Sunday, June 30, 2013

In Defense of our Crazy Uncles

This week the Supreme Court issued four big decisions, capping a term that decided 73 cases in all.
  • Shelby County v. Holder:  The voting rights case.  The court held 5-4 that Section 4 of the Voting Rights act of 1965 was unconstitutional.  Section 4 of the VRA established federal oversight of local voting requirements in jurisdictions where the Attorney General determined that there was less than 50 percent voter registration or turnout  as of 1964, 1968 or 1972.  When originally passed, the preclearance provisions were intended to expire after five years, but they were reauthorized by Congress four times, most recently in 2006 for twenty-five years.  Nine states fit the formula of less than 50% registration in 1964, 1968, or 1972,  and continued to be subject to federal oversight, even though each of these states would not fit the formula in 2013.  Roberts majority opinion held that the extension of VRA based on 40 year old facts,  that admittedly have changed, was unconstitutional.  The court invited Congress to update the formula, although it's clear that this is not going to happen in today's Congress.  
  • Windsor v. United States:  The DOMA case.  The court held 5-4 that DOMA's definition of "marriage" or "spouse" as excluding same sex partners for purposes of all federal laws--over 1,000 of them used the terms--was unconstitutional.  Edie Windsor and Thea Spyer had a long term relationship.  In 2007 they were married in Canada and in 2009 Thea died, leaving all of her estate to Edie.  Because of DOMA Edie Windsor had to pay $363,053 in estate taxes which she would not have had to pay if her marriage were recognized by federal law.  
  • Fisher v. University of Texas:  The Affirmative Action Case.  Abigail Fisher was denied entry to the U of T and sued to challenge the decision on the grounds that she was kept out by the school's preference for less impressive minority applicants.  The court held 7-1 to uphold affirmative action programs, but to tighten the standard of review for such programs. The use of race as a classification in affirmative action programs must meet the "strict scrutiny" test; the program must be narrowly tailored to achieve its end; and courts must determine that the the program is necessary and that there is no other realistic alternative.  The justices sent the case back to the District Court to make its determination whether the U of T program meets the standard.
  • Hollingsworth v. Perry:  The CA Proposition 8 case.  Back in May 2008 the California Supreme Court held that California statutes and initiatives which precluded same sex couples from marrying were unconstitutional under California law.  Eighteen thousand same sex couples were married in California, but in November 2008 the voters approved Proposition 8, which said that only a marriage between a man and a woman would be valid or recognized in California.  Proposition 8 was challenged as unconsitutional in Federal District Court and Judge Vaughn Walker found that it violated the equal protection clause of the 14th Amendment of the U.S. Constitution.  He found that "strict scrutiny" was the appropriate standard of review, but that Prop 8 would be unconstitutional even under "rational basis" review.  The state, both under the Schwarzenegger and Brown administrations, elected not to defend the Proposition.  However, the proponents of Proposition 8 were allowed to intervene in the case, as permitted by California law.  This week the Supreme Court held 5-4 that petitioners in the case did not have standing to appeal the case; therefore, Judge Walker's decision is the last word in the case.  
The upshot of these cases is that the nine states and handful of counties that were affected by the voting rights act are no longer subject to special federal scrutiny.  The nine states are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.  These states will still be subject to the constitution, and if they misbehave too badly, Congress may revise the formula in the VRA.  Affirmative action is left in place, but scrutiny of affirmative action programs has been tightened.  DOMA is gone, and good riddance.  And marriage between same sex couples is legal in California and is heading towards being legal throughout the land.  

The outcome of these four cases does not seem radical.  In the political sphere, the left is generally pleased with the outcome of Windsor and Hollingsworth, the right is generally pleased with Shelby, and  Fisher is a draw.  Of course, since these cases are all political at heart, there is much heated discussion.  Looked at through partisan political lenses, Windsor and Shelby are five judges grabbing power to impose their nefarious agenda and overruling the considered judgment of our elected representatives;  Hollingsworth is five justices willfully failing to vindicate the demonstrated will of the people for partisan purposes.  

