marriage to opposite-sex couples just don’t hold up under even
surface-level analysis. (For example, the rationale relied upon by the several
dissents is the promotion of procreation. Under that theory, the government
could prohibit a post-menopausal widow from remarrying late in life, because
she could never have children. But nobody on the court thought of that, I
suppose.) These people are just that – people – and they deserve the same
rights and privileges that the rest of us have.
But basing this ruling upon
an amorphous liberty interest and the Due Process Clause really is scary,
assuming you want your legislatures instead of your judge making laws for you.
The dissents harp on the fact that rights can’t be conjured up by a simple
majority vote of the nine Robes; they have to have their bases in the
Constitution or in statutes. Cynics have been known to complain that American
law is just what five votes can agree upon – nothing more and nothing less. If
that’s true, as today’s dissenters repeatedly warn, it’s very bad news for our
THOUGHTS ON KING v. BURWELL
[Posted June 25, 2015] On a
day that could have been “Obamacare’s Last Stand” (my fellow history fans will
catch the reference to today’s anniversary of Col. Custer’s unfortunate foray
into what the Lakota called Greasy Grass), the Supreme Court of the United
States delivered a signal win to the Obama Administration. Today’s vote in King v. Burwell was 6-3, with the Chief
Justice writing the majority opinion. Justice Scalia fires up his dissent pen,
writing on behalf of Justices Thomas and Alito.
This essay will be
abbreviated; there will be plenty of legal and political coverage of the
decision elsewhere, and I don’t propose to compete with that. I’ll mention here
a few items that caught my attention as I read the 42 pages that constitute the
majority and dissenting opinions.
This appeal involves the
Affordable Care Act’s tax-credit provision. The Act requires states to set up
health-insurance exchanges. If a given state – say, for instance, Virginia – refuses to
set up an exchange, then the Secretary of HHS is authorized to establish “such
Exchange” in that state.
In order to make required
insurance affordable, the Act provides federal tax credits to citizens who
enroll in insurance coverage through “an Exchange established by the State
under §1311” of the ACA. The question in this case is whether people in states
with federally established exchanges are entitled to the tax credit. That
matters a lot, because without the tax credit, millions of citizens in many
states will not be able to afford insurance, defeating the legislation’s
The majority’s first task is
to decide whether the phrase “established by the State” is ambiguous. On its
face, it looks like it isn’t; the Act elsewhere defines State as including the fifty states of the Union, plus the District
of Columbia, and the HHS Secretary doesn’t fit under that tent. If you look
only at this clause, it seems that only state-established exchanges will
generate the tax credit, and Virginians are out of luck.
But ambiguity can be latent
as well as patent, and the Court takes that approach to resolve the case. It
finds that when viewed in the context of the entire Act, the questioned phrase
can include exchanges established by the feds in addition to those directly
established by states. Given that key to the analytical kingdom, the majority
finds that the proper way to interpret the provision is to include all
The Court finds that this is the only way to avoid the very problem
that prompted Congress – okay, the Democrats in Congress – to pass the act in
the first place; if the subsidies fall, the entire program risks entering a
“death spiral.” As the Chief concludes, "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them." The only way to carry out Congress's purpose, he believes, is to ensure that subsidies apply across the nation.
Cue the Court’s current Great
Dissenter, Justice Scalia.
I agree with Scalia
sometimes; I disagree with him other times; but in most instances I enjoy his
scathing dissents, if only for the bloodbath of words. Today’s effort is 21
pages of blasting the majority’s reasoning. But irrespective of the merits of
this case, I found that this particular dissent turned me off at times; it was
less legal analysis than simple ridicule. More than once, after he trashed a
majority holding, I found myself thinking that, even where I agreed with him,
he could have made his point in less offensive terms.
But I don’t get any input
into his Honor’s approach, and I won’t even pretend to deny that he has some
unassailable points. The majority unquestionably engages in some analytical
contortions in order to make the case come out the way it does. But Scalia’s
response to the majority’s strongest points – parts C and D of the slip opinion
– is, in my view, half a step above name-calling. For example, he half-jokes
that the Court has taken such good care of the Act in its decisions, it should
be called “SCOTUScare.” And in his concluding paragraph, Scalia laments “the
discouraging truth that the Supreme Court of the United States favors some laws over
others, and is prepared to do whatever it takes to uphold and assist its
This, translated, is a
charge that the majority has taken an outcome-driven approach to the legal
analysis – deciding first how it wants the case to come out, and then figuring
out by what convoluted route it can possibly get there, sweeping inconvenient facts and legal
principles under the rug if necessary.
