Linda Greenhouse has a compelling Opinionator column today at the New York Times that concludes that Chief Justice Roberts, not Justice Kennedy, may be the key vote in the individual mandate cases that will ultimately come before the Court. Thus continues the Great 2010 F1@1F-Greenhouse Mind-Meld.
Reminding readers that Roberts’s mentor and predecessor, Chief Justice Rehnquist, aborted his own “federalism revolution” in 2003′s Nevada Department of Human Resources v. Hibbs, Greenhouse goes on to examine Roberts’s own role as the fifth vote to last year’s broad, Breyer-written federalism case, United States v. Comstock. She concludes:
In his decision this week, Judge Hudson also mentioned the Comstock case, endeavoring to show why it didn’t save the statute. In my view, his effort to wish the case away was unpersuasive, but my view is not the one that matters. The view that ultimately may count the most is that of Chief Justice Roberts. As everyone knows, he was once William Rehnquist’s law clerk. So my question, as the health care debate continues on its path to the Supreme Court, is this: When John Roberts thinks about his former boss and mentor, which Rehnquist does he see? The one who started the federalism revolution, or the one who ended it?
Without my gunning for her attention (a/k/a “the Greenhouse Effect) and surely without her looking to F1@1F, Greenhouse and I have been on the same wavelength, absent reference to Rehnquist’s ghost, for nearly a year now.
For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.
John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.
F1@1F in May, post-Comstock:
Of course, Roberts may have simply agreed from the start with Breyer and the liberals. But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer. However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.
After Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the individual mandate. Before oral argument in EMA, no one could see any daylight between Roberts’s robust First Amendment opinion for the Court in Stevens and the similar violence-as-obscenity facts in EMA, but Roberts made clear from the bench that he believed that Stevens, however sweeping in its language striking down Congress’s ban on depictions of animal cruelty, did not touch the constitutionality of California’s ban on the sale of violent video games to minors. Accordingly, in the health care cases, Roberts already has a blueprint in Judge Hudson’s decision for distinguishing Comstock away, however apposite Comstock might seem.
Still, history and politics will be sitting like massive gorillas in the room–indeed, every room: chambers, conference, court–when this case finally reaches the Court. Not only would a decision against the mandate mark the Court’s deepest incursion into pre-1937 territory since, well, 1936, but it would also come during a Presidential Election year. A conservative majority ruling against the liberal incumbent’s signature first-term legislation will be an inter-branch collision not seen since, you guessed it, 1936. The decision itself will fast become campaign fodder for Obama to cast the Court as unprincipled political actors hell-bent in their conservative activism to collide with the elected branches and stand athwart the forward march of history screaming “NO!”
How unseemly it all could be.
And let’s not forget that unlike Citizens United, which sat alone on last term’s docket among a bunch of less-than-massive cases, the health care cases may very well reside on the same docket as the Prop 8 case, the University of Texas affirmative action case, the Arizona immigration case, and maybe a Nebraska abortion case. The Court will have to pick its hot button to push in a deeply political moment, and I can’t see the Chief selecting the one that reduces to rubble a cornerstone of modern American jurisprudence.
This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night. In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.
Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:
This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor. At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.
Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility. They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas. Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean. Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.
Alito and Sotomayor, on the other hand, are their sides’ enforcers. Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle. In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded. Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action. Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America. It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.
The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it. For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements. But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.
This piece is cross-posted at The CockleBur.
The ABA Journal has honored F1@1F as one of the five best “Court Watch” blogs among its 4th Annual Blawg 100 list. Here’s the blurb:
First One @ One First is a more personal, hipper complement to SCOTUSblog. Mike Sacks (who guest-blogged and wrote for the ABA Journal) took his coverage of the venerable court to the line, where he logged what motivates individuals to wait hours on end to get a seat to witness oral arguments in person.
Register to add your vote of confidence in the ABA Journal’s impeccable editorial judgment.
As we honor our veterans’ service today, I would like to recommend Michael Serota’s column at AOL News today challenging the constitutionality of the severe delays many veterans face in receiving their disability benefits from the VA.
Because of the severe psychological and physical trauma that service members endure, many veterans are unable to earn a living or support themselves. As a result, nearly 1 million veterans file claims every year seeking disability benefits to compensate them for the reduction in quality of life and impaired earning capacity caused by an injury they suffered while serving the country. These benefits can be a financial lifeline, especially since such a high percentage of the injuries incurred on the battlefield are so debilitating. Indeed, for many veterans, disability benefits are the only thing protecting them from home foreclosures, bankruptcy or even homelessness.
The VA denies about 11 percent of the nearly 1 million benefits claims filed each year, forcing these veterans to enter the VA’s dreaded appellate system, often referred to as “the hamster wheel.” The average time a veteran must wait for a benefits claim to work its way to a decision from the VA’s appellate body, the Board of Veterans Appeals, is a mind boggling 4.4 years. Even then, a large portion of the board’s cases are remanded, forcing many veterans to begin the process all over again. [...]