The matter is complicated by the fact that the alignment of judges fluctuates and the reasoning does not yield readily discernible principles that consistently carry across individual holdings.  Consequently individual judges are accused of political partisanship and intellectual dishonesty.  Their motives are questioned.  

And of course the judges do have political leanings.  

We'd like court decisions to be consistent, principled, and, above all, intellectually honest.  The mere appearance of intellectual dishonesty should be avoided.   We don't want Supreme Court justices behaving like crazy uncles.   Yet, it's hard for them to escape that role.  Forming and holding Supreme Court coalitions together necessarily involves compromise.  And compromise is political in nature.  

As my partner, Bob Goodman has noted, many of the right decisions of the Supreme Court over the last two plus centuries are easy to pick apart.  This would include the grand daddy of cases that first established judicial review: Marbury v. Madison;  it includes cases like Brown v. Bd of Education, and Roe v. Wade.  The right decision is not always the best reasoned decision.  We can't always have our cake and eat it too.  Sometimes it's better to have the right result with a majority than the right reasoning with the minority.

Since one of our four cases comes from the University of Texas,  I leave you with the following kind and illuminating thought experiment by Sandy Levinson, professor at the University of Texas Law School commenting on the court's opinion in Windsor (not the U of T case).  
No doubt it was irresistible for Anthony Kennedy, the senior justice in the majority, to give himself Windsor, given his earlier opinions in Romer and Lawrence.  One consequence, of course, is that he had to keep the support of his four distinctly more liberal colleagues.  No doubt this contributed to the intellectual awkwardness of his opinion.  "Opinions of the Court" often have the characteristic of a camel (i.e., a horse designed by a committee). 
Already there is some of the same kind of nit-picking about the doctrinal problems with Windsor as there most certainly were with Romer.  I.e., Kennedy wants to avoid a straight-forward equality argument that would inevitably mean that state prohibitions of same sex marriage are unconstitutional (or, at the very least, that Section 2 is just as invalid as Section 3 inasmuch there can be no constitutionally legitimate reason for Texas, say, to refuse to recognize the validity of a marriage entered into in New York by people who then move to the Lone Star State).  At the same time he no doubt realized that he couldn’t get a single additional vote if he predicated the opinion on a “reserved powers of the state to define marriage” argument, though he certainly included some blather about traditional state sovereignty and marriage.  So we get the combo that leaves many people who take legal doctrine overly seriously confused (though I presume we all predict that some time in the future  the Court will go after then now-outlier states that are sticking to heterosexual marriage as the exclusive norm). 
But what if he had given the opinion to one of the moderate four?  Surely, she (or Breyer) would have emphasized equality and downplayed the federalism argument  (assuming it was even mentioned it at all).  So would we have had a 4-4-1 outcome, with Kennedy playing Powell’s role in Bakke, providing the crucial 5th vote on a theory rejected by all the rest of his colleagues?  This is, of course, basically what happened inParents Involved.  So the (altogether serious) question is whether we are better off with the “Opinion of the Court,” however intellectually problematic in some ways, than with an undoubtedly more intellectually satisfying and coherent opinion written by any of the other four members of the majority that would not, however, received the label "Opinion of the Court."
It's a tricky business this crafting of Supreme Court majorities in a divided country and on a divided court.   We should not be too quick to impugn the motives of the justices in these cases based on their expressed reasoning.  These are political cases in nature as well as legal.  It's okay to have competing political backgrounds and views.  We should, above all, keep our eyes on the bottom line.  I can live with the bottom line of these four cases.  

1 comment:

  1. I respect your opinion on these cases. I am in favor of a centrist point of view. Certain people, whom I can't name, are very, very liberal. I would say radical.
    I appreciate your reasoned arguments. It's a voice I like to hear.