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Tag: "constitutional interpretation"

ACA Argument Postmortem

[ 97 ] March 28, 2012 |

After going back and forth for a year I ended up being somewhat more pessimistic than a lot of liberal observers before the argument, so I perhaps wasn’t as shaken as they were. (I agree with Jon Cohn did the oral argument did not at all make it clear that Kennedy will vote to strike the ACA, although it made clear that he was seriously entertaining the possibility.) So I’m about where I was — it comes down to Kennedy, and I don’t see how anyone can claim to know what he’ll do. But I do think that some pundits, especially on the political side, misunderstood the role precedent will play in the case:

First of all, I think (particularly among political writers) there’s an important misunderstanding. Even if we concede that the ACA is unquestionably constitutional under the Court’s precedents—something that I don’t think is strictly accurate, although they strongly point in that direction—it’s important to remember that the Supreme Court is not bound by its own precedents. Lower courts are, and for that reason some of the District Court opinions striking down the ACA were embarrassingly feeble. But the Supreme Court does not violate any legal practice by limiting or overruling its own precedents. The law allows enough discretion for the Court to use its powers unwisely in this case, and it might. It is true that even if it is legally permitted to do so, the Supreme Court is very reluctant to overrule major precedents. Even after four decades of Republican-dominated Supreme Courts, the major precedents of the Warren and early Burger Courts remain good law. There is no question in my mind that if the argument being made against the ACA required the Supreme Court to overrule Wickard v. Filburn and return the country to a pre-New Deal conception of the Commerce Clause, it would not do so. But the genius of the argument concocted by the ACA’s opponents is that it does not require the Court to explicitly overrule any existing precedent. I think that the distinction between “activity” and “inactivity” is utterly nonsensical as applied to the healthcare market, and Steven Breyer did a good job of explaining why at yesterday’s oral argument. But it provides a way for the Court to strike down this particular bill without threatening the fundamental structure of the New Deal.

So nothing prevents the Court from striking the law if they want to, and a majority might want to. Hopefully Kennedy will step back from the brink.

Meanwhile, if you want to get into the weeds of the oral arguments, I probably don’t need to tell you this but Lithwick has been brilliant (day one, day two.)


Flagrant Conduct and the Right to Privacy

[ 17 ] March 20, 2012 |

The culmination of nearly a decade’s worth of research, Dale Carpenter’s Flagrant Conduct tells the story of Lawrence v. Texas, the landmark 2003 case holding that bans on “sodomy” violated the implicit constitutional right to privacy. Easily the best book of its kind since Richard Kluger’s Simple Justice was published in 1975, Flagrant Conduct is a rare combination of virtues. It is a gripping story of individuals fighting against systematic injustices intended for a general audience, but it is also a theoretically sophisticated work that represents an important contribution to legal scholarship. The facts about the case that Carpenter uncovers provide an especially powerful justification for the judicially enforced right to privacy that the Court applied in Lawrence.

The crucial legal background to the Lawrence case starts with Bowers v. Hardwick, the 1986 case that upheld Georgia’s ban on “sodomy.” It was always a shaky precedent, as a 5-4 decision that swing Justice Lewis Powell repudiated soon after leaving the bench. The case was also notable for the instructively contemptuous dismissals of Byron White’s majority opinion and Chief Justice Burger’s even more homophobic concurrence. On one level, Harry Blackmun was right to argue in his dissent that “the Court’s almost obsessive focus on homosexual activity is particularly hard to justify” given that on its face the Georgia statute applied to any oral or anal sex regardless of the gender of the partners. But on another level, the opinions of White and Burger were accurate expressions of the real meaning of the laws, which were intended not to actually stop private sexual relations but to stigmatize gays and lesbians even when they theoretically applied to heterosexual couples as well.

Narrowly decided, resting on bad history, at war with well-established precedents, and an open embarrassment to the justice who provided its fifth vote, Bowers was an unusually vulnerable precedent. But mounting a challenge to it was not easy, and the difficulties provide a rich story for Carpenter, who follows the Lawrence case from the point at which John Lawrence and Tyron Garner were arrested in the former’s apartment, accused of violating Texas’s ban on sodomy.