Fed up with the injustice of these massive delays, two veterans organizations, Veterans for Common Sense and Veterans United for Truth, filed a lawsuit in the Northern District of California in July 2007 alleging, among other things, that 4.4-year appellate delays are unconstitutional. Although the trial judge in that case made a factual finding that the average wait time for a veteran’s appeal was 1,601 days, he concluded that there was in fact no legal violation.
The case is currently pending before the Court of Appeals for the 9th Circuit, which can, and should, reverse the lower court and find that these delays violate the due process clause of the Fifth Amendment, which ensures that nobody will be deprived of property without due process of law. Previous court cases have already established that veterans benefits are “property” and that veterans have a constitutionally protected property interest in receiving those benefits through fair procedures. The question that remains is whether a 4.4-year delay constitutes due process.
Read the whole column here.
Professor Noah Feldman has written a column at Slate that asks whether the reputations of Justices Sotomayor and Kagan will one day occupy the same rarefied air as those of Justices Black and Frankfurter. The comparison, extrapolated from a single Sotomayor dissent from denial of certiorari in a habeas case this term and nothing at all from Kagan, seems little more than an attempt to peddle his new book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, in which he explores the rivalries and relationships of Justices Black, Frankfurter, Douglas, and Jackson.
I am eager to read Feldman’s book–I just badgered Georgetown’s law library today about when it is slated to arrive–because I have long been fascinated by the Court’s primordial ideological oozing between 1937 and 1954. FDR appointed nine justices, all supporters of the New Deal’s constitutionality. They helped vanquish conservatism as it was known and realign partisan politics such that both Republicans and Democrats would support, or at least did not reject, the New Deal for the next half-century.
Beyond burying Lochnerism, however, the nine “young” men were left to their own devices in molding a jurisprudence for the modern era, when end of the Depression began the fraying of FDR’s big tent. World War II led to questions about executive power. The start of the Cold War returned to the Court’s docket questions of free speech rights of political dissidents. And postwar America, after destroying the Nazis in Europe, was finally forced to reckon with its own racist regimes.
The greatness of these questions required great answers. And those answers, from judicial restraint to strident activism, from originalism to living constitutionalism, all variations on even older themes of principle versus pragmatism, remain with us today.
So I found myself puzzling over Feldman’s concluding paragraph:
[O]ne lesson of Roosevelt’s court—more relevant than ever—is that strong rivalries and personalities make great justices. No fewer than four of Roosevelt’s appointees—Black, Douglas, Frankfurter, and Jackson—became towering figures in judicial history. In recent years, we have had on the left and center polite justices who do not vie for leadership—and who do not produce comparably incandescent constitutional ideas or judicial opinions. As we are beginning to see, the new justices on the Roberts Court have the chance to do better. The first move was Sotomayor’s. Will Kagan go next?
Strong rivalries and personalities are not enough to make great justices. The times must also require greatness. And greatness does not come by playing defense, for which the Court’s liberal wing has been increasingly relegated since the 1970s. Meanwhile, the left’s big offensives are towards full gay equality and death penalty abolition, and getting there depends, at least for now, on Justice Kennedy’s sense of his own greatness.
It’s hard to see right now when, if ever, the next great political realignment will occur. History says such realignments revolve around one great issue, and we’ve had only three: Revolution, Civil War, Depression. Gay rights and the death penalty, however huge they are for those in the arena now, are not epoch-defining issues that, once resolved, will bring us into a brave new world both politically and jurisprudentially. For his part, Feldman, in a New York Times Magazine article over the summer, proposed the “rediscovery” of liberal economic jurisprudence as a way to create room for the left’s greatness on the Court, but there’s a difference between quoting Holmes and Brandeis and being Holmes or Brandeis. Similarly, the conservative justices will be revisiting history, not writing it anew, if they follow the right’s flirtation with neo-Lochnerism into the death of Obamacare, and finally achieve the end of affirmative action and the reversal of Roe.
This is not to say that Sotomayor and Kagan, or Roberts and Alito, will not rise to the greatness of their most incandescent predecessors. But I’d rather have a bench full of moderates often politely–and, on occasion, forcefully–making inevitable progress in our imperfect, somewhat stable society than suffer through the doom and gloom that gives birth to a few squabbling greats.
This piece is cross-posted at The CockleBur.
READER DISCRETION ADVISED:
THIS POST IS RATED “M” FOR MATURE.
FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.
First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench. How close? For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:
For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment. And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.
Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother. Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow. His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent? Comic books? Movies? Rap Music? Bugs Bunny?
From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini. If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.
But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry. Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors. At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism. With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”
At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.” But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”
Morazzini wasn’t destined to survive this onslaught. Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech. When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him. Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.
Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument. But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play. Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty. The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.
To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.
Graphic violence. There is a difference. We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description: Pour gasoline over them, set them on fire and urinate on them. We do not have a tradition in this country. We protect children from that. We don’t actively expose them to that.
With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith. Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:
And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?
Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest. Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away. Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.
Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground. The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past. And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.
The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning. For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?” But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.” These are words of condemnation, not of endorsement. They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start. And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.
