FIRST ONE @ ONE FIRST

Is the End Near for Affirmative Action?

Posted in Clairvoyance, Law and Politics by Mike Sacks on January 18, 2011

The Fifth Circuit has just handed down its opinion in Fisher v. University of Texas upholding UT-Austin’s race-conscious admissions for those not among the auto-admitted top ten percent of their high school classes.  I flagged this case some months ago and have been eagerly awaiting its result.  In August, I devoted an entire post to the prospect of the Roberts Court granting certiorari to Fisher‘s inevitable petition and, in turn, reversing precedent to rule higher education affirmative action unconstitutional.

Senior Judge Patrick Higginbotham‘s opinion depends entirely on the Supreme Court’s 2003 decision, Grutter v. Bollinger, in which Justice Sandra Day O’Connor, writing for herself and the Court’s liberal bloc, reaffirmed the constitutionality of affirmative action in higher education.  While Justice Samuel Alito has not faced a higher-ed affirmative action case since arriving on the Court, his vote in 2007′s Parents Involved and his generally conservative voting pattern overall strongly suggest that he will not vote in accord with his predecessor’s opinion in Grutter.

The Fisher decision notably includes Judge Emilio M. Garza‘s 30 page anti-Grutter broadside, more politely labeled as a “special concurrence.”  Judge Garza, a Reagan appointee to the district court, a George H.W. Bush appointee to the Fifth Circuit, and a runner-up to Justice Clarence Thomas for Justice Thurgood Marshall’s seat on the Supreme Court in 1991, apparently wrote his special concurrence specifically for the consumption of the current Court’s conservative bloc–including Justice Anthony Kennedy, who dissented in Grutter and concurred in Parents Involved.

Garza’s concurrence in Fisher begins:

Whenever a serious piece of judicial writing strays from fundamental principles of constitutional law, there is usually a portion of such writing where those principles are articulated, but not followed. So it goes in Grutter, where a majority of the Court acknowledged strict scrutiny as the appropriate level of review for race-based preferences in university admissions, but applied a level of scrutiny markedly less demanding. To be specific, race now matters in university admissions, where, if strict judicial scrutiny were properly applied, it should not.

Today, we follow Grutter’s lead in finding that the University of Texas’s race-conscious admissions program satisfies the Court’s unique application ofstrict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles.

Justice Kennedy spoke to this very “misstep” in his Grutter dissent, arguing not that affirmative action is unconstitutional, but rather that the majority unlawfully loosened its own strict scrutiny standard for such race-conscious admissions programs.  Kennedy’s pivotal position is not lost on Garza, as evidenced in his explicit invocation of the justice:

After finding that racial diversity at the University of Michigan Law School (“Law School”) was a compelling governmental interest, the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at 387 (Kennedy, J., dissenting) (“The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.”); see generally Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517 (2007). The Court replaced narrow tailoring’s conventional “least restrictive means” requirement with a regime that encourages opacity and is incapable of meaningful judicial review under any level of scrutiny.

Ultimately, Garza cites Kennedy five times despite Garza’s own more hardline opposition to affirmative action, which he spells out in conclusion:

My disagreement with Grutter is more fundamental, however. Grutter’s failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all. [...]

Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles.

In so writing, Garza, who could have been the Court’s first Hispanic justice, makes sure to appeal not only to Justice Kennedy, but also to Justices Scalia and Thomas, the latter of whom has been a vocal opponent of affirmative action on and off the bench.  Neither Chief Justice Roberts nor Justice Alito have yet voiced their opinions on higher education affirmative action from their perches on the Supreme Court, but Roberts’s concluding aphorism in Parents Involved, which was joined by Justices Scalia, Thomas, and Alito, is instructive towards those seeking to divine the two George W. Bush appointees’ votes in Fisher.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously wrote in Parents Involved.  Justice Kennedy agreed to disagree with the statement’s simple certitude, filing his own concurrence in the judgment that put forward his more accepting–but still quite restrictive–take on race-conscious government measures.  As such, Judge Garza was smart in addressing the Court’s entire conservative bloc in his special concurrence: either way, Grutter‘s days are numbered.  Just as Citizens United reversed McConnell v. FEC and Gonzales v. Carhart all but wiped out Stenberg v. Carhart, Fisher will find the Roberts Court once again doing away with an O’Connor-backed, 5-4 precedent by the new 5-4 reality.

I’ve said it before and I’ll say it again: next term is going to be a doozy.

This piece is cross-posted at The CockleBur.

At Close Range

Posted in Case Reports by Mike Sacks on November 2, 2010

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.

Perry Brief Bonanza

Posted in Anticipation, Clairvoyance, Law and Politics by Mike Sacks on October 26, 2010

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.

The Pragmatics of Informational Privacy

Posted in Case Reports by Mike Sacks on October 5, 2010

The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.

The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.

In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction.  Problem was, they clashed over strategy.

Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.

“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired.  When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”

Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in.  Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.

“The only thing that’s in contention there is the question about treatment or counseling.  Nothing else.  So why are we talking about the universe of questions that might be asked?”  It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.

But the conservatives weren’t interested in narrowness or broadness.  Not yet.  They wanted to know a little more about this right of “informational privacy” thing.

Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”

Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.

So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch.  With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee.  Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism.  Big mistake.

“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.

And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.

If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.

Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.

But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals.  When Stormer conceded that the government should know that information, Alito shot back.  If open-ended questions are forbidden, he asked, then how does the government get at that information?

“Do you have to have a specific question on the form?” wondered Alito.  One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”

Alito’s point was as funny as it was devastating.

The Next Roberts Court: Affirmative Action

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 23, 2010

Michael Kirkland of UPI wrote yesterday about Fisher v. University of Texas, the affirmative action case currently before the Fifth Circuit.  I noted this case in a link at the top of my last post, and had originally gone on to discuss it, but I decided to keep that post focused on the abortion laws in Nebraska.  Now’s as good a time as any to continue my thoughts on the hot buttons that may reach the Court in the next election cycle, and how the Court may handle them:

Affirmative action in higher education is the remaining hot-button issue on which Kennedy and O’Connor disagreed, but has yet to be tested since Alito joined the Court.  When O’Connor sided with the liberal bloc in determining that the University of Michigan Law School’s race-conscious admissions policy survived strict scrutiny in 2003′s Grutter v. Bollinger, Kennedy dissented.

Although Kennedy is not hostile to affirmative action itself, he believes the Grutter majority watered down the Court’s strict scrutiny standard formulated in Justice Powell’s concurrence in 1977′s Bakke, which approved of a narrowly tailored use of race to achieve the compelling state interest of holistically diverse student bodies in higher education. In other words, Kennedy approved of the use of race, but would give higher-ed affirmative action schemes more searching review than the Grutter majority had demonstrated.  As he concluded in his Grutter dissent:

If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.

Whether or not Kennedy believes that UT’s consideration of race for applicants beneath its top-10% auto-admit program satisfies his application of strict scrutiny, what is certain is that his application of strict scrutiny will supersede Grutter as precedent.

If Kennedy rejects UT’s policy, he will be the limiting agent on the conservative bloc in the Roberts Court’s first foray into higher-ed affirmative action.  Dependent on Kennedy for the fifth vote to invalidate UT’s race-conscious admissions policy, the conservative bloc could not go the whole Thomas and strike down all consideration of race.  After all, Kennedy, in giving the conservative bloc its fifth vote in 2007′s Parents Involved, refused to sign onto Roberts’s opinion declaring that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  This maximalist statement was certainly not only meant for public high school admissions schemes.

Nevertheless, Kennedy’s accepting UT’s policy will have the same constitutional effect as his rejecting it.  In any scenario (assigning the majority opinion to himself and strong-arming the liberal bloc into joining him lest he change his vote; assigning the majority opinion to himself and losing his majority, thereby writing for himself in a 4-1-4 decision; assigning the majority opinion to a justice he believes to be simpatico who manages to keep him in the fold; assigning the majority opinion to another justice unwilling to revisit Grutter, compelling Kennedy to write for himself), Kennedy will bury–or, at the very least muddy–Grutter.

The justice to watch, then, will be the Chief.  In Parents Involved, he showed his hand.  He wrote more aggressively than he had written in Wisconsin Right to Life,  in which he refused to follow Kennedy, Scalia, and Thomas towards striking down the same provision of the McCain-Feingold Act that he ultimately voted to put out of its misery this past year in Citizens United.  By making his antipathy to affirmative action so clear in Parents Involved, then, the Chief does not leave himself the same room to backpedal on affirmative action as he had given himself to press onward with campaign finance.

Yet might he want to cast his lot with Kennedy in Fisher?   Roberts’s best case scenario for effectively ending affirmative action is to work with Kennedy to make its scrutiny impossibly restrictive rather than stand on the sidelines calling for affirmative action’s immediate demise.  Roberts can better retain control over his Court’s direction by placing himself in the position to put his own stamp on Kennedy-dominated jurisprudence and placing seeds of doubt within the opinion that at present will be within Kennedy’s boundaries but in the future could be used, should the Chief have a majority, to bring upon affirmative action’s demise.

But I don’t think this will happen.  I take the Chief’s position in Parents Involved at face value.  He will stand firm in his opposition to affirmative action, extending his antagonism to its use in higher education.  In doing so, he will be mindful of his own words in his Citizens United concurrence, where he stated that

if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.

Kennedy had hotly contested the Court’s approval of campaign finance restrictions since he had joined the Court, refusing the entire way to give any weight to disagreeable precedent.  Ultimately, that resulted in the Court’s overturning not only 2003′s McConnell, the most recent facial affirmation of campaign finance rules, but also 1990′s Austin v. Michigan, the case of original sin for Kennedy and his Citizens United majority.

Having provided the justification for such principled intransigence on disagreeable lines of precedent, Roberts might rather dig his heels in and argue that the problem is not simply Grutter, as Kennedy will suggest, but Grutter‘s very root, Bakke.  This position will not prevail with the current court, but if elections work in Roberts’s favor, he will be able to cite his own hot contestation–in which he and Alito will have joined Scalia and Thomas’s decades of protest–in striking down affirmative action well before Justice O’Connor’s suggested 25-year sunset provision in Grutter.

Quick Prognostication

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 13, 2010

Tom Goldstein at SCOTUSblog explains why he believes Acting Solicitor General Neal Katyal will be named the official Solicitor General.  I agree with his analysis, but want to extrapolate a bit more: Katyal will be named SG with the specific purpose of priming him for a Supreme Court seat.

Now here comes my march of the “ifs”:

The said seat will not be open for quite some time.  Justice Ginsburg, likely the next justice to retire, has no plans to do so for at least another five years.  Assuming that Ginsburg remains healthy and that President Obama wins reelection, I also assume that Obama would replace Justice Ginsburg with a woman.

Whether or not Ginsburg proves to be the final retirement under Obama, if Katyal wants to leave the SG’s office before another Court vacancy, then I expect he will be nominated to a federal court of appeal.  Doing so will bolster his position as a future SCOTUS nominee, even if Justice Kagan’s nomination straight from the SG’s office has proven federal judgeships unnecessary for a nominee’s confirmation.

If a fourth vacancy comes up before the 2016 election, then Katyal will be the pick.  By age and political allegiance, Justice Breyer would be the most likely justice to voluntarily leave the bench during the Obama administration, especially if the country’s in a Republican mood leading into 2016.  Doing so would leave room for Katyal, Breyer’s former clerk, to be a reliable successor while also becoming the Court’s first Indian-American justice.

Further, if there is no fourth vacancy under Obama and a Republican becomes president in 2016, Katyal, who is now only 40 years old, will be able to spend eight years building his reputation as a judge and still be young enough for a nomination in 2024.  Then again, by 2024, Clarence Thomas would be the oldest justice at 76–hardly retirement age for justices these days.

