DOMA: What Supremes Were Really Thinking

In the wake of yesterday’s decision (US v. Windsor) striking down the federal definition of marriage in the Defense of Marriage Act, legal experts are having a hard time making sense of what Justice Scalia called the “disappearing trail[s] of … legalistic argle-bargle” in the majority opinion.  Instead, we are left to guess what Justice Kennedy and his four colleagues were thinking when they wrote or joined the opinion.  Here’s our best guess at what those five Justices were really thinking when they struck down DOMA (quotes are from the majority opinion):

What the Supreme Court said yesterday:  “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

What the Supreme Court was really thinking:  We don’t agree with DOMA, so the Congress that enacted it – and President Clinton, who signed it – must have been mean and homophobic.

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Supreme Court:  “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”

Really thinking:  We’re sorry for going off on a tangent about federalism.  Please ignore the previous seven pages of this opinion.

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Supreme Court:  New York’s recognition of same-sex marriage “reflects … its evolving understanding of the meaning of equality.”

Really thinking:  Our understanding of the meaning of equality will continue to evolve until it requires us to mandate recognition of same-sex marriage in all 50 states.

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Supreme Court:  DOMA is an “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.”

Really thinking:  It is implausible to claim that there’s no precedent for DOMA’s definition of marriage, so we have to settle for calling the statute unusual.

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Supreme Court:  “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure [same-sex couples].”

Really thinking:  No discussion or analysis of the legitimate purposes put forth by DOMA’s supporters is necessary, because we already told you the supporters are mean and homophobic.

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Supreme Court:  “New York was responding to the initiative of those who sought a voice in shaping the destiny of their own times … Private, consensual sexual intimacy between two adult persons of the same sex … can form but one element in a personal bond that is more enduring.” (internal quotation marks omitted)

Really thinking:  We may not excel at legal reasoning but, if any publishers are listening, we would be great at writing self-help books.

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Supreme Court:  “The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”

Really thinking:  If you want to get fussy about precedent, maybe DOMA doesn’t really violate the Fifth Amendment's liberty interest.  But would you believe us if we told you that DOMA violates equal protection?

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Supreme Court:  “While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”

Really thinking:  Law students, don’t worry if you don’t understand this.  We don’t either.

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Supreme Court:  DOMA “humiliates tens of thousands of children now being raised by same-sex couples.”

Really thinking:  We’re telling you that kids look to federal law when determining whether to be embarrassed by their parents, and you are going to have to take our word for it because we’re the Supreme Court.

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Supreme Court: “Responsibilities, as well as rights, enhance the dignity and integrity of the person.”

Really thinking:  This rhetoric doesn’t add anything to our legal analysis, but it works great when you want kids to do their chores.

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Supreme Court:  “This opinion and its holding are confined to those lawful marriages [recognized by the states].”

Really thinking:  There would be no reason for us to say this if the logic of the opinion really limited its holding to lawful marriages.  We would be stating the obvious.

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Supreme Court:  “The power the Constitution grants [to Congress] it also restrains.”

Really thinking:  We don’t think this principle applies to the Supreme Court’s power, as we make clear with this DOMA decision.

Court Ends Profiling of Southern States

Statement of Committee for Justice president Curt Levey on today’s Supreme Court decision in Shelby County v. Holder concerning the Voting Rights Act:

The Committee for Justice applauds the Supreme Court’s decision ending the federal government’s irrational discrimination against southern states based on an outdated, 50 year old formula.  While there was a rational basis for targeting southern states (plus Alaska) when the preclearance formula was written 50 years ago, continuing to do so until today amounted to geographic profiling based on outdated stereotypes.  Decisions based on such irrational stereotypes are the essence of impermissible discrimination.

