Roger Parloff on Supreme Court politics

Did Justice Kennedy plan to write a sweeping Perry opinion until nervous liberal justices yanked the standing rug from under him? There’s been speculation to that effect ever since the Court’s big day, but now Roger Parloff of Fortune offers circumstantial evidence in the form of passages from Kennedy’s Windsor opinion (and Scalia’s dissent). Excerpt:

…it’s possible, and I think likely, that when Kennedy realized he wasn’t going to get to write an opinion on the merits in Perry he at least imported into the DOMA ruling some of his thoughts bearing upon how cases like Perry should be decided.

How can I possibly say that? Kennedy’s diction throughout his DOMA ruling (including the passages from it that Scalia quotes so bitterly) often evokes that of the briefs filed on behalf of the Perry plaintiffs (the same-sex couples eager to marry in California) more than that of the briefs filed on behalf of Edith Windsor, the plaintiff in the DOMA case.

Back to Basics

Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion.  While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.

The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact.  But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.

That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote.  The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage.  Prop. 8 got a little over 52% of the vote, but a win is a win.

So California’s voters must be furious about the decision in Hollingsworth v Perry, right?

If so, it’s hard to see.  Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.

Opposition to same-sex marriage is different from opposition to abortion.  There is a real and substantial moral question with abortion: At what point does human life begin?  In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged.  Moral feelings about abortion start strong and tend to stay strong.

Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time.  The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in.  With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality.  The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family.  Procreation is a good thing, but it is not all that sex is for.

The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold.  It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations.  Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.

There is still a strong sense that abortion is worth the effort.  For a small minority, the fight against same-sex marriage will continue to be a priority.  But the continent on which they once stood is becoming more of an island every day.

 

The “least reported fact” about Wednesday’s rulings?

In the latest of their many writings purporting to advance the “truth about marriage,” on Thursday, at Public Discourse, traditionalists Sherif Girgis, Ryan T. Anderson and Robert P. George begin thus:

Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation….

The least reported fact, that is, except that major news organizations were not the least bit shy about reporting it. Reuters, the Los Angeles Times and the New York Times all put the Court’s refusal to overturn state marriage laws in the second sentence of their reports. The New York Times further handed over prime online space to none other than Ryan T. Anderson to say the same thing, while USA Today quoted Girgis-Anderson-George soulmate Tony Perkins, chair of the Family Research Council, reciting the same talking point. And so on for many other news reports.

So if you’re wondering whether Sherif Girgis, Ryan Anderson and Robby George managed to get even one sentence into their latest installment of the “truth about marriage” without veering sharply from the truth, the answer is: No, they didn’t.

Walter Dellinger on the Prop 8 Arguments

Last week I attended a first-rate panel on the Supreme Court’s gay marriage cases sponsored by the D.C. chapter of the National Gay and Lesbian Journalist Association and the Human Rights Campaign, with presentations by former acting Solicitor General Walter Dellinger and by Paul Smith, winning counsel in the landmark case of Lawrence v. Texas. I thought the best line was Dellinger’s, when he described the difficulties counsel Charles Cooper faced in defending the constitutionality of California’s Proposition 8. In the earlier Lawrence case, the Court had ruled that moral disapproval of homosexuality was not an adequate basis for legislation. Trying to construct a defense of Prop 8 that did not rest on such a basis, Dellinger said, “Cooper was left like one of those French philosophers trying to compose a novel without the letter ‘e.'” Yes, if you tried hard enough you might do it — but oh, the strain and the artificiality!

Super Chief

Ari Ezra Waldman has an informative analysis of the Supreme Court’s health care decision at Towleroad, with his thoughts about how it might throw some light on what the court would – or should – do if it accepts one of the several pending gay marriage cases, including a challenge to DOMA that is now at the head of the list.

But by framing his comments in the addicting polarity of the political left and right, I think he misses the more important constitutional thinking that animates the health care case, and particularly the role of Chief Justice John Roberts.

From the political perspective, the bottom line of the case is that the left won the policy while the right won the law.  Democrats get the health care reforms they fought very hard for, but as Waldman notes, the most conservative Republicans got limits on two of Congress’s most expansive powers – powers that have had few limits up until this decision: the authority to pass laws under the Commerce Clause, and a limit on how far the Spending Power goes before it coerces individual states.  Neither is much of a constraint, given existing Supreme Court rulings, but the opinion does draw lines that many people thought might be nonexistent.

