If Tuesday’s action at the Supreme Court pointed to a Court looking for a procedural escape hatch from a case that appeared to have given several of the justices a severe case of buyer’s remorse, Wednesday’s oral argument in United States v. Windsor strongly suggested that at least five justices were looking to confront squarely questions of federalism and equal protection rights of same-sex couples. It is still possible that, as in the California Proposition 8 case (Hollingsworth v. Perry), the Court might pass on the substantive questions and instead dismiss based on the argument that the petitioners lack standing to sue, meaning that they have not suffered sufficiently direct harm to justify allowing them to bring their case. But there’s a crucial difference between the two cases. If the petitioners in Hollingsworth, backers of Proposition 8, are deemed to lack standing, then the Ninth Circuit’s ruling would be vacated, and the district court’s ruling in favor of the same-sex couples challenging Proposition 8 would remain. Such a ruling would have no impact outside California, however. In contrast, denying standing to the Obama administration and the House Republican leaders currently litigating on behalf of the Defense of Marriage Act (DOMA) would leave in place the Second Circuit’s ruling in favor of Edith Windsor. This would mean that DOMA would be invalid in states within the Second Circuit (New York, Connecticut, and Vermont), but valid everywhere else, thereby compelling the federal government to maintain two separate regimes governing federal benefits accruing to married couples. So while I wouldn’t be surprised to see the Court punt the Hollingsworth case, I’d be very surprised to see it act similarly in Windsor.
The emerging consensus, based on today’s proceedings, seems to be that DOMA is in jeopardy of being invalidated on federalism grounds. That is, DOMA represents federal intrusion into a policy domain, marriage, that falls within the sphere of state authority. Such an argument would appeal to Justice Kennedy, as someone who has written repeatedly in defense of a strong state role within a federalist system, and it might appeal to one of the conservatives who has not displayed overt hostility to LGBT individuals in his questioning. But Kennedy is also the author of the majority opinion in Lawrence v. Texas, in which the Court invalidated state anti-sodomy laws, and it is possible that one of the liberal justices could persuade him that his eloquent language in that opinion in favor of sexual autonomy and human dignity compels a broader ruling in favor of marriage equality. (ironically, it was Scalia whose dissent in Lawrence predicted that the inevitable consequence of invalidating anti-sodomy laws would be recognition of same-sex marriage.) So we’ve got four justices (Breyer, Ginsburg, Kagan, and Sotomayor) who appear willing to strike down DOMA on equal protection grounds; the question, as is so often the case, is what Kennedy will do.
The dilemma for Kennedy stems from the fact that the two legal grounds for invalidating DOMA are mutually exclusive. If you believe that marriage is a fundamental right, and that denying this right to same-sex couples represents an equal protection violation, then you can’t then decide that states should remained empowered to determine who may exercise that right. Conversely, if your objection to DOMA lies in its intrusion on state prerogatives, then you have to accept the possibility that states will decline to extend marriage equality to same-sex couples. The Obama administration has tried very hard to finesse this tension at the heart of the same-sex marriage cases this term, but its proposed solution–require states with civil unions to extend marriage rights to same-sex couples, while requiring nothing of states with constitutional or statutory bans on gay marriage–required little support from conservatives or liberals on the Court. So how the Court resolves these disputes will hinge on whether Kennedy values his federalism more than he values his Lawrence opinion. My hunch (for recreational purposes only) is that he does not, for the same reason that he subordinated state autonomy concerns when writing Lawrence itself.
Earlier today, the Pew Research Center released polling results showing that few Republicans perceive the Supreme Court as conservative, even though a majority of the justices are Republican-appointed and, according to a leading estimation method (Martin-Quinn scores), the Court is more conservative than it has been at any point since the early New Deal. More specifically, 45 percent of conservative Republicans and 29 percent of moderate or liberal Republicans considered the Court to be liberal, while 39 percent of conservatives and 45 percent of non-conservatives labeled the Court “middle-of-the-road.” For comparison purposes, liberal Democrats viewed the Court as either conservative (48 percent) or middle-of-the-road (31 percent); for moderate or conservative Democrats, the respective percentages were 26 and 45.
It is tempting to attribute these findings to increasing radicalization within the Republican Party. How else might we explain how conservatives can get a steady stream of victories from the current Supreme Court yet fail to recognize the body delivering these victories as conservative? There is an alternative explanation, though. The Martin-Quinn scores provide aggregate data on the Court’s decision making, but when ordinary people (who are not as inclined as political elites to think ideologically about politics, and thus might not fully understand the content of ideological labels) are asked about the Court’s outlook, they are likely to base their assessment on whichever cases spring to mind. Those cases are likely to be the ones receiving substantial attention from political activists and/or trusted media outlets. If conservatives are primed to assess the Court not in terms of its behavior across a wide range of cases, or its ideological trend across time, but in response to highly publicized socially liberal rulings, then they will be more prone to labeling the Court liberal or moderate.
Liberals, in contrast, would not treat these rulings as evidence of a moderate or liberal Court because they have not been primed to treat these victories as typical, as conservative activists have done when attacking the Court. Rather, liberal commentators and activists more commonly stress either the Court’s conservative direction or high-profile rulings favoring conservative interests. So liberals receive cues from trusted liberal sources that are consistent with the pattern supported by the Martin-Quinn estimates, while conservatives receive cues from trusted conservative sources that overestimate the frequency of anomalous liberal rulings. Note that this account is not at odds with a narrative that stresses the national Republican Party’s rightward movement; indeed, the two accounts can be reconciled by noting the link between growing conservatism within the party, the cues sent by activists and sympathetic media outlets, and the receptiveness of rank-and-file conservatives to such cues. Given the issues facing the Court for the rest of this term, it will be interesting to see whether perceptions of the Court shift appreciably in response to its rulings on matters like same-sex marriage, voting rights, and affirmative action.
Attorney, gay-rights advocate and former Clinton advisor Richard Socarides, in his recent post at The New Yorker, insightfully explores how issues surrounding standing to sue might enable the Supreme Court to avoid having to rule on whether the Constitution requires government recognition of same-sex marriages. Put simply, mere offense does not provide sufficient grounds for one to challenge the constitutionality of a policy; one must demonstrate that the policy has harmed them in some tangible way that can be remedied by a favorable judicial ruling. Standing acts like the beefy guy with the headset and the clipboard outside an exclusive dance club; if you can’t demonstrate that you deserve to be inside, your night ends abruptly.
What makes standing complicated here is that the losing parties in the lower courts, California and the Obama administration, side with the marriage-equality advocates and have declined to defend the enactments being attacked (Proposition 8 and the Defense of Marriage Act (DOMA), respectively). To avoid a scenario in which laws are invalidated by default, which would have broad ramifications and should frighten anyone who can envision a similar fate befalling a favored statute (for progressives, think about a Republican president whose administration refused to defend the Affordable Care Act in court), other actors have been allowed to defend the policies in court. In the California litigation, Hollingsworth v. Perry, supporters of Proposition 8 have been allowed to represent the challenged ballot initiative; in the DOMA litigation, Windsor v. U.S., a group of Republican leaders in the House of Representatives (the Bipartisan Legal Advisory Group, or BLAG) has been defending the statute.
But can either party persuasively claim to have standing? In the California litigation, the trial judge, Vaughn Walker, found that the witnesses speaking in favor of Proposition 8 were unable to advance any plausible way in which allowing gay couples to wed harmed heterosexuals. This determination would seem to offer the Supreme Court an opportunity to dismiss Hollingsworth on standing grounds. In Windsor, the question is whether a group of legislators has standing to defend an act of Congress, and more specifically, to defend federal law in response to the executive branch’s unwillingness to do so. Law professor Matthew Hall argues that precedent rejects both of these claims. Congress, according to Hall, lacks power to assert the national government’s interest in litigation unless authorized to do so by statute, and no statutory authorization to defend DOMA, or federal statutes in general, exists. And legislative committees may not assert the interests of the House in litigation unless the House explicitly authorizes it. (Earlier this year, the House passed a resolution to provide this authorization, but Hall argues that this fact is irrelevant because at the time BLAG petitioned the Court, it did not have authorization.) Needless to say, the legislators will be unable to assert any personal injury from the repeal of DOMA. So the Court in Windsor, as in Hollingsworth, has an escape hatch should it desire to use it.
For proponents of marriage equality, a victory resulting from a denial of standing would reinforce the Hollingsworth trial court’s rejection of the idea that expanding marriage rights to same-sex couples would damage either the institution of marriage or any concrete interest of heterosexuals. But if recent polls are any guide, this idea is already increasingly being rejected by the American people, and even if the prospects for legislative reversal of DOMA are slim in this sclerotic Congress, the trend toward marriage equality at the state level might continue.
Winning by default has its drawbacks, though. In the Proposition 8 case, thousands of California couples would have their right to marry restored, but there would be no effect outside California. In Windsor, the problem is that DOMA would become unconstitutional in the Third Circuit but nowhere else, thereby producing a logistical nightmare in which the federal government would have to develop two sets of laws governing a broad array of marriage-related benefits, one for the Third Circuit and one for everyone else. Perhaps most important, like winning a game by forfeit because the opposition used an ineligible player, a victory through denial of standing would deny gay rights advocates the opportunity to see their arguments beat their opposition’s arguments, with the whole world watching.
Ultimately, I would be surprised to see the Court go the standing route. Denying standing to Proposition 8 backers and BLAG would amount to holding that no party could ever establish eligibility to defend traditional marriage in court, and I don’t think that the Court is looking to head in that direction. Moreover, future challenges to DOMA are unlikely to feature fact patterns or background political conditions differing appreciably from the status quo; as a result, a future Court would be confronting the Windsor scenario all over again. If Justice Kennedy is concerned that a ruling against DOMA and Proposition would be premature and might result in backlash, he can take his cues from the growing numbers of conservatives who have endorsed marriage equality. (Justice Ginsburg might feel similarly, based on lessons drawn from the reaction to Roe v. Wade.) And law professor Michael Klarman, who has written at length about the role Brown v. Board of Education played in polarizing white Southern public opinion and generating racial backlash, rejects the idea that a Supreme Court ruling in favor of marriage equality would similarly cause short-term harm to the gay-rights cause. If there is minimal risk of backlash, there is minimal benefit to passing on the opportunity to decide a case where you’ve got the votes on your side. So while the escape hatch remains available, I expect that if there is a majority on the Court that favors marriage equality, it will leave that route unused.
Law professor David Fontana, in a blog post titled “The Laboratory of Judicial Nominations,” argues for progressives frustrated by continuing Republican obstruction of judicial nominees to direct more attention to placing progressives on state courts. The advantages to this strategy, Fontana claims, are threefold:
1. Republicans would have fewer opportunities to obstruct when they’re in the minority.
2. State courts not only decide far more cases than do their federal counterparts, but also frequently tackle issues of great legal and political interest, and sometimes they have provided significant victories for progressives (marriage equality, campaign finance restrictions).
3. Progressive state judges who “articulate progressive positions in a convincing fashion” can make themselves more compelling candidates for service on the federal bench by demonstrating that their jurisprudential approach falls within the legal mainstream. Fontana cites several examples of governors seeking to elevate the profile of young legal talent by nominating them to their states’ high courts: Jerry’s Brown nomination of Goodwin Liu in California, Tim Pawlenty’s nomination of David Stras in Minnesota, and Andrew Cuomo’s nomination of Jenny Rivera.
I agree with Fontana’s admonition not to ignore state courts, given the role they play in policy making and the consequences of ceding the field to conservatives. And developing a deeper bench can produce all kinds of benefits. But I’m not sure I share Fontana’s view that serving on state supreme courts with conservatives and earning their respect will translate into easier confirmation proceedings should they be nominated to federal appellate positions. After all, Richard Taranto still waited about
18 15 months to be confirmed, despite having clerked for conservative judges (Sandra Day O’Connor and Robert Bork) and facing no conservative opposition in the Senate. A number of nominees have been filibustered ad nauseum despite the support of Republican home-state senators. And Goodwin Liu derived no benefit from the conservative law professors who testified to his fitness to serve on the Ninth Circuit Court of Appeals. If conservative interest groups demand that Republican senators obstruct judicial nominees, then those nominees get obstructed, irrespective of other considerations. In the end, there’s no substitute for fixing a broken Senate.
I’m intrigued by Arizona State University’s plans to open its own law firm. More accurately, I have different takes depending on which of my moods is prevailing at a given point.
The Optimist appreciates the attempt to solve two problems at once. The first is the number of recent law school graduates carrying sizable debt and having trouble finding work in a tough job market. The second is the number of people who would benefit from legal services yet are unable to afford them. Bringing the two groups together, through programs featuring newly minted lawyers supervised by more seasoned practitioners, would provide valuable hands-on experience while at the same time making access to legal assistance for underserved populations.
It is possible that the younger participants will use programs such as ASU’s as a springboard to more lucrative employment, just as many Teach for America alumni go on to pursue professional options more lucrative than teaching. But that possibility doesn’t strike me as a problem, as even short-term participation could provide considerable benefits for all involved. (Indeed, the pilot program at Univ. of California Hastings College of the Law has been dubbed Lawyers for America.) Future corporate lawyers might derive some benefit from exposure to a different segment of the legal world, with clients presenting issues that corporate lawyers don’t typically encounter and compelling attorneys to view legal disputes through different lenses.
The Skeptic wonders whether rates will be set at a level that allows markets to clear. The ASU program plans to charge its clients half of the region’s going hourly rate of $250. Far be it from me to badmouth 50% off anything, but how many people are likely to decide that they can afford legal services at $125/hr., but not at $250? If the number is small, then underserved communities will remain underserved.
The Cynic sees a program that will help the school boost its placement rates, thereby boosting its position in the U.S. News rankings. Schools with similar programs might also be looking to counter the narrative of a tight job market that has contributed to the decline in the number of applicants to law school. Increases in tuition revenue, from students reassured that some legal work will be available upon graduation, might very well exceed the costs of running these programs.
So which of these accounts sounds most convincing, or is there some merit to each?