The core argument of the book is reflected in the double meaning of the title. “Flagrant conduct” is what John Lawrence and Tyron Garner were accused of. But, argues Carpenter, it was various officials representing the state of Texas who were guilty of “flagrant conduct.” This starts with the police officers who allegedly found Lawrence and Garner in flagrante delicto, and extends to the legislators who refused to repeal a discriminatory and arbitrarily enforced statute, the Harris County prosecutors who went ahead with a selective prosecution based on an incredible story and ineptly defended it in court, and the elected state judges who probably “capitulated to political pressure” and upheld the law ultimately overruled by a conservative Supreme Court.

The real flagrant conduct in the case began with the decision by police to march Lawrence and Garner out of the former’s home in handcuffs. The decision to arrest Lawrence and Garner under Texas’s rarely-enforced sodomy law was based on illegitimate motives. The arresting officers, Carpenter shows, “misuse[d] their authority” because they were challenged by an individual “whose very existence disgusted them.” Joseph Quinn, the lead officer who decided to charge Lawrence and Garner, was prejudiced against gay men, and was also outraged by the perceived unwillingness of Lawrence to respect his authority after four police officers invaded his apartment based on a false report.

As Dahlia Lithwick noted in her review of Flagrant Conduct in The New Yorker, Carpenter’s most important finding is that the arrest of Lawrence and Garner went beyond merely selective enforcement and was probably based on charges that were entirely fabricated. It is impossible to prove to an absolute certainty what the officers saw, and the two officers who allegedly witness Lawrence and Garner having sex — the only two living people who know what happened that fateful night — have not recanted their initial claims. But Carpenter establishes that, at a minimum, the story in Quinn’s official report is implausible in the extreme. Among other problems, it requires us to believe that two men who were inebriated and not professionals in the adult entertainment industry would continue to have penetrative sex for several minutes after police officers had loudly and repeatedly announced their presence in a quiet apartment, including for a full minute in the full view of several police officers brandishing weapons. Adding to the lack of credibility of the official police story is the fact that the two officers who claim to have witnessed the sexual activity could not even agree which specific sexual act they witnessed. Ironically, the two men whose arrest lead to “sodomy” laws being ruled unconstitutional probably never had sex with each other, and certainly were never in an ongoing sexual relationship. Lawrence flatly denied that he and Garner had ever had sexual relations, and some of the statements Lawrence and Garner made while being monitored by litigators who needed the official story to be preserved strongly imply that the charges against them were simply false.

Whether or not Lawrence and Garner were engaged in any kind of sexual activity when the police entered their apartment, their arrest was certainly unusual. Informally, the state of Texas never enforced its ban on same-sex “sodomy” against consenting adults acting in the privacy of their own homes. But this doesn’t mean that the laws were legally inconsequential. First of all, having seldom enforced laws on the books invites arbitrary enforcement that raises inevitable equal protection and due process problems. And second, even when not enforced bans on sodomy had far-reaching legal consequences that were not merely symbolic. Bans on sodomy were not just targeted at conduct. As Carpenter paraphrases Paul Smith’s eloquent oral argument at the Supreme Court, the Texas law “was a classification of people” rather than being simply a “classification of conduct.” Even in states where bans on sodomy theoretically applied to opposite-sex couples as well, the existence of these laws were cited by state courts as justifications for denying gays and lesbians the ability to adopt children, denying them custody of their own children, justifying the decisions of employers to fire them based solely on their sexual orientation, and a variety of other legal disabilities.

Flagrant Conduct also demonstrates the importance of class in the arrest of Lawrence and Garner. Neither of the defendants were well-educated or affluent, and they were arrested in an economically marginal, majority-minority neighborhood outside of Houston. (Garner was black, Lawrence white.) As Carpenter argues, this is not a coincidence. When laws are enforced in an egregiously selective manner, it is almost always poor people and/or racial minorities who bear the brunt of this inequality. I would add that the importance of class makes arguments that bans on sodomy should be upheld as a matter of “judicial restraint” ring especially hollow. Laws that are selectively enforced against relatively powerless minorities are not only constitutionally problematic; they are especially difficult to repeal, as the people most affected have very little ability to influence the political process.