But Chief Justice Roberts confounded the politics.  This most political of all cases is not fitting into the proper political boxes.  And in his introduction to the opinion, Roberts does his best, not only with rhetoric, but with his bottom line, to steer the court through the political shoals:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” [citation] Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

The difference between policy and constitutional law are famously hard to define, and frequently get lost entirely in political discussions.  The Chief Justice wants his court to keep a close focus on the apolitical constitution, and particularly the limits it places on legislative authority.  Congress violated two very important limits in this case, and the court called them on their transgressions.

But the court must be as respectful of the constitution’s structural framework as possible, and that means upholding another branch’s decisions if there is any constitutional authority to do so.  While there were political problems for Congress if they said the penalty for failure to buy health insurance is a tax, that is an entirely fair characterization of what they did, and they do have the power to levy taxes. Just because Congress didn’t rely on that clear power – for obvious political reasons – doesn’t mean that, absent any other constitutional authority, the court cannot uphold their action based on this obvious but politically risky power.  As the Chief implied, it’s not the court’s job to protect people from their politicians, or politicians from the people.

While that might seem to be a problem for the DOMA cases, I think it works the other way.  Waldman focuses on conventional equal protection analysis, which holds that while the court defers to Congress on economic legislation, it should not do so when politically unpopular groups are disadvantaged by legislation.  That is a fair argument that dates back to 1938, and the most famous footnote in judicial history.

But the DOMA cases are the flip side of the health care case.  The health care decision is based on the powers Congress has been granted, but DOMA is about the limits the constitution places on what can be passed, even with constitutional authority.

The Equal Protection Clause is one of the “restraints on federal power that the constitution carefully constructed,” which Roberts and the court are bound to respect.  Lesbians and gay men have slowly been convincing the country, and the courts, that there are political reasons for elected officials to violate it and disadvantage them under the law.

It is easy enough for the court to hold elected officials responsible to the voters when they try to avoid facing up to a political reality like raising taxes.  But it will obviously be harder for the court to put itself in the public’s crosshairs.  But when it comes to the Bill of Rights, that is where the constitution places the court, for good or ill.  Sometimes the constitution puts the elected branches on the political hotseat, and sometimes it puts the court there.

That is why it is fair to hold the Chief Justice to the apt quotation from his great predecessor, Chief Justice John Marshall.  “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”  When a same-sex marriage case does make it to the highest court, Roberts’ hardest decision will be whether he believes the court that bears his name is stable enough to apply the same apolitical view of constitutional interpretation to itself that he has applied to Congress.

The health care opinion is a remarkably stabilizing decision.  The Chief Justice managed both the politics and the law well.  I think it is a hopeful sign.

 

Power (I’m Afraid) to the People

Leaders in the gay rights movement do us all a disservice — gay and straight alike — when they stir up passions over non-issues.  Yesterday’s argument in California’s Supreme Court over standing in the Prop. 8 case is the latest example of whipping people into a needless frenzy that will ultimately feed cynicism.

The case was not about any gay rights issue.  In the course of the proceedings over appealing the district court’s decision overturning Prop. 8, a fascinating and unique issue arose about whether the proponents of an initiative have standing in federal court to appeal it.  This question came up because neither the Governor nor the state Attorney General chose to appeal, leaving the proponents as the only ones willing to carry the burden.  However, under federal court rules, parties must have proper standing to bring the case to the court of appeal.  The federal courts have very limited jurisdiction over cases, unlike state courts.

Normally, some part of a state’s government will defend a citizen-initiated law if necessary.  But both the Governor and the Attorney General felt the court got it right, and declined.  The proponents, therefore, stepped in.  However, some cases have said initiative proponents don’t have standing in the federal courts.  But no case dealt with the issue here, where there is no one to defend an initiative except the proponents.

There is a far more at stake in this case than just gay equality.  In California, the courts have consistently ruled that the legislature — and the executive and the judiciary — have only derivative powers.  Those powers do not come from God, but from the people, who are the ultimate source of all government.  The Prop. 8 appeal brings that into the spotlight.  If the government will not defend a law passed by the people using their superior legislative power, and the proponents of that law cannot, themselves, defend it, then, in fact, the government is superior to the people, and can veto their efforts.

