Now that the Supreme Court term has ended, there’s a natural inclination to try to characterize it as a whole, or at least to view the results of the past few months as a harbinger of important future trends. This year, the consensus view appears to be that the court is unexpectedly leaning to the left or, at a minimum, that the court proved itself to be wildly unpredictable this term.
Count me a skeptic.
To be sure, in the two most important cases of the term (health care and same-sex marriage), the conservative side of the court did not prevail. And Walter is certainly correct that there has rarely been a term in recent decades in which the solicitor general of a Democratic administration has been so successful and so influential. (I’m hardly an objective observer on this score, but I think such success is in large measure a function of the exemplary work of the attorneys in the solicitor general’s office and their fellow Department of Justice attorneys—in particular, the extraordinary briefing and argument in the Affordable Care Act and marriage cases by Don Verrilli.)
Two other things about this term are also noteworthy. As Tom Goldstein at SCOTUSblog has pointed out, the four justices on the left side of the court stuck together in a remarkable percentage of cases. Second, and relatedly, the three most conservative justices wrote a staggering number of separate dissenting and concurring opinions, in many of which they set forth views to the right of the court majority (see Eric Posner in Slate). Those three Justices wrote almost two-thirds of the 112 such opinions this term, and Justice Clarence Thomas alone wrote 30 of them!
(Thomas’ insistence on sticking to his iconoclastic views, and on following his jurisprudential “priors” wherever they may lead him, regardless of court precedents and of substantive outcomes—his refusal, as it were, to be a team player or to see himself as part of a multimember institution that acts collectively over time, even though it means he has increasingly little influence on the court’s doctrine and is almost never assigned a majority opinion in important constitutional cases—is a fascinating and rich topic in and of itself, worthy of a separate Breakfast Table, or at least a Slate-sponsored after-dinner drink.)
Even so, none of these facts about the October 2014 term were actually very surprising to close observers of the Supreme Court. Nor do they reflect any fundamental shift to the left, or any meaningful trend, for that matter. Instead, they were almost certainly a function of the particular, somewhat idiosyncratic mix of cases that the court happened to consider this term. The vast majority of the outcomes were predictable in light of the questions presented; I’d wager that at least 95 percent of the justices’ votes conformed to expectations.
Having said that, I’ll concede that there were a few important instances this term in which the court (or at least one justice) did something that genuinely surprised me and many of my fellow court-watchers. Indeed, I can’t recall a recent term’s end when so many of us were left scratching our heads or arching our eyebrows quite as often as we have these past few weeks.
Accordingly, as our Breakfast Table approaches the finish line (the hidden prize at the bottom of the cereal box?), I thought it might be worthwhile to identify some of the aspects of the term that were least predictable or that upended common expectations.
Here, then, is a small sampling of the outcomes, votes, and developments that most surprised me and the court specialists who were kind enough to respond to an informal inquiry of mine. I apologize in advance for its length. I should have split it up into several bite-size posts—Spartan, European-style breakfasts, as it were—but the flurry of opinions over the past few days made it hard to keep up with the tradition of rapid-fire Breakfast Table posts. And so I offer instead one of those grotesque, American, all-you-can-eat buffet brunches, complete with endless mimosas, to send us off into a holiday weekend stupor.
The Unexpected Outcomes
The court did not issue all that many unexpected decisions. Two outcomes, however, did take virtually everyone I know by surprise:
In Williams-Yulee, the case involving limits on campaign solicitations by candidates for judicial office, Chief Justice John Roberts broke ranks with his fellow campaign finance–regulation skeptics. In retrospect, his vote wasn’t completely out of the blue; but it wasn’t widely expected, either.
And in the Fair Housing Act case, most observers assumed that Justice Anthony Kennedy would side with the court’s conservatives and hold that the statute does not recognize disparate impact claims. But he didn’t. Instead, he joined a 5–4 decision affirming the existence of at least some disparate impact claims. After oral argument, some of us thought there was a long-shot chance of such a result, but most of us thought the possible fifth vote would come from Justice Antonin Scalia, who basically conceded at oral argument that Congress’ 1988 amendments to the act made it impossible to read the statute to preclude disparate impact claims. “You look at the whole law and you say, what makes sense? And if you read the [1968 and 1988] provisions together, it seems to be an acknowledgement that there is such a thing as disparate impact. … I find it hard to read those two together in any other way than there is such a thing as disparate impact.” Hard, but apparently not impossible: Scalia ignored the “plain meaning” reading of the text and sided with his fellow conservatives.
That’s about it: two surprising outcomes, the result of just two surprising votes. (And even then, the justices in question were careful to insist that their judgments were exceedingly narrow.)