One limitation of Flagrant Conduct is that Carpenter does very little to situate Lawrence within the context of the two landmark privacy cases that preceded it. This is unfortunate, because the salient facts Carpenter analyzes so powerfully apply to the Supreme Court’s previous cases as well. While none of the relevant opinions discuss issues of selective enforcement and class, they are critically relevant to all of the privacy cases. The ban on the use of contraception struck down in Griswold v. Connecticut had little effect on affluent people who could get a prescription from their physician, but made it much more difficult for poor people to obtain it (out of fear of violating the ban, not a single Planned Parenthood clinic operated in Connecticut while the ban was still in place.) The bans on abortion struck down in Roe v. Wade rarely led to convictions of doctors and did very little to prevent affluent women from obtaining safe abortions performed by licensed medical personnel in hospitals, but forced poor women to obtain risky black market abortions or be forced to carry unwanted pregnancies to term.

As this common thread suggests, the Court was right to hold that the Constitution implicitly protects a right to privacy in Griswold, and it was also right to extend this right in Lawrence. The powerful story told by Flagrant Conduct makes it clear that Lawrence v. Texas was an important triumph over a flagrant injustice.

Free Ridin’

[ 87 ] March 10, 2012 |

One of the plaintiffs challenging the constitutionality of the Affordable Care Act doesn’t the government has the authority to compel her to purchase health insurance. Rather, she would prefer that the taxpayers pay her medical bills:

Mary Brown, a 56-year-old Florida woman who owned a small auto repair shop but had no health insurance, became the lead plaintiff challenging President Obama’s healthcare law because she was passionate about the issue.

Brown “doesn’t have insurance. She doesn’t want to pay for it. And she doesn’t want the government to tell her she has to have it,” said Karen Harned, a lawyer for the National Federation of Independent Business. Brown is a plaintiff in the federation’s case, which the Supreme Court plans to hear later this month.

But court records reveal that Brown and her husband filed for bankruptcy last fall with $4,500 in unpaid medical bills. Those bills could change Brown from a symbol of proud independence into an example of exactly the problem the healthcare law was intended to address.


Obama administration lawyers argue that the requirement is justified because everyone, sooner or later, needs healthcare. Those who fail to have insurance are at high risk of running up bills they cannot pay, sticking the rest of society with the cost, they argue. Brown’s situation, they say, is a perfect example of exactly that kind of “uncompensated care that will ultimately be paid by others.”

Exactly correct. This is precisely why the argument that the mandate in the ACA represents some kind of unprecedented violation of freedom by “forcing” people to join the health care market would, in a rational universe, be laughed out of court. Nobody in the actually existing health care market can “choose” not to enter the relevant market, because we don’t live in a conververtarian dystopia in which the non-wealthy have to go without emergency medical care. And this is precisely the kind of collective action problem the commerce clause was designed to allow the federal government to address.

Lawrence, Gideon, and Legal Storytelling

[ 4 ] March 6, 2012 |

I’m still waiting for my copy of Dale Carpenter’s book, but Dahlia Lithwick’s review is a beautifully written and important piece in its own right.    Lithwick’s piece focuses on a central irony of the case.  Kennedy’s opinion famously focused on the importance of relationships and intimacy, but Lawrence and Garner — the two men who were arrested for violating Texas’s sodomy laws, leading to the legal landmark — were not in a relationship and never had sex.   (Of the two of four policemen who claimed to see Lawrence and Garner engaged in sexual relations, one suggested that they were engaged in oral sex and one said they engaged in anal sex.   Were it not for the broader issues involved, it seems safe to say that the charge would have had trouble holding up even in a Texas court.)    Lawrence and Garner were not plaintiffs with the kind of story who get movies made about them, a necessity created by the fact that a couple in a same-sex relationship with children would have had too much to lose:

That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

Although this wasn’t the case LBGT rights litigators would have chosen, it worked — because the Supreme Court wanted to act and had a story it wanted to tell.

Another example of this phenomenon, which worked from the other direction, is Gideon v. Wainwright, the 1963 case that held that the 6th Amendment’s right to counsel was applicable to the states. Clarence Earl Gideon was also living on the economic margins, but his basic story — a very possibly innocent man, denied a fair trial, who scrawled an in forma pauperis petition in longhand from his jail cell and got his rights vindicated by the Supreme Court of the United States — is different. Unlike the tale of Lawrence and Garner, this is an inherently compelling legal story. Gideon was literally portrayed by Henry Fonda in a movie based on the excellent bestselling book about his case that remains in print.