It is, of course, convenient for those of us who believe strongly in equality, to have the appeal die for want of a champion.  That is what made Ted Olson’s life so hard yesterday, as the justices hammered him about his theory.  Olson  is nothing less than a superstar, and watching him defend what is ultimately an indefensible position was a marvel.  We cannot be grateful enough to have him on our side.

There are certainly some significant legal questions around the edges of what he was proposing, and it was a joy watching him try to tempt the judges with those.  But Justice Carol Corrigan called him out for “nibbling” at these distractions.  The real issue in this case is whether the government can nullify a vote of the people by denying them a voice in the federal courts.  If this is a gay issue, it means that gay rights requires placing our complete and total trust in the government, now and forever.  We’re fortunate in this case that our interests are aligned with those of California’s current politicians.  I’m very skeptical about this as a permanent rule, though.

I have no doubt at all that Prop. 8 is a violation of the federal constitution, and that the district court’s ruling will finally be upheld.  But the easy win will come at too great a cost.  The corruption and overreach in California’s legislature in 1911 that led to the initiative is never far from my mind.  Even when I agree with the political branches on the merits, as I do here, I think it is too dangerous to aggrandize the government at the expense of the people’s ultimate authority over government.  While I think the majority vote was invalid under the federal constitution, I’d rather give that majority its voice in the courts now, and maintain for the future the ability to control the state government if that ever becomes necessary again.

And when “we” ultimately lose this case (I will not be surprised to see a 7-0 vote in favor of the proponents), I hope the anger is not directed at the courts.  That is the risk of the fund-raising tactics that drive these non-issues — that the anger and fear our leaders are stirring up will be misdirected.  The Prop. 8 case, itself, is our issue as lesbians and gay men.  The standing case is our issue only to the extent we are citizens who have an interest in how much power we have granted to our government.

Are NPR and Maggie Gallagher Missing the Boat?

Andrew Sullivan is excerpting a fascinating debate he titles, “Embracing the Bias,” about the dilemma NPR faces over its surprising to no one tilt toward the left.  One of the key bones of contention is whether NPR should just say outright, yes, we are sort of leftish, but unlike Fox News, we’ll own up to our bias and honestly try to be fair rather than just asserting it.

As much as I’d like to endorse that kind of full disclosure, it presupposes, as the lawyers say, a fact not in evidence.  Lesbians and gay men should be more attuned than most to the fact that in a whole lot of cases, people don’t recognize their own bias.  On the contrary, they can understand what others view as bias as some sort of natural order.

When Maggie Gallagher takes umbrage at being called a bigot or worse, she is sincerely expressing her view that the world she grew up in and understands is entirely neutral and correct.  Her incredulity comes from the notion that such a uniform history of acknowledging heterosexual marriage holds no bias against homosexual couples.

And, speaking historically, she is not wrong. I don’t think the long, confounding and ongoing development of marriage came out of a bias against same-sex couples, it just came out of an ignorance of their existence.  It took all of that history, culminating late in the 20th Century, for lesbians and gay men to fully assert their public presence, much less their need for the same legal recognition of their relationships that heterosexuals take for granted.

But just because there was no intent to discriminate against same-sex couples in, say, the 16th Century doesn’t mean that the effect of that unawareness isn’t discriminatory today.  Gallagher has set herself up as the ambassador of that obliviousness.  If history isn’t biased, how could she and her followers be?  What is wrong with people?

What Gallagher can’t see (or won’t acknowledge) is what a gathering majority can no longer blind itself to.  Lesbians and gay men do exist, do fall in love, do form relationships, do raise children.  The law’s neglect of them is now clear to anyone who wants to see it.

But those who keep their blinkers on do, in fact, begin to look biased, look like they really don’t want to see something that is right in front of their eyes.  Perhaps that isn’t really bigotry or hate, but it looks so willful, so harsh, so mean.

Maybe it is always hard for us to recognize our own biases, too easy to mistake them for justice when, in fact, their injustice is only still coming into view.  It would be so nice if Gallagher and NPR and everyone could stand back from their deeply held beliefs and examine them fully.  But history proves that’s hard.

On a lot of subjects, now, we don’t know what bias is.  How can we expect people to admit something we don’t have agreement on the boundaries of?  If NPR doesn’t see their bias as bias, they can do no more about it than Gallagher can, and will be missing many of the same cultural shifts that are happening right under their nose.