So instead, Katyal’s placement as SG with an eye towards SCOTUS relies on the biggest “if” of all: the departure of Justice Scalia or Kennedy a) during a Democratic administration and b) before the retirement of Justice Breyer.  This comes loaded with all sorts of assumptions, the most reasonable being a Democratic presidency beyond 2016–itself a far from a reasonable assumption.  That said, in such an instance, Katyal could be the all-around perfect pick to thwart the full-on thermonuclear confirmation war expected to occur should either Scalia or Kennedy leave their seat–and the Court’s ideological balance–in Democratic hands.

Goldstein’s explanation of Katyal’s credibility from both the left and the right could serve just as well for a SCOTUS nomination as it does for an SG appointment:

Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration.  In the Clinton Administration, he served as National Security Advisor in the Department of Justice.  He then was a very well known academic (focusing on national security questions) who also practiced before the Court.  He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign.  Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld.  (Another disclosure, I was co-counsel inHamdan, but my role was relatively minor.)  Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally. [...]

Katyal has broad support in the Republican legal establishment that should smooth the confirmation process.  My intuition when I decided to write this piece was actually the opposite:  that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation.  (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions.  He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page).  For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olsonand Richard Epstein.

Barring an actual conservative nominee or an indefinite hold on any nominee until the Republicans take back the White House, Katyal could be the best, most palatable nominee the Republicans could hope for from a Democratic administration.

Of course, a lot happens between election years and Supreme Court vacancies.  Nominations themselves are entirely dependent upon political timing.  But I would be surprised if the White House hasn’t discussed the very scenarios I outline above when talking about Katyal.

Marriage, Not Gay Marriage – says Judge Walker

Posted in Case Reports, Law and Politics by Mike Sacks on August 4, 2010

I’m speed-reading through the Prop 8 case decision that just invalidated the ballot measure as violating the 14th Amendment’s Due Process and Equal Protection Clauses.  Judge Walker framed his decision not as creating a new right to gay marriage, but rather a vindication of the institution of marriage itself:

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages. (p. 114)

And because the Supreme Court has long held that marriage is a fundamental right, and holds that California’s domestic partnership alternative for same-sex couples is no substitute for that fundamental right.  Walker then applies strict scrutiny to the plaintiffs’ claims and concludes that Prop 8 violates the Due Process Clause of the 14th Amendment, largely because he held in the findings of facts that the defense’s witnesses were “unreliable and entitled to essentially no weight”:

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”  Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

On the Equal Protection front, Walker did not assign a heightened level of scrutiny to gays and lesbians, abiding by the Supreme Court’s refusal to cast equal suspicion on classifications based on sexual orientation as those based on gender or race.  But sexual 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.

Walker provides an example of this leveling of rational basis and heightened scrutiny by collapsing sex and sexual orientation discrimination into each other:

Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

In doing so, he also pulls out a nugget from Justice Ginsburg’s Christian Legal Society opinion that some seized on several weeks ago as a gay marriage “time bomb” in dicta:

Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583 (O’Connor, J, concurring)). [my emphasis]

Just for the sake of it, though, Walker does explicitly intimate his belief that even though he is applying rational basis, strict scrutiny is appropriate:

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. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

This note, however, is more evidence that levels of scrutiny collapse when one recognizes animus-driven actions for what they are.  More searching review may come in time for less overtly hostile acts and practices, but hopefully by that time, there will be no more suspect classes and only suspect actions.

A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal.  Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court.  As opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges.  For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related.

But for unanimity’s sake, Kennedy, or maybe a justice or four in the liberal bloc, would be well-advised to latch onto Walker’s Equal Protection analysis as well.  Under this analysis, Scalia has already accepted gay marriage as an legal inevitability, per his Lawrence concurrence:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

Of couse, gaining Scalia’s vote–even in an exasperated concurrence–is wishful thinking.  But at least the Court’s putative majority in Perry v. Schwarzenegger, — U.S. — (2013) will take pleasure in quoting him, as Walker did in his Finding of Fact 21(c) on page 61 of his 136-page opinion:

Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”)

Nevertheless, there always does remain the chance that this putative majority may turn to mush in the face of a federal right to same-sex marriage, whether or not Walker’s framing survives the Ninth Circuit’s go-round.  And as I wrote after the Massachusetts DOMA cases:

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

We must remember that even though Kennedy likes his rights robust, he has also become the limiting agent to the abortion right he helped preserve in Casey.  But there is a difference between the gay rights Kennedy has helped protect in Romer and Lawrence and the abortion rights he has since restricted since Casey: gay marriage, unlike abortion, has no dauntingly actual life-or-death element.