Although there is already plenty of howling about this decision, this is not a Court that is unsympathetic to voting rights. Just last week, the Supreme Court, by a 7-2 vote, struck down an Arizona law demanding proof of citizenship from people registering to vote.  Moreover, even today’s decision took a narrow, cautious approach.  The Justices did not strike down Section 5 of the Voting Rights Act, just the formula used to implement it. And the heart of the Act, Section 2, remains intact.  The overreaction to the decision simply underscores the courage it took for the Supreme Court to right this wrong and end geographic profiling.

End of the Road for Racial Preferences?

Statement of Committee for Justice president Curt Levey on today’s Supreme Court’s decision in Fisher v. University of Texas narrowing the use of race in admissions:

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases – Grutter and Gratz – in which the Supreme Court last addressed the use of race-based admissions in higher education.)

We applaud the Supreme Court’s decision today that race may not be used as a factor in admissions where “workable race-neutral alternatives would produce the educational benefits of diversity.”  The decision means a diminished role for race and an increased emphasis on socioeconomic disadvantage in admissions.

The Supreme Court remanded the case for consideration of whether its standard was met by the University of Texas at Austin.  But that does not subtract from the importance of the new standard, which universities will ignore at their own peril given the Court’s lopsided vote – the 7-1 decision was joined by all of the liberal Justices except for Ginsburg (Kagan was recused) – and the opinion’s clear language.

The Supreme Court made clear that when evaluating a university’s claim that race-neutral alternatives (such as Texas’s Top Ten Percent Plan Texas) are insufficient to produce a diverse student body, “the University receives no deference." The less rigorous standard that resulted from some interpretations of Grutter, where good faith consideration of race-neutral alternatives was sufficient and judicial deference to schools was generous, is gone.  As the Court said today:

"Consideration … is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race." (internal quote marks omitted)

Most importantly from a practical standpoint, today’s decision shifts the burden of proof to universities: "[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

Today’s decision servers as a final warning to universities that the Supreme Court is serious about racial preferences being defensible only when race-neutral alternatives fail.  The next time a university that has not rigorously met this standard comes before the Court, it can expect to lose.  In that sense, today’s decision is reminiscent of the Supreme Court’s 2009 decision in Northwest Austin Municipal Utility District v. Holder, in which the Court by a similar majority (8-1) warned Congress that it needed to amend the constitutionally dubious preclearance coverage formula of the Voting Rights Act.  After four years of Congress ignoring the warning, the Supreme Court is likely to strike the formula down later this week in Shelby County v. Holder.

While today’s decision will not eliminate race-based admissions in the short-term, it will very likely curtail it precisely because race-neutral plans – such as Texas’s Top Ten Percent and similar alternatives that focus on socioeconomic and educational disadvantage rather than race – have been so successful in achieving diverse student bodies. As Committee for Justice president Curt Levey said nine years ago in a law review article following the Grutter and Gratz decisions:

“[S]chools that have already achieved diversity through race-neutral means will have a very hard time defending a return to race-based policies. …  [B]y UT-Austin President Larry Faulkner's own report, black and Hispanic enrollment recovered fully and minority academic performance increased at his flagship college after race-neutral methods were substituted for race-based admissions following Hopwood v. Texas. Faulkner may soon have to explain to a court why he decided to reintroduce race despite this success.”

In the longer term, we are hopeful that today’s decision presages the end of the road for admission systems that explicitly take race into account.  The Fisher decision is just a step – albeit an important one – along that road. No one can say how fast the end will come or how much more litigation will be required but, after today, the handwriting is on the wall for the decline of race-based admissions.

Ironically, the Supreme Court’s decision to remand the case rather than strike down Texas’s admission system  may hasten the demise of race-based admissions. By ensuring that the lawsuit against the University of Texas continues to be litigated – possibly going back up to the Supreme Court at some point -- the decision keeps the issue of racial preferences in the public eye.  That cannot be good news for advocates of racial preferences, because all indications are that Americans overwhelmingly oppose such preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous opinion surveys.  For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).