And yet, as Scot Powe’s classic history of the Warren Court makes clear Gideon v. Wainwright was in its own way a Court-created story as much as Lawrence. (For that matter, in its details, the Anthony Lewis book does as well.) As Powe says, Gideon isn’t exactly the story of a lone defendant triumphing against insurmountable odds, as the fact that his case was argued at the Supreme Court by LBJ’s personal legal fixer and future two-time Supreme Court nominee would make readily apparent:

Somewhat less well-known are the facts that twenty-two states filed amicus briefs on Gideon’s side and that Florida could gain the amicus support of only Alabama and North Carolina for its claim that an accused could be validly convicted without the aid of counsel; Mississippi and South Carolina were the only other states not offering counsel — hardly, especially in 1963, a stellar lineup. Moreover, hitherto unmined files in the Clark and Douglas Papers reveal that five of the eight justices had already joined an opinion in another case holding that a defendant was entitled to counsel on appeal even if he could not afford a lawyer. If there is a right to counsel after trial, there is surely a right to counsel at trial. That opinion, however, was not published at the time because the case was put over to the next term so that Fortas could win Gideon. (pp.179-80.)

Lewis didn’t have access to the information about the case Powe discusses at the time, but as Powe says the conference vote ironically meant that Gideon himself could have argued his case in front of the Supreme Court and won. In addition to that case, the Court could easily have used the 1962 case Carnley v. Cochran to incorporate the right to counsel. But the Court decided that case on narrow procedural grounds because Warren’s clerks had already found Gideon and the Court preferred to announce the overruling of a major precedent in a case involving someone who was possibly innocent of a minor burglary rather than in a case involving someone who was probably guilty of incest and child molestation.

I don’t mean to suggest that this means that the selection of plaintiffs and case facts isn’t important; it certainly is. But courts can often find a way to tell the story they want to tell.

By the way, the sad conclusion to the Lithwick review:

At a press conference after the decision was announced, Lawrence read a brief prepared statement and Garner said nothing. Some advocates hoped that Garner might have a career as a gay-rights spokesman. After he gave a drunken speech at a black-tie dinner in the plaintiffs’ honor, that idea was scratched. The case is called Lawrence v. Texas. John Lawrence died last November. Almost no one took note. Garner died five years earlier, at the age of thirty-nine. When Lambda Legal proved unable to raise funds for a proper memorial or burial, Harris County cremated him and sent his ashes home to his family in a plastic bag. There was no funeral.

I’m glad Carpenter has chosen to tell their story, and I’m looking forward to his book.

How the Prop 8 Case Should Change Equal Protection Law

[ 11 ] February 27, 2012 |

I have a piece for the Prospect that, among other things, argues that making “immutability” a major factor in whether a classification should be subject to heightened scrutiny is anachronistic:

I don’t blame White for applying the existing legal standard, and also agree with him that if forced to choose from what is essentially a false dichotomy I would put sexual orientation into the “immutable” box rather than the “freely chosen” box. (In addition, White does acknowledge that sexual orientation may not be immutable for all individuals.) But, like Graff, I believe both that this is an oversimplification and that gay and lesbian equality does not depend on entirely removing agency from the equation. People who choose same-sex partners from a group of potential partners of both genders deserve the same right to marry as people who rate a “6” on the Kinsey scale.

Fortunately, White’s compelling opinion should make it clear that the question of “immutability” should be considered superfluous. What really matters is the first category—whether people have been subject to “invidious discrimination.” As Judge White notes, there can “no dispute … that lesbians and gay men have experienced along history of discrimination.” Classifications that deny people rights based on sexual orientation act to stigmatize and subordinate, and this should be the crucial inquiry for equal protection law. Whether sexual orientation is entirely “immutable” is beside the point; based on an extensive history of oppression, sexual orientation clearly merits heightened scrutiny.

Another aspect of White’s opinion worth noting, as a commenter here also caught, is footnote 5:

The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law.