Yet as a matter of political consequence, a critical mass of states has not yet come to pass on gay marriage.  With only a handful of states and the District of Columbia recognizing same sex marriage, Perry may be more Roe than Loving, and I imagine that every member of the Court will have that in mind when considering the case.

What is certain is that same-sex marriage is gestating in the states, however few have so far endorsed it.  The question, then, will be whether Kennedy sees Walker’s opinion as a new birth of freedom for a class long robbed of its dignity, or as a grisly killing of viable progress throughout the states’ slow and steady political processes.

DOMA Unconstitutional?

Posted in Law and Politics by Mike Sacks on July 8, 2010

The gay marriage battle has taken a significant step towards the Supreme Court today.  No, the verdict hasn’t yet been announced in California’s Proposition 8 case.  Rather, a federal district court in Massachusetts, in a pair of cases, has declared the Defense of Marriage Act, or DOMA, unconstitutional as applied to states and individuals.

Via Above the Law:

A federal judge in Boston — Judge Joseph L. Tauro (D. Mass.), appointed to the bench by President Nixon back in 1972 — just issued a ruling striking down Section 3 of the Defense of Marriage Act (DOMA). As you may recall, DOMA is the 1996 law that effectively bans recognition of same-sex marriages for purposes of federal law.

One case, Massachusetts v. U.S. Health and Human Services, struck down DOMA as a violation of Massachusetts’ Tenth Amendment rights.  The other case, Gill v. Office of  Personnel Management, declared DOMA to violate the equal protection component of the Fifth Amendment as applied to seven same-sex couples and three surviving same-sex spouses who were married in Massachusetts.

As this case seems destined for One First Street, somewhere Elena Kagan is thankful she didn’t commit to Sen. Chuck Grassley’s questioning her over the precedential value of Baker v. Nelson, the 1971 Minnesota Supreme Court case that held that a state law restricting marriage to the union of a man and a woman did not violate the Constitution–a holding that the United States Supreme Court dismissed on mandatory appeal in 1972 “for want of a substantial federal question.”

And somewhere in Iowa, Grassley is CTRL-F’ing the two opinions for any mention of Baker v. Nelson, only to find no mention of it by Judge Tauro.

In fact, by prefacing his questions to Kagan with the assertion, “Marriage is a state issue,” Grassley framed Baker v. Nelson in a way favorable to the prevailing plaintiffs in today’s rulings.  After all, Judge Tauro’s opinions struck to the heart of a federal law that cut against a state’s decision to recognize same-sex marriages.

But Grassley had not the Massachusetts cases in mind, but rather the Prop 8 case, Schwarzenegger v. Perry, in which a state constitutional amendment limiting marriage to a man and a woman violates the federal constitution.  On this point, Perry is the opposite of the Massachusetts cases: whereas Mass v. HHS asserted a state’s traditional supremacy in marriage matters over federal statutory meddling, the plaintiffs in Perry seek federal supremacy over a popularly-passed state constitutional provision.

Where the two come together, however, is in Gill.  Just as the Perry plaintiffs seek cover of the federal constitution’s guarantee of equal protection, so did the Gill plaintiffs prevail on that very claim.  The difference, of course, is that Gill employs the federal constitution to strike down a federal law; the Perry plaintiffs seek to use the same provision to strike down a state law.

But that may be a distinction without a difference when it comes to an equal protection claim rooted in sexual orientation discrimination–a concept that had no popular support or force of law when the Court passed on Baker v. Nelson in 1972.  But Romer v. Evans and Lawrence v. Texas set the Court on the path towards looking at state marriage laws that make classifications between sexual orientations with similar suspicion to those that did so on the basis of race.  And the Court surely meddled in the state’s traditional power to regulate marriage when it did find enough of a substantial federal question in the anti-miscegenation statutes in struck down in 1967′s Loving v. Virginia.

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

Either way, though, Grassley’s implication that marriage, unlike criminal law, remains free from federal constitutional scrutiny rests on shaky historical foundations.  But then, if we take that notion seriously, what does that say about Tauro’s opinions today?

Graham v. Florida

Posted in Case Reports by Mike Sacks on May 17, 2010

Today Justice Kennedy extended his Eighth Amendment legacy as the author of the majority opinion in Graham v. Florida.  The Court invalidated sentences of life without parole for juveniles convicted of non-homicide crimes.  His opinion was joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor.

Justice Roberts added his vote to the majority’s judgment that Graham’s sentence should be overturned, but refused to follow the majority’s broad determination that all sentences like Graham’s facially violate the Eighth Amendment’s ban on cruel and unusual punishment.

Justice Thomas, in a dissent joined by Justices Scalia and partially by Alito, wrote that the Court has rejected “the judgments of…legislatures, judges, and juries regarding what the Court describes as the ‘moral’ question of whether this sentence can ever be ‘proportionat[e]‘ when applied to the category of offenders at issue here.”

In addition, Thomas struck at the return of Justice Kennedy’s famous citations to foreign law at the close of the majority opinion.  Unwilling to dignify such references with a rebuttal in the body of the dissent, Thomas “confine[d] to a footnote the Court’s discussion of foreign laws and sentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation.”

Justice Alito, writing for himself, added a short dissent noting that courts could still sentence juveniles to very long sentences without parole, as long as the sentences were not for life.

In two-paragraph concurring opinion, retiring Justice Stevens, joined by Justices Ginsburg and Sotomayor, attacked Justice Thomas’s dissent as too “rigid” an interpretation of the “evolving standards of decency” doctrine that has guided the Court’s Eighth Amendment jurisprudence since 1910.  Stevens wrote:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Kennedy: The Buono-CLS Nexus?

Posted in Clairvoyance by Mike Sacks on April 21, 2010

Because today’s opinions were all dogs, let me entertain you with some rank speculation regarding this term’s two church-state cases.

Justice Kennedy is the only member of the Court yet to write an opinion from the October sitting.  As of today, Salazar v. Buono remains the only case not yet decided from the October sitting.

The delay in Buono augurs a bitter split with lots of footnotes flying around.  From the oral argument transcript, let me go out on a limb and say that Kennedy sided with the liberals on this one.  Perhaps the conservatives–or, at least Scalia and Alito, by the write-ups–hoped the Court would rule more broadly than the standing issue that the rest of the justices ultimately focused upon.  Or maybe the decision’s delay means that in Kennedy’s hands, the opinion did address the broader merits of whether Congress violated the Establishment Clause by transferring its ownership of a desert cross on government lands to a private entity so to avoid First Amendment suits.

Either way, perhaps the justices’ post-argument positioning triggered the Court’s December cert. grant to Christian Legal Society v. Martinez, which the justices had sat on since the spring.  Wanting to make up for one (still totally conjectural) church-state loss with Buono, the conservative bloc may have sensed in CLS a big, broad win for the Free Exercise Clause.

The Court heard CLS on Monday.  The justices fell to their familiar positions, but the conservatives’ (still totally speculative) gamble may have been for naught: Justice Kennedy didn’t seem at all convinced that the case’s facts had been sufficiently clarified to garner a ruling on the merits.

In the coming weeks and months, we’ll get the decisions.  But whether I’m spectacularly right or wrong on what when down behind the curtain may have to wait until Justice Stevens’s papers go public.  And for the sake of sating speculation, let’s hope Stevens will mimic Marshall and Blackmun‘s speedy release of their papers rather than follow Souter down the fifty-year memory hole.

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