But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court. Today, all that mattered was that more justices killed more of California’s law than they did its challengers.
Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice. Said Sotomayor:
So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.
Just temporarily is right. Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.
I’m off to class now, but I hope to get my recap of the Schwarzenegger v. EMA argument up at a reasonable hour. Briefly, the California lawyer got mercilessly pummeled by Sotomayor, Scalia, Ginsburg, Kagan, and Kennedy, while Roberts stayed almost completely quiet for the first half-hour, only to be EMA’s prime antagonist during the second half-hour. Breyer joined Roberts in support of the CA law, while Alito, who had sharply questioned CA, more sharply questioned EMA. Alito also had some lighthearted, but jurisprudentially serious, quips towards Scalia on the limits of originalism for First Amendment cases concerning media never imaginable in 1791, let alone 1951.
Until then, here are some scenes from the sidewalk:
Tomorrow morning, the Court will hear Schwarzenegger v. Entertainment Merchants Association. As far as I’m concerned, the question of whether government may ban the sale of violent video games was answered nearly ten years ago by a unanimous Seventh Circuit panel decision penned by Judge Richard Posner:
The issue in this case is not violence as such, or directly; it is violent images; and here the symmetry with obscenity breaks down. Classic literature and art, and not merely today’s popular culture, are saturated with graphic scenes of violence, whether narrated or pictorial. The notion of forbidding not violence itself, but pictures of violence, is a novelty, whereas concern with pictures of graphic sexual conduct is of the essence of the traditional concern with obscenity. [...]
People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.
No doubt the City would concede this point if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus’s grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants; or The Divine Comedy with its graphic descriptions of the tortures of the damned; or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds. Or if the question were whether to ban the stories of Edgar Allen Poe, or the famous horror movies made from the classic novels of Mary Wollstonecraft Shelley (Frankenstein) and Bram Stoker (Dracula). Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.
Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own. Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred. The cult of Sherlock Holmes is well known.
Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories. Take once again “The House of the Dead.” The player is armed with a gun-most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player’s duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.
Self-defense, protection of others, dread of the “undead,” fighting against overwhelming odds-these are all age-old themes of literature, and ones particularly appealing to the young. “The House of the Dead” is not distinguished literature. Neither, perhaps, is “The Night of the Living Dead,” George A. Romero’s famous zombie movie that was doubtless the inspiration for “The House of the Dead.” Some games, such as “Dungeons and Dragons,” have achieved cult status; although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons. We are in the world of kids’ popular culture. But it is not lightly to be suppressed.
Although violent video games appeal primarily to boys, the record contains, surprisingly, a feminist violent video game, “Ultimate Mortal Kombat 3.” A man and a woman are dressed in vaguely medieval costumes, and wield huge swords. The woman is very tall, very fierce, and wields her sword effortlessly. The man and the woman duel, and the man is killed. Another man appears-he is killed too. The woman wins all the duels. She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood. Of course, her success depends on the player’s skill, and the fact that the player, whether male or female, has chosen to be the female fighter. (The player chooses which fighter to be.) But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men. It thus has a message, even an “ideology,” just as books and movies do.
American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001). cert. denied 534 U.S. 994 (2001).
One need not be a First Amendment absolutist or doctrinal purist to find California’s ban as problematic as the Indianapolis regulation at issue in American Amusements. In true Posnerian spirit, there is an economics-driven, pragmatic reason California’s law must fall.
Indianapolis’s regulation required minors to be accompanied by their parents in order to play violent arcade games. Gamers with a sense of history can correct me if I’m wrong, but the most high-end arcades cost a dollar or so to play in 2000. For minors, that’s a far lower bar to clear for access to violent video games than the $60 home console-based games at issue tomorrow morning. If the state’s paternalism a decade ago could not thwart the constitutional rights of a kid with a fistful of couch-found quarters, then similarly doomed should California’s ban be against today’s games, for which a parent’s consent-by-pocketbook is the de facto state of play.
This piece is cross-posted at The CockleBur.
On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution. Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month. The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.
Yesterday, the opposition amicus briefs–that is, those arguing to uphold Walker’s decision–flooded in. Prop8TrialTracker.com has compiled 24 of the briefs here.
I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief. I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap. If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.
In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:
Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.
Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically. But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:
The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”
Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination. “In light of these repeated legislative and ballot-box defeats,” the brief states,
it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women. Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.
The brief goes on to tackle the Ninth Circuit precedent standing in its way. In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny. But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”
The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:
The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers. The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”
Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled. Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.
Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation. But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom? Here, there is some equivocation. As Walker wrote:
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test. Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension. That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws. But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.
As I wrote on the night of Judge Walker’s decision:
[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny. Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional. Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.
But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant. If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational. Hypothetical justifications are now inadmissible opinions unworthy of deference. And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.
It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall. Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades. Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.
In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously. After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense. The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America. Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity. Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.
Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s. I have doubts that his liberal colleagues will once again join him in ducking the standard of review. If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws. At worst, he will be committing unprincipled, political cowardice.
My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved. However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself. If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force. Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.
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