Suspense at the Supreme Court
California Lawyer

Suspense at the Supreme Court

June 2013

June 25, 2013 - The Supremes really know how to stoke suspense....

Take big cases, raising seemingly unresolvable issues, and leave them that way. Well, probably a bit unfair. We do know that racial diversity is a compelling governmental interest. Of course, we knew that before. But wait, we also know that if university's use race as part of the mix of individual consideration that they should only do that narrowly and because there is no other way for diversity to result. Gee, we knew that before, too. Oh well, it's nice to give Texas another bite at the apple.

Some of my conservative friends claim that the Roberts Court is more political than legal, but I suspect that's only because they are legally disappointed - after the Chief's rescue of Obamacare - to reap all the legal dividends they expected from the political seal of approval given John Roberts by the Federalist Society - known to have a few policy views casting large originalism shadows on the law, itself.

In fairness to the Chief Justice, he turns out to be just what the legal ideological societies don't like -- an open-minded jurist, capable of discerning wisdom in more than one direction, and beyond the narrow confines of the meaning of words in 1789. John Roberts is neither liberal nor conservative in whole; rather, he steadfastly remains his umpire metaphor. The Chief Justice has a continuing desire to be a minimalist in the Rehnquist mold, and on occasion this means he indulges (as did Rehnquist) theories that are capable of unifying the Court in somewhat unusual ways. After the oral arguments in the same sex cases, I was convinced that the Chief was searching for another Obamacare surprise - that is, where in the process of articulating conservative limits to the commerce and spending powers, which had eluded the legal right for decades, he sustains an historic expansion of federal power over matters of health. Neat maneuver, but is something like that available to the Chief Justice in the same sex cases? For a while I thought the Chief was tempted to revive privileges and immunities finding Prop. 8 to be invalid as drawing an irrational classification with respect to a fundamental interest. The Court had done something like that in several obscure cases (Saenz; Shapiro) touching upon invidious distinctions among state residents with respect to welfare and other social benefits. Can't draw crooked lines among one's own residents even if some lines can be drawn differently between insiders and outsiders. Will the Chief Justice do this? I doubt anyone actually thinks so, except perhaps Justice Thomas who has been a big fan of reviving privileges and immunities. This would confuse the progressives long enough to allow the conservatives to walk away with a revived privileges and immunities clause, while of course, giving victory to the challengers of Prop. 8. A state, it might be said, can no more selectively give increased welfare to some state residents over others than the state can deny marriage to some but not others resident in your state. Nevertheless, were the Chief Justice to go this route, it would be a split-the-baby result, like Obamacare - where the Chief pulled the spending power out of from behind his "umpirial" chest protector to save health care from the rare limits of the commerce power.

There are two same-sex marriage cases still being footnoted behind the Court's red velvet curtain. I earlier predicted that the Court would resolve against both the federal so-called "Defense of Marriage Act" or DOMA as well as California's Proposition 8. My prediction was not anchored so much on the alleged infirmity of telling two adults who wish the law to acknowledge their faithfulness and love for each other than on the fact that despite the importance of the issue, no one made certain the right persons would be in court to bring the case.

First, the person who challenged the statute, which was based on her being taxed far more heavily, merely because her partner was a she, not a he, won below. Winners don't get to appeal. What about the members of Congress who passed DOMA thinking it would deny same sex couples equality under federal law? Certainly, they are disappointed, but members of Congress don't usually have the power to sue other members of Congress because they disagree over the wisdom of a measure. That's what legislative debate is for, and while a few unique situations allow legislators to go to court, it is usually because there was a faulty process that effectively denied their vote. There is no showing of that here. The best guess is Justice Kennedy is writing the DOMA opinion, and based on his questioning, some think DOMA is going down because it interferes with the historic role of the states over marriage. If Kennedy goes this way it will mean two things: First, he's found a way to give his conservative friends something they have yearned for since Jefferson praised local, yeoman farmers as the backbone of the American Constitution and second, he's making stuff up about the Tenth Amendment, which in modern times, has not protected any discrete body of law as only assigned to the states rather than the federal government.

Justice Kennedy has more than an independent streak in his personality. His willingness to counter his own previous thinking is well known, but he often does so with a sigh of disappointment over not being able to hang with his more traditionally minded colleagues. When Justice Kennedy divided from Justice Scalia some years ago in striking down a Texas law that allowed police to prohibit the private, in-home sexual behavior of homosexuals, but not heterosexuals, Justice Kennedy did his best to calm down Justice Scalia who accused Kennedy of opening the door to same-sex marriage. Kennedy reached out with some poignant remarks about our common humanity, thinking conservatives would be at least attracted to these worthy, albeit somewhat over the top Hallmark-like sentiments. They weren't, but can conservative justices really resist using the first principles of the "Federalist Society" to reinvigorate state authority vis à vis the federales?

Even if the Bush and Reagan appointees pass on using a conservative rationale that leads to a progressive or liberal result, is there a platform upon which Justice Kennedy could express his disapproval of DOMA that might win over at least the middle-of-the-road Chief? Yes, and unfortunately for the president, it's him. President Obama wanted to express his political opposition to DOMA by means of legal argument claiming the responsibility expressly given to him "to take care that the laws are faithfully executed" permits selective defense of the statutes he is constitutionally obliged to enforce. This type of royal prerogative - to defend the laws one likes, but not others - should have disappeared with James I. President Obama has better ways to express his distaste for what he believes is an invidious distinction than judicial pleadings. I suspect the Chief Justice would want to say that in so many words. Justices Kennedy, Scalia, Thomas, and Alito would be on board, too. Unlike the federalism argument, this complaint about presidential mixing of law and politics does not invalidate DOMA, but it hardly validates it either. Hence, since Ms. Windsor won below; there is no sufficient adversity for the justices to say anything about DOMA. But the lack of Supreme Court jurisdiction does not erase that at least one circuit court (and others are likely to follow) will have declared DOMA invalid on equal protection grounds, and by this tortuous, but not inconceivable path, Justice Kennedy could write a little something for everybody, leaving DOMA declared dead in a few states - which if Congress doesn't act to repeal will be a pronouncement of invalidity spreading nationwide.

On Prop. 8, the Chief is rumored to be writing the opinion, and since the trial or district court injunction did run against state and local officials who at that point were declining licenses to same sex couples based on Prop. 8, there were persons with sufficient adversity in the case. By the time the case was appealed, the proponents of Prop. 8 became the proposition's defenders. In the Ninth Circuit Court, the state and local officials no longer wished to enforce Prop. 8 and no one - other than the private citizens who banded together -- was left to champion Prop. 8. (The lower court, for reasons unclear, denied a motion to intervene by county officials in Imperial County who wanted to enforce Prop. 8 even as Governor Jerry Brown and Attorney General Kamala Harris were unwilling to do so. The Chief Justice wondered out loud at the oral argument why Imperial County - the party sufficiently adverse to Prop. 8 under federal law was not permitted to go forward. Anyone familiar with the Chief Justice knows he is a stickler on a proper conception of the separation of powers, and for this reason, the Chief won't casually just accept the state court view that its mechanism of allowing proponents to pick up the case when public officials give it up is sufficiently adverse; this is an Article III federal, constitutional question, not a state one. Bottom line: My original prediction holds (See "Will the Supreme Court Be Unanimous?" and "The Day After the DOMA Argument" ): both DOMA and Prop. 8 will be no more after the opinions are announced in the morning of June 26, the Court's announced final day of the term.

Douglas W. Kmiec, former US Ambassador to Malta, is the Caruso Family Chair in Constitutional Law and Human Rights at Pepperdine University law school.

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