While White doesn’t consider it applicable to this specific set of facts, he seems to be signalling that he would be open to the argument made persuasively by Evan Gerstmann that bans on same-sex marriage are constitutionally defective because marriage is a fundamental right. It’s a compelling argument that would help move us away from the “class based” equal protection models that aren’t really working.

Incidentally, I also agree with Gerstmann that the valiant attempts to claim that bans on same-sex marriage should be subject to strict scrutiny because they constitute gender discrimination won’t really fly. Bans on same-sex marriage treat people of both genders the same, and while this formal equality obviously entails subordination and stigmatization, the invidious discrimination is directed at people based on their sexual orientation, not their gender per se. To argue that  bans on SSM are unconstitutional, you either have to argue that 1)sexual orientation should be subject to heightened scrutiny, or 2)same-sex marriage burdens the fundamental right of marriage and hence should be subject to heightened scrutiny. Fortunately, I think both of these alternatives are good arguments, one of which is likely to prevail eventually (although probably not as a result of this case.)

The End of Grutter?

[ 24 ] February 22, 2012 |

I would like to buck the conventional wisdom, but I agree with everybody that the grant of cert in Fisher v. UT Austin is almost certainly the end of affirmative action in higher education. Certainly, four of the necessary votes are not in question:

The bad news is that Kagan’s recusal probably doesn’t matter because her vote will be irrelevant. Everything points to there being five votes to overrule Grutter. Antonin Scalia and Clarence Thomas are sure votes—not only did they dissent in Grutter, they have consistently held that all affirmative action programs are unconstitutional (even though this is flagrantly inconsistent with the “originalism” they claim guides their interpretation of the Constitution). Samuel Alito and John Roberts were not on the Court when Grutter was decided in 2003, but the 2007 Parents Involved ruling, authored by Roberts and joined by Alito, is an ominous sign. Chief Justice Roberts’s Young Republican debate society koan “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” strongly suggests that the two George W. Bush appointees will adhere to the Scalia/Thomas absolutist position.

So this leaves us with Kennedy, who as Liptak notes, “has never voted to uphold an affirmative action program.” So I think we know where this is headed.

I think this is a good time to cite Stevens in Parents Involved:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude…


If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.”

Admittedly, I don’t agree with the vote-counting at the end of Stevens’s dissent (“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”) After all, William “Plessy was right and should be reaffirmed” Rehnquist was on the Court then, and he’s always been at the forefront of tying to stand Brown on its head. But, otherwise, Stevens is right. Alas, on a Court dominated by Republicans the silly idea that as soon as a centuries-old caste system is formally disbanded formal equality is sufficient to provide real equality of opportunity will hold sway.

Ginsburg and the Timing of Roe

[ 9 ] February 17, 2012 |

Irin Carmon’s column on Ruth Bader Ginsburg and the potentially pioneering brief Nixon’s Solicitor General Erwin “why should a mere woman get a law school space that properly belongs to a man?” Griswold prevented her from presenting to the Court is very much worth reading.

Long-time readers will know this, but I should say that I think that Ginsburg’s frequently made argument that the Court should have waited until it had a basis to decide Roe on equal protection grounds is wrong. First of all, I don’t believe in the Roe-backlash argument. And second — and, here, I agree 100% with Gerald Rosenberg — I think this assumes the Supreme Court plays a role in educating the public that I don’t think that it does. What the Court says has much less impact on the protection of rights than the substantive conclusions it reaches.

So, yes, on one level it’s unfortunate that Roe almost exclusively focuses on the rights of doctors, and on the level of discourse the much greater attention paid to the rights of women in the plurality, Blackmun, and Stevens opinions in Casey is a substantial improvement. But the thing is, whatever it said Roe did far more to actually protect the rights of women than Casey did. Under Roe, for example, Virginia’s mandatory rape provision would be plainly unconstitutional, while under Casey it is very likely to be upheld by both lower federal courts and the Supreme Court should it get that far. In theory, given the arbitrary nature and disparate impact of most abortion regulations the “undue burden” standard could provide a fairly robust protection of reproductive freedom. But as the Court actually defined it — especially when it upheld mandatory waiting periods — in practice it allows states and the federal government to do almost anything as long as they don’t ban pre-viability abortions outright. The fact that Casey pays more rhetorical attention to women’s rights is really a pretty hollow consolation.   I understand what Ginsburg means when she says in Carhart II that the Court wasn’t taking Casey seriously, and that’s the right argument to make in context, but another way of looking at it is that Kennedy was taking Casey all too seriously.

McCarthy Komedy Klassics

[ 92 ] February 14, 2012 |

Stop it, you’re killing me:

The federal courts are being reshaped by the Obama presidency, thanks to the disinclination of senate Republicans to block appointees.

If by “disinclination” you mean “more willing to block appointees than any Congress in history,” then yes.

Compounding the comedy, I also enjoyed McCarthy’s evidence for what radical judicial activists Obama’s appointees are: “I’m confident that the vast majority of Obama judges, maybe even all of them, would have no trouble holding that the HHS mandate (a) does not establish the Church of Obama as the state religion, and (b) being a neutral law of general application (i.e., it does not explicitly target religion in the text and applies to everyone equally), does not violate the First Amendment’s free-exercise clause.” Indeed they wouldn’t! Of course, at this point it seems worth noting that exactly the same thing would be true of judges that Republican Presidents would appoint. Oregon v. Smith, under which a free exercise claim against the regulation would be not merely certain to fail but frivolous, was written by known Trotskyite Antonin Scalia and joined by his comrade Chairman William Rehnquist. Although this is also beside the point — I think Smith was right, but I also think that the new regulation would easily satisfy the Sherbert test, not least because no individual’s rights are actually being burdened. Not only in the sense that very few Catholics adhere to the church’s doctrine on contraception, but because the mandate doesn’t actually require anybody to use contraception contrary to their religious beliefs. (If the argument is based an alleged subsidy, well, I’ll take that seriously as soon as Quakers are exempt from federal income tax because their tax dollars partially go to fund the military.)

It also seems worth noting that under McCarthy’s novel theory that neutral laws cannot in any way burden religious belief, Reynolds v. United States was clearly wrong. Jeez, and I thought it was same-sex marriage that was leading us on the slippery slope to legalized bigamy…

What Would AMK Do?

[ 4 ] February 13, 2012 |

With respect to how Kennedy is likely to rule on the Prop 8 case, a few additional points. First, in response to Murc here, I should make it clear what I’m not arguing, namely that Reinhardt’s opinion will somehow be able cleverly manipulate Kennedy into supporting a position he’s not otherwise inclined to go along with. As I said when similar claims were made during the Kagan nomination hearings, I regard arguments that Kennedy can be manipulated to support liberal positions as roughly on a par with arguments that Evan Bayh and Ben Nelson can be made to vote like Paul Wellstone based on arguments that rely on terms such as “bully pulpit” or “mandate.” Rather, my argument is simply that Reinhardt’s holding is one that, based on his past writings, Kennedy is likely to agree with, and hence less likely to vote to overturn and create a terrible precedent. “Manipulation” per se has nothing to do with it. Mazzone believes that this is about manipulation because he thinks that Reinhardt’s analogies to Romer are invalid, but I think he’s wrong about that. At any rate, Kennedy will make up his own mind, which is another reason why it made sense for Reinhardt not to go well beyond Romer and declare a broad right to same-sex marriage; if this is what Kennedy believes he’s free to do so anyway.

As for how much we can read into Lawrence and Romer, here’s another way of putting the argument I made here. Kennedy has demonstrated, in several cases, a willingness to vote to strike down the death penalty as applied in certain narrow ways: in cases of people under 18, people with severe mental disabilities, or in cases of sexual assault. It would be very foolish, however, for a litigator to assume that because he’s willing to strike down applications of the death penalty that are rare even in the minority of states that use the death penalty with any frequency he would therefore be willing to endorse the Marshall/Brennan theory that the death penalty is obviously unconstitutional. Kennedy is more likely to endorse a broad national right to same-sex marriage than is he is to rule that the Eighth Amendment makes any application of the death penalty unconstitutional. But, still, to be confident that he will do so based on Romer and Lawrence is deeply problematic. These cases, whose direct national impact was very modest, are a lot more like Roper v. Simmons than they are like Roe v. Wade (which would be the clearest equivalent to declaring a national right to same-sex marriage.)

There’s a final argument, made by Mazzone and also by the great Pam Karlan, that Kennedy is very concerned about his legacy and won’t want to be seen as being on the wrong side of history. Well, maybe. It’s certainly possible that Kennedy would like to see himself as being on the forefront of an important extension of civil rights that will broadly accepted very soon. It’s also possible that Kennedy has no interest in being a pariah among has valued conservative colleagues in support of social change he believes is inevitable anyway. And it’s possible that he’s aware of conservative complaints that he’s susceptible to the “Greenhouse Effect” and wants to show his backbone in a high-profile case. There are a million different essentially unfounded narratives one can create when one plays the armchair psychologist. What I do know is that his past decisions indicate that Kennedy is much more likely to uphold a narrow decision striking down Prop 8 than a broad one, and both 9CA was sensible to act accordingly. Particularly since that if Kennedy is in fact ready to go beyond a narrow ruling nothing in Reinhardt’s opinion can or would stop him.

In Defense of Reinhardt

[ 28 ] February 9, 2012 |

A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron White, I agree with Mazzone that the best outcome would be for the Supreme Court to declare a nation-wide right to same-sex marriage, but our agreement ends there. In short, I think Mazzone’s reading of Reinhardt’s opinion is uncharitable and erroneous, and more importantly I think he is far too optimistic about Kennedy’s willingness to make bans on same-sex marriage illegal in all 50 states.

9CA’s Safe Play

[ 24 ] February 8, 2012 |

Like a majority — although not all — commentators, I think that Reinhardt’s narrow opinion striking down Prop 8 was probably represented the right way to proceed:

Still, Reinhardt’s decision to go for a solid base hit rather than a home run represents a sound instinct. Kennedy is much more likely to uphold the ninth circuit if he believes such a ruling to be consistent with his own precedents. Forced to choose between a broad, immediate national right to same-sex marriage and upholding Proposition 8, Kennedy is quite likely to choose the latter. Creating a Bowers-like bad precedent would be a disaster, making it much more difficult to successfully litigate in the future – and also, possibly, allowing states to impose more disabilities on same-sex partnerships.

A ruling that immediately gave California’s 37 million residents the right to same-sex marriage and creates a precedent that would likely expand that right to many other, if not all states in the future would still be a major victory. We have to hope that Judge Reinhardt has read Justice Kennedy correctly.

Much more about the costs and benefits of the approach at the link. See also Lithwick.

The Fourth Amendment and the Surveillance State

[ 30 ] January 26, 2012 |

I have some follow-up thoughts to the GPS surveillance decision handed down by the Supreme Court earlier this week. The first major takeaway from the case is that Sonia Sotomayor was one of the best decisions Obama has made so far:

The split on the Court Monday, in essence, focused on which of these strands of Fourth Amendment jurisprudence to emphasize. The most interesting opinion in the case, however, is Justice Sonia Sotomayor’s concurrence. Although I’m a little puzzled as to why she joined Justice Antonin Scalia’s opinion—which seems to give less attention to her fundamental concerns—her own analysis is brilliant, forcefully arguing that the Court needs to rethink its Fourth Amendment jurisprudence in light of the Internet/wireless communication age. The “expectation of privacy” standard will not provide adequate protection if the increased potential power of the state is not taken into account. Sotomayor is correct, first of all, to argue, that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” And she is extremely persuasive in her argument about why the judiciary needs to check the use of GPS technology:

“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’ […] I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. … I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance.'”

Every point here is crucial, and her argument about the danger of information in the hands of third parties is particularly important.

Alas, Sotomayor spoke only for herself, so I have another piece about how to the extent that this is a victory, it’s a minor one. Normally, in a civil liberties case you’d take any vaguely acceptable opinion from Scalia and (especially) Alito and run, and neither of their conflicting opinions forecloses the development of a Fourth Amendment doctrine properly adapted to new technological powers. But the Court stopped short of even holding that this search violates the Constitution, and one can easily see either standard evolving in a way that gives the state extremely broad latitude. Thinking along the lines expressed in Sotomayor’s concurrence is desperately necessary.

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