Supreme Court’s Fragile Majority

Former New York Times Supreme Court reporter Linda Greenhouse speculated in a column this week that the Supreme Court’s conservative Justices are “in a hurry,” as evinced by the Court’s choice of cases – specifically, two involving affirmative action (Fisher v. Univ. of TX and Schuette v. Coalition to Defend Affirmative Action) and one religion (Greece v. Galloway).  The reason for the hurry, she believes, “can be found in the faint but resonant drumbeat of conservative concern about the stability of the Roberts Court’s narrow conservative majority.”

We share Greenhouse’s observation that

“Most uninformed commentary on the future of the Supreme Court … has focused on Justice Ruth Bader Ginsburg, who just passed her 80th birthday … obscur[ing] the fact that the conservative justices are growing old at exactly the same rate.”

In fact, Greenhouse cites Committee for Justice president Curt Levey’s March 2013 op-ed as an example of the “faint but resonant” concern about one of the five center-right Justices leaving the bench:

“Curt Levey, a prominent conservative commentator, took the occasion of Justice Scalia’s birthday to observe, in a Fox News op-ed, that it was entirely likely that at least one of the five conservative justices would leave the bench during the remainder of the Obama presidency. The result, he warned apocalyptically, was ‘a Warren Court redux,’ one that would erase ‘all the strides conservatives have made since the Reagan era in containing judicial activism.’”

We are pleased that Greenhouse is bringing attention to the fragility of the Roberts Court’s center-right majority; there’s nothing to be gained from conservatives lulling themselves into a false sense of security. And we don’t disagree with her characterization of the theme of Levey’s op-ed as “be afraid, be very afraid” (see here for ten good reasons to fear a liberal Supreme Court majority). However, we take issue with Greenhouse’s claim that

“[Levey’s] account of exactly what the court under Chief Justice Earl Warren can be blamed for left a bit to be desired. ‘The Warren Court brought us Roe v. Wade,’ he asserted. In fact, it was the Supreme Court under Chief Justice Warren E. Burger that issued the 1973 abortion decision, with a 7-to-2 majority opinion joined by three of President Richard M. Nixon’s four appointees.”

The problem with Greenhouse’s claim is that it omits context by quoting only a fragment of the following sentence in the Fox News op-ed:

“Named for but outlasting Chief Justice Earl Warren, the Warren Court brought us Roe v. Wade and most of the other judicial excesses decried by conservatives.” (emphasis added)

In other words, Levey explains that “Warren Court” is shorthand for an era of liberal judicial activism on the Supreme Court that OUTLASTED Chief Justice Warren (the length constraints of an op-ed prevented a more detailed explanation).  The era persisted because of Nixon’s inconsistent Supreme Court appointments, which included Warren Burger, arguably ending only after Justices Scalia and Thomas joined the Court.

We say “arguably” because progressives like Greenhouse would contend that it is inaccurate to call a Court with four Nixon appointees “liberal,” and some conservatives would say that the era of liberal activism on the Supreme Court has yet to end.  In fact, many conservatives will be saying that loudly by month’s end if the Court’s decision on the Defense of Marriage Act goes the way we expect.

Should the Best Justices Publicly Praise the Worst?

On television, Justices Thomas and Scalia “lavishly” praise colleagues whom Curt Levey suggests are nightmarish. My latest article explains and documents why oral public accolades by the best justices for the worst are not only unwarranted but refuted by their own written opinions.

 

Repeatedly in writing, Justices Thomas and Scalia have questioned the integrity of their colleagues; and accused them of arrogance, lawlessness, license, illegitimate abuse of power, basing decisions on no more than their own personal values, contempt for the Constitution, sowing confusion rather than providing clarity, hypocritically pretending to defend the weak against the powerful while actually favoring the powerful at the expense of the weak, protecting inconsequential expression while disdaining the heart of the first amendment, poisonous and pernicious racism and sexism, belief in black inferiority, jeopardizing the lives of good innocent people in order to save the lives of the most vicious and depraved, placing the welfare of terrorists above the lives of soldiers combatting them, mandating infanticide (the barbaric killing of human children), and numerous other sins.