Several of my fellow close court observers were also surprised by the decision upholding the provision of the Arizona Constitution authorizing an independent commission to draw Arizona’s redistricting map for choosing members of the House of Representatives. Their assumption that the court would rule against the Arizona law was based mostly on Kennedy’s expression of skepticism at oral argument that the people of Arizona, acting by initiative, could be considered “the legislature” of Arizona for purposes of the Constitution’s Elections Clause, which gives such a legislature the power to prescribe the time, places, and manner of federal elections within a state. Kennedy, as senior justice in the majority, ended up assigning the case to Justice Ruth Bader Ginsburg, whose opinion held just that, in another 5–4 decision.
The result didn’t surprise me, however, for two reasons. First, Kennedy is keenly solicitous of popular initiatives in Western states as a check on partisan legislatures, and he is also very concerned about the practice of gerrymandering, which he has described as constitutionally dubious (but not amenable to judicial oversight). The Arizona initiative here is smack dab at the intersection of those two concerns. Second, the practical ramifications of adopting the dissenters’ view would have been significant. As Ginsburg points out, over the past century the people of various states have prescribed numerous important election rules—by initiative or other forms of constitutional amendment—without affording their legislatures the power to overturn them, including rules easing voter registration, banning straight-ticket voting lines on the ballot, regulating absentee voting and vote-counting, and more. I doubt Kennedy would have been too keen on calling into question the constitutionality of all these well-established state election laws.
A few other decisions would have been difficult to predict at the time the court decided to hear the cases in question. For example, few observers would have wagered that the court would, in Kimble, decline to overrule its long-criticized 1964 decision in Brulotte v. Thys Co., holding that a patent holder cannot charge royalties for the use of his invention after its patent term has expired, or that the court in Johnson would hold that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague. And most of us thought the result in Yates—the first court case ever to consider the beloved red grouper—would not be as close as the eventual 5–4 split.
In each of those cases, however, close observers’ views of the probable outcomes changed considerably after the briefings and arguments. A few instances of such altered expectations occur every term—which only serves to prove that one can never be too sure about most cases until after the adversarial process has run its course. Briefing and argument really can make a substantive difference.
Finally, I confess I was deeply uncertain about what the court would do in the Affordable Care Act case—not because I had any doubts at all about which side should prevail (the argument against tax credits on federally run exchanges was preposterous and deeply cynical), but simply because I feared that Scalia’s decadeslong campaign to move the court to a more severe form of formalist, “plain meaning” textualism in statutory interpretation would finally pay dividends. In retrospect, of course, I had nothing to fear, because it is now evident that the chief justice, in particular, is not a practitioner of Scalia’s artificial and strained theories of statutory interpretation. As his opinion explains, Roberts adheres to the old-fashioned and proper view that the role of the court is to be a faithful agent of the legislature when construing statutes. In particular, as the chief’s opinion in Bond last term and his vote in Yates this term demonstrated, he is wiling to find ambiguity in a statute by looking outside the particular words at issue to the entire structure of the statute and, most importantly, to what the effects of the purported “plain meaning” reading would be. If those effects would, in his words, be “untenable” in light of Congress’ manifest design, why, then, the seemingly clear words in question aren’t, in fact, as straightforward as they might have appeared to be when viewed in isolation. To repeat his soon-to-be-canonical adage: “A fair reading of legislation demands a fair understanding of the legislative plan.”
The Inscrutable Zivotofsky Case
Zivotofsky, the Jerusalem passport case, is a category of surprise unto itself, not because of the result but because of how the court got there. Although I correctly surmised the executive branch would prevail, I can’t for the life of me figure out why the various justices reasoned as they did. As I explain at greater length in a series of posts on Just Security, the justices in the majority could have ruled for the executive on narrower, more well-established grounds, rather than holding that Congress cannot countermand the president’s decisions on U.S. recognition of foreign states—a holding that is not very well-justified and that might have a dramatic future impact. Even less explicable is why the chief justice and Justices Scalia and Samuel Alito—all alums of the Department of Justice, two of them in very pro-executive administrations—wrote or joined opinions that are more deferential to congressional supremacy in foreign affairs, including in diplomacy itself(!), than any opinions of justices I can recall, ever. And then there’s Justice Thomas, who’s at the opposite extreme: He articulates views on several important constitutional questions that, in combination, describe what Scalia called “a presidency more reminiscent of George III than George Washington.” To which Thomas responded (my paraphrase): So what? If that’s where my originalist jurisprudence leads me, then why should we care which George turns out to be the proper constitutional model? In contrast to the originalist apostate Scalia, at least I have the courage of my convictions. Yikes.
The Incredible, Disappearing State Justifications in Obergefell
For more than a dozen years, in the scores of cases challenging marriage laws going back to Goodridge and beyond, the briefings, arguments, and written decisions had been dominated by two questions. First, is discrimination on the basis of sexual orientation, like sex discrimination, subject to what the court calls “heightened scrutiny” (in which case the denial of same-sex marriage would certainly be unconstitutional)? Second, if not, what are the state interests supporting denial of same-sex marriage, and do they satisfy even the very deferential “rational-basis” test that is applicable to most forms of governmental distinctions?