Does that sound backward to
you? Perhaps you believe that reasoned legal analysis should determine the outcome
of appeals, instead of a desired outcome’s forcing the legal analysis, no
matter how strained that reasoning has to be. Perhaps you think that courts should deal with even troublesome facts, rather than ignoring them when they become inconvenient to that desired result. Maybe you even believe that such
an inversion of outcome over principle never actually happens in legal
proceedings, and that those sweeps under the rug never happen.
If so, I won’t insist that you leave Fantasyland and come over to
Earth; but trust me, this kind of thing happens here. It happens at One Capitol Street,
it happens at Ninth and Franklin,
and it even happens in your local traffic court. This is reality. I'm not saying that it happens in every case, or even a majority of the time; but it happens a lot more often than you probably imagine.
Meanwhile, it’ll be easy to
predict some of the reaction to today’s decision. The far right will consign
the Chief Justice to the category of Traitors to the Cause; the Obama
Administration will breathe a sigh of relief; health-care providers’ stock
prices will rise. It’s even conceivable that some of the handful of states that
have created exchanges will abandon them, safe in the knowledge that Uncle Sam
will cover them. Beyond that, I’d be too far into the realm of speculation.
Lost in today’s fuss over
the ACA is the other decision handed down today, in Texas Dept. of Housing v. Inclusive Communities Project. For those who handle housing
discrimination claims, this case has massive importance; the Court held that a
plaintiff can state a claim based on disparate impact, without proving a
discriminatory purpose. If you don’t practice in this field, trust me: this is
a huge decision. It’s also a bit of a surprise, as I had expected the Court to
rule the other way.
So, what’s left of this
highly entertaining Term? There are five still-undecided cases remaining on the
Court’s docket. The highest-profile one is Obergefell
v. Hodges, the appeal involving
same-sex marriage. That one looks likely to come down as a 5-4 split, with
Justice Kennedy once again flexing his muscles as the most powerful person in
our government, since he quite often gets to decide what American law is. We
should also see a decision in an important redistricting case from Arizona, deciding
whether the act of redistricting is inherently legislative, so it can’t be
delegated to an independent commission.
In order to close out the
usual end-of-Term rush, the Court will hand down decisions tomorrow and Monday.
If you’re holding your breath waiting for it, my best guess is that Obergefell will come down on Monday.
SCV JUSTICES IN NEW
[Posted June 19, 2015] Have you ever wanted to sit down and chat privately
with the justices of the Supreme Court, to ask them to muse on judging and the
life of a justice? Maybe ask for a few hints on how to become a better advocate?
Well, I can’t offer you a ticket into the inner sanctum at Ninth and Franklin,
but here’s the next-best thing: William & Mary’s Law School has produced a
roughly two-hour video entitled, “The Art of Appellate Advocacy,” featuring a
group interview with six members of the court. It’s been uploaded to the
school’s website, and is available here.
The discussion is led by W&M Law Assistant Dean Laura Heymann,
who sits down with former Chief Justice Kinser, current Chief Justice Lemons,
plus Justices Goodwyn, Millette, Mims, and Powell. Justice McClanahan couldn’t
attend the taping, and the program was shot before Justice Kelsey was elected
to the court. Still, getting insight into the minds of five of the seven active
justices is insight that’s well worth your time.
I got an opportunity to watch the entire program a couple of
months ago. Technically, it’s beautiful; the video is sharp and the audio
quality is exquisite. One minor technical flaw: occasionally the audio and
video are out of sync by just a hair – perhaps an eighth of a second – and that
can be disconcerting if you’re watching in high-def. But you’ll learn how the
justices analyze a brief, how they divide the court’s chores, and even what
life experiences shaped their careers. (This kind of information isn’t
available at Target, or even at Saks
Fifth Avenue.) You don’t have to set aside a block
of two full hours to watch the entire program; it’s helpfully divided into
segments. If you want, you can even click on a single justice and listen to a
“filleted” version that’s all him, or her.
That being said, I’ll be candid: I think the program is misnamed.
If it had been called “The Art of Appellate Judging,” or “The Art of Appellate
Decisionmaking,” I would have been fine with it. But as I recall what I saw,
there’s actually very little direct, practical advice for how to become a
better advocate. It’s a great peek into the inner workings of the court, and
even into the inner workings of some of the justices’ thought processes. But
the viewer is left to try to figure out how to apply some of this new
information into an appellate practice.
I’ll put it this way: It’s like a panel discussion among art
critics on what makes a good sculpture. They can tell you how they go about
judging an art show, but a critic can’t tell you how to turn a marble block
into something remarkable. For that, you need to consult a sculptor. This
project, in my opinion, tells you what the critics think but doesn’t contain
anything from the sculptors.
Now, please don’t let this minor critique of the program’s name dissuade you from watching it. I
enthusiastically recommend that you take the time to view it, and maybe go over
some of the more important sections more than once. If you’re an appellate
advocate, or even if you’re just curious about how the court operates on the
inside, you won’t regret investing the time to watch it.