 

These are very strange criteria for “good … honest … fabulous” justices. 

 

If it is unrealistic to expect Thomas and Scalia to criticize sharply in public those with whom they must work, cordial interpersonal working relationships surely do not require going to the opposite extreme. Even if it would be inappropriate to be publicly negative about other justices, there is no reason to give lay people the impression that rabid leftist judicial ideologues are fantastic rather than destructive. Facing the grave threat of losing even the current sometime constitutionalist Supreme Court majority, this can only lend legitimacy to and encourage the judicial arrogance, dishonesty and abuse of power against which Scalia and Thomas repeatedly have protested in writing.

If total calamity is to be averted, conservatives must effectively educate the public about dangers posed by extremist liberal judicial activism. Robert Bork was defeated by vicious lies. Leftist fanatics should be defeated by the little-known media-buried truth. 

My article provides an easily understood review of the Scalia-Thomas catalog of shocking truths.

See SSRN or here (with links), and here (without links).
 

 

IRS: Why Obama Should Read the Papers

Last summer, CFJ president Curt Levey wrote about the IRS’s targeting of Tea Party groups – and, more generally, about the Nixonian attempts by the Obama Administration and its allies to silence conservative critics – after Senate GOP Leader Mitch McConnell spoke out about the problem. In an op-ed this week at Breitbart.com, Levey looks back at last summer’s articles and his interview with Sen. McConnell as a reminder that the IRS scandal and related wrongdoing could not have come as a surprise to anyone inside or outside the White House who was following the news.

Why Obama Wants to Pack the DC Circuit

Statement of Committee for Justice president Curt Levey on President Obama’s announcement today of three nominations to the DC Circuit:

President Obama’s high-profile announcement today of three DC Circuit nominees – left-wing law professor Cornelia Pillard, U.S. District Court Judge Robert Wilkins and appellate attorney Patricia Ann Millett – is intended to provoke a fight with Senate Republicans rather than to address any need for additional judges on the Circuit.  A battle over these nominees is inevitable, both because the DC Circuit already has more judges than it needs and because nominees to this Circuit – the most powerful court in the nation after the Supreme Court – are subject to a higher level of scrutiny. 

Senate Democrats raised the already high bar to confirmation of DC Circuit nominees when they blocked two stellar Bush nominees to the Circuit, Miguel Estrada and Peter Keisler, and kept President Bush’s other four nominees to the Circuit waiting between one and three years.  Obama appeared to concede as much today when he said “Democrats weren’t completely blameless when I was in the Senate.” Left unsaid was the fact that there would not be three vacancies on the DC Circuit now if not for the Democrats’ obstruction of Estrada and Keisler.

After more than four years of relative disinterest in lower court nominees – Obama has not lobbied for any of them nor appeared alongside them before today – why is the President suddenly so concerned about the DC Circuit?  While we cannot read Obama’s mind, we can rule out any possibility that he is genuinely worried that the DC Circuit doesn’t have enough judges.  Despite there being two DC Circuit vacancies since he took office, Obama waited 20 months to make his first nomination to the Circuit and three and a half years to make his second.

That’s because Obama was well aware that the DC Circuit has more than enough judges.  The Circuit’s eight active judges and six senior judges are the equivalent of eleven full-time judges, which is precisely the capacity specified by the 2008 statute that reduced the court’s judges from 12 to 11 due to a low workload. Five years later, the DC Circuit’s workload remains the lowest of any of the 12 circuit courts.

President Obama’s newfound concern about DC Circuit vacancies is even harder to explain in light of the glacial pace of his judicial nominations generally, including to courts that badly need additional judges.  He has made nominations to fill only one-quarter of the 32 vacancies classified as “judicial emergencies” (none of the 32 are on the DC Circuit).  If he has any genuine concern about judicial vacancies, we suggest Obama support Sen. Grassley’s bill to shift two of the unfilled DC Circuit seats to the overworked Second and Eleventh Circuits.

We suspect the President’s sudden interest in the DC Circuit is motivated by several political factors. One, Obama is undoubtedly unhappy with several DC Circuit decisions – especially the one that found his recess appointments to the NLRB to be unconstitutional – and wants to shift the Circuit to the left by adding liberal judges to it.  Two, by provoking a filibuster showdown with Senate Republicans, Obama is providing Majority Leader Harry Reid with an excuse to use the nuclear option to permanently eliminate the minority’s right to filibuster nominees.  Three, President Obama may be making a big deal about DC Circuit nominees largely for show, hoping to blunt criticism from his allies over the glacial pace of judicial nominations.

Whatever Obama’s motivation, Senate Republicans should hold firm in the fight the President has provoked with today’s nominations.  Short of Supreme Court review, the best hope of blocking Obama’s attempts to bypass Congress with overreaching executive orders and regulations lies in the DC Circuit, which hears many of the applicable cases.  President Obama should not be allowed to tilt the Circuit, which currently has four Republican and four Democratic appointees, to the left.  

Any attempt by Obama and Reid to use this fight as an excuse for crippling the minority’s rights in the Senate must also be fiercely resisted.  If the minority’s right to filibuster nominees is lost now, it won’t be available if and when a center-right vacancy on the Supreme Court gives President Obama a chance to install a liberal majority and push the Court sharply to the left.

DNA Decision Sets Dangerous Precedent

Statement of Committee for Justice President Curt Levey on today’s Supreme Court decision concerning collection of DNA samples:

An alarming precedent was set today when the U.S. Supreme Court decided 5-4 in Maryland v. King that the police can take DNA samples from those arrested for, but not yet convicted, of a serious offense. 

In a devastating dissent joined by three of his colleagues, Justice Scalia explained why the majority’s decision is a big step towards a dangerous loss of liberty and privacy.  “Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote, reminding us that “Nearly one-third of Americans will be arrested for some offense by age 23.”

While the Maryland statute at issue in this case does provide some safeguards, government guarantees of privacy and confidentiality are far from watertight. Consider the recent problems at the IRS, which include the agency leaking nine confidential applications of conservative non-profits to ProPublica, and leaking the tax return of the National Organization for Marriage – a pro-traditional marriage organization – to a gay rights group.

We suggest that instead of inventing privacy rights – concerning abortion and homosexuality for example – that require a long stretch from the text of the Constitution, the Supreme Court should focus on protecting the privacy rights that are clearly spelled out in the Fourth Amendment. In his dissent, Justice Scalia points out that “The Fourth Amendment lists ‘persons’ first among the entities protected against unreasonable searches and seizures.”

The majority tries to justify its decision by analogizing Maryland’s collection of DNA to the fingerprinting of arrestees for identification purposes.  However, Justice Scalia destroys that analogy by carefully demonstrating that Maryland is using DNA not to identify arrestees but to accuse them of additional crimes.  We would add that the majority’s contention that there is little difference in intrusiveness between fingerprinting and DNA collection brushes aside the fact that when the government possesses your DNA, it possesses the detailed blueprints for your entire body.

No doubt, some of CFJ’s supporters cheered today’s decision because it advances the important cause of crime solving. We are very sympathetic to that cause, but it must be pursued in a manner that complies with the Constitution’s vital limits on the power of the government.  Too often, conservatives forget that big government poses a threat to our liberties not only through out-of-control regulation, taxing and spending, but also through over-zealous crime fighting.

As Justice Scalia concedes,

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. …  Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver's license, or attends a public school.”

We echo Justice Scalia’s points here and note that the noble cause of solving crimes must occupy a lower place in constitutional analysis because, unlike the right to be free from unreasonable searches and seizures, it is not explicitly guaranteed by the Constitution.  That could be changed by amending the Constitution, but there is little support for such an amendment.

Finally, Justice Scalia reminds us of the irony of today’s decision:

 “[T]he ironic result of the Court's error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment's protections ought to be most jealously guarded: people who are innocent of the State's accusations.”