Thousands upon thousands of lawyers’ hours, and hours of judges and their clerks, were expended on these questions; if I had to guess, I’d say they consumed upward of 80 percent of the time, effort, and resources in the marriage cases over the years, including in Windsor and Hollingsworth two terms ago, and in Obergefell and its companion cases this year. (Judge Posner’s opinion last year in the Baskin case is representative of this emphasis.)
And so here’s the most shocking thing about the 90-plus pages of the justices’ opinions in Obergefell: They don’t mention the first question at all—not even to reserve it—and they barely even allude to the states’ asserted interests and whether they are sufficient to satisfy rational-basis review!
In his opinion, Justice Kennedy announces the categorical, unequivocal holdings of the court on Pages 22–23 (emphasis mine).
The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
These holdings appear before the court has said a single word about the four defendant states’ justifications for refusing to recognize same-sex marriage. It is only after this passage that Kennedy briefly addresses and unceremoniously rejects a couple of interests mentioned by the dissenting justices. From all that appears, however, the holdings of the court do not depend in the slightest on whether the states’ interests might justify what would otherwise be a violation of equal protection and denial of due process.
The two-ton gorilla is even more conspicuously absent in the dissenting opinions. The lead dissent by the chief justice spends almost 30 pages bemoaning the fact that the court has betrayed history by not leaving the question to be decided by the ordinary political process. (He neglects to mention that recent state constitutional amendments were designed specifically to cut off the ability of marriage equality proponents to alter the law through the ordinary processes of political debate.) To read the chief’s opinion, one would think there must be very strong reasons not to upset the status quo—or, at least, that a tradition of surpassing importance is at stake. Yet he does not so much as offer, let alone defend, a single one of the justifications on which the states have relied, until, finally, this single, solitary sentence on Page 24: “The marriage laws at issue here do not violate the Equal Protection Clause,” he writes, “because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage’ ” (quoting Justice Sandra Day O’Connor’s concurrence in Lawrence).
This took me aback, on two scores. First, the chief does not even address whether “rational basis” is the proper test; he merely assumes it. (He’s typically much more careful than that and takes care to address all serious counterarguments.) Second, and more striking still, can he genuinely believe that the “legitimate state interest” sufficient to support “preserving the traditional institution of marriage” is … to “preserve the traditional institution of marriage”? Or even (if we eliminate the obvious circularity), that tradition, qua tradition (cue Tevya) is a good enough reason to deny same-sex couples the profound benefits of civil marriage—without any normative justification?
The Scalia and Thomas opinions likewise inveigh mightily against the court’s profound “threat to American democracy” and “other aspects of our constitutional order” … without offering a single reason why the discriminatory results of that historical order might be remotely justifiable, or even normatively attractive.
To his credit, Alito at least mentions two purported justifications for restricting marriage to opposite-sex couples. One is “to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.” The other is to avoid the risk of the unknown: “No one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.” Kennedy makes short shrift of these two justifications, which is what they deserve.
There is an explanation, of course, for the disconnect between the gargantuan efforts expended on questions of state interests in the litigation and the virtual absence of any such discussion in the Obergefell opinions: namely, that the real reason many Americans, and many states, have prohibited same-sex marriage is simply because they morally disapprove of, or are deeply discomfited by, homosexuality.
But discomfort, anxiety, and a lack of understanding obviously are not valid justifications for the discrimination at issue here. And the court’s decision in Lawrence took off the table the ability of states to invoke simple moral disapproval. Without those things—as well as religious justifications upon which the civil state cannot rely—there’s simply nothing left on the state interest side of the equation. And thus, whatever one’s views might be on the great issues that divide the justices (substantive due process and Glucksberg, the meaning of “liberty” in the Due Process Clause, and the proper scope of judicial review, etc.), the denial of same-sex marriage simply cannot stand for a very simple reason—namely, that there’s no rational, let alone good, reason for such a denial. Which is why, for all the Sturm und Drang of the dissenting opinions—their clarion call to arms in the service of great American ideals—it is very unlikely they will find much of a sympathetic audience in the years to come. As the Bard says, when you’ve got nothing, you’ve got nothing to lose.
One further word on this important point: Unlike Judge Posner, I don’t think these actual, sub rosa reasons for traditional state laws limiting marriage—moral disapproval, biblical teachings, anxiety about homosexuality, etc.—necessarily equate to “bigotry,” akin to the incentives underlying our ugly history of race discrimination; and thus I don’t find it very useful to put the conversation in those terms, which unfortunately plays into the feverