Anthony Kennedy

Sorry Mr. Franklin, We Couldn’t

I was going to provide an analysis of both of the Supreme Court decisions today related to gay marriage, but instead I will focus on Hollingsworth v. Perry, which was concerned with California’s Prop 8. But first a couple of thoughts about US v. Windsor, the DOMA case. The immediate short-term impact of the case is somewhat limited in scope. Federal benefits will be conferred upon same-sex couples who live in states that recognize their partnership as marriage. The long-term impact, however, is much starker, as will be explained in a moment.

Both Justices Alito and Scalia provide blistering dissents, and they should be read in full. They disagree on a technical though not insignificant point about the standing of the Bipartisan Legal Advisory Group, or BLAG (and for the record, I tend to side with Alito). First of all, Scalia properly notes that, despite the rhetoric in Kennedy’s opinion, this was not a federalism case, or at least the case was not decided on federalism grounds. In fact, contrary to exhortations of some so-called libertarians on twitter, this case has the ultimate effect of further eroding states’ rights regarding same-sex marriage. Had this case been decided on federalism (10th amendment) grounds, then the outcome would have been possibly justifiable. But the majority’s reliance on 5th and 14th amendment concerns – effectively relying on the absurd legal doctrine of substantive due process – runs completely counter to the federalism argument, and paves the way for future challenges to state laws that prohibit same-sex marriage.

Justice Scalia recognizes this farce for what it is, and reminds the public of the exchange between these two very same Justices ten years ago to the date in Lawrence v. Texas. Then Justice Kennedy assured us all that striking down anti-sodomy laws would not eventually be used as a rationale for upending traditional marriage, and Scalia scoffed at him in the dissent. Well, guess who’s looking prophetic now. Even left-wing pundit David Corn (gleefully, this case) acknowledges Scalia’s prescience. Kennedy, backed up by the obtuse Chief Justice, assures us that nothing in this decision interferes with state decision-making on marriage. Once again Scalia scoffs, and, sadly, at some point in the future he will no doubt be proven right.

As for the Prop 8 case: my what a tangled web. I have been defending Chief Justice Roberts’s decision (joined, I may remind you, by Antonin Scalia along with three of the Court’s leftists) on the grounds that had the case been decided on the merits, it is quite possible that the same 5-4 majority in Windsor would have held Prop 8 to be unconstitutional, and this would have been the Roe v. Wade of gay marriage. Now, I’m not so sure.

Admittedly, I am somewhat conflicted on the ruling on standing. The majority concludes that the petitioners did not have standing because they were not official delegates of the state, and they did not experience any harm due to the appellate court’s ruling decreeing Prop 8 to be unconstitutional. From a  certain point of view, this is a perfectly acceptable legal holding. Scalia made a very good case in his Windsor dissent for a blanket denial of standing to all non-state petitioners in such cases. Scalia is acting fairly consistently, thus that explains why he voted with the majority here.

That said, the Chief Justice’s opinion is very worrisome, and not just from the standpoint of traditional marriage. As Justice Kennedy (!) explained in his dissent (joined in totality by Thomas, Alito, and Sotomayor), the petitioners here do, in effect, represent the state. In fact the state constitution all but says that when it comes to ballot initiatives, ordinary citizens are agents of the state. I would go a step further and suggest that Roberts offers up a very constrained view of who the state is. According to his logic, the “state” is nothing more than the Chief Executive and the bureaucracy. From a technical legal standpoint this is fine, but the very point of a ballot initiative is to bypass state officials whom the citizenry at large have decided are not acting in their best interests. I have written before about my concerns (to put it mildly) regarding ballot initiatives, but it is illogical to deny that the ballot initiative process changes the normal dynamics of who has legal standing.

The Chief suggests on page 8 of his opinion that once the proposition was approved and enacted, that petitioners no longer had a role in enactment. But if the executive branch of the government refuses to defend the amendment or statute, that leaves the citizens with no legal recourse.

The petitioners relied on the case of Karcher v. May to argue that they indeed had standing, but Chief Roberts denied that the the ruling there was applicable.

Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as  Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court.

But in a case revolving around a ballot initiative, haven’t the voters themselves become, in essence, the equivalent of legislators?

Roberts’s reticence to grant standing in this case is understandable, and I can see why Scalia would join the majority. In his Windsor defense, Scalia admirably rails against the idea of an omnipotent judiciary that decrees on all constitutional issues just because it wants to. An overly broad interpretation of who has standing empowers the judiciary. But I think this is a rare case in which judicial deference actually damages the workings of the republican process. For good or ill, Californians have favored a much more directly democratic system, and the Court’s majority fails to factor that into its decision-making. By denying standing to the petitioners, the Court has said that citizens have no real redress should state executives defy their expressed wishes.

Which leads me back to my uncertainty over the rationale over the votes cast in these two cases. I’m in the odd position where I disagree with the person who I think has the cleaner motive, but agree with the person whose motives are perhaps suspect. I have no doubt that if this case had been decided on the merits, Chief Justice Roberts would have voted to uphold Prop 8, while I’m not so certain about Kennedy.  Scalia acted consistently with his overall principles, as did Alito (who would have granted standing to BLAG). Thomas offered no opinion in either case, but I suspect his reasoning would be similar to that of Alito, and so he acted consistently on the standing question as did, quite frankly, Sonia Sotomayor. As for the Court’s three other left-wingers – well, they did what they always did and just voted for the right (in their minds) outcome, reasoning be damned.

No matter the rationale for Roberts’s decision, it has ill portents. If Roberts acted strategically, then he abdicated his responsibility to be an impartial arbiter of the law. If he acted earnestly, well, he was simply wrong. More importantly, we’re stuck in a situation where the actual wishes of a democratic majority are trivial concerns compared to the desires of a handful of unelected judges. No matter how they voted today, this is simply untenable, and there is no end to this judicial tyranny in sight.

 

The Majority Opinion that Became a Dissent

If you had told me before the day started that John Roberts and Anthony Kennedy would have penned differing opinions on the Obamacare case, and that I’d be siding with the latter’s opinion, I would have said that you were nuts. Alas, it appears that John Roberts is the new Anthony Kennedy.

Ed Whelan has speculated that Chief Justice Roberts changed his vote at the last minute, and therefore the dissenting opinion was originally the majority opinion. He has a follow-up post that posits another theory supporting that notion, which also explains how that could be logistically possible. Having now fully digested the dissenting opinion, I am just about 99 percent certain that John Roberts did indeed change his vote, and that the dissenting opinion was the majority opinion until the Chief Justice changed his mind.

Frankly, the dissent just doesn’t read like a dissent at all. As Whelan points out, the dissenting opinion repeatedly alludes to Justice Ginsburg’s opinion as the dissent. In fact, the dissenters barely alludes to the Chief Justice’s opinion at all until the very end. The final couple of pages are a scathing attack on the majority’s opinion, heretofore unmentioned. It certainly seems like the dissenting Justices felt jilted by the Chief Justice, thus the unusually harsh rhetoric of the final few paragraphs of the dissent. Another sign that the dissenters were in the majority comes on the second page: Continue reading

The Supreme Court, Abortion Jurisprudence, and Pro-Life Politics

Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court, is already being painted as a moderate by the media and some political interest groups. This portrayal of Kagan is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that delineate her actual personal views on judicial philosophy, thus, complicating the venture of placing her on an ideological spectrum. 

Despite this hermeneutical difficulty, allegedly confident political portraits have been made with the details that we do know about Elena Kagan. The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration. Kagan in the memo counseled President Clinton to support an amendment, authored by Senator Tom Daschle (D-SD), to Republican-sponsored legislation to ban partial-birth abortion that would include an exception for the “health” of the pregnant women in a ban—so broad an exception that it could be easily employed as a loophole that would prevent few, if any, partial-birth abortion procedures.

President Clinton and his advisors (in this case, Kagan) anticipated that the Daschle amendment would not secure enough votes to pass, but White House support could provide enough political cover for Democratic lawmakers who could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman. In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was successfully sent to President Clinton who consequently vetoed it.  Kagan’s advice to the President was successful and held up the passage of a partial-birth abortion ban for six years.

Douglas Johnson, the legislative director of the National Right to Life, before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997 said:

“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which therefore is inoffensive to the pro-abortion lobby.”

In other words, a better reading of the facts is not that Kagan is “in the middle” on abortion, but rather she was advising President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual pro-life measure. Kagan may very well be a “legal progressive” as was recently claimed from the White House defending the nominee from the political left suspicious of her liberal credentials. Continue reading

The Red Mass and Cardinal DiNardos Pro-Life Homily

Daniel Cardinal DiNardo, the Archbishop of Galveston-Houston, was the chief celebrant at the annual Red Mass Cardinal DiNardo Sotomayoryesterday at the Cathedral of Saint Matthew the Apostle.

The Red Mass is celebrated annually at the Washington, D.C. Cathedral and hosted by the John Carroll Society, a group of Washington area legal professionals.  The Mass is normally for for judges, attorneys, law school professors, students, and government officials.  The Mass requests guidance from the Holy Ghost for all who seek justice, and offers the opportunity to reflect on what Catholics believe is the God-given power and responsibility of all in the legal profession.

The Red Mass is so-called from the red vestments traditionally worn in symbolism of the tongues of fire that descended on the Apostles.  The most significant difference between the Red Mass and a traditional Mass is that the focuses of prayer and blessings concentrate on the leadership roles of those present.  Guidance from the Holy Ghost is asked to be bestowed on the congregants. Other blessings that are commonly requested to prevail in the minds, offices, and court rooms are Divine strength, wisdom, truth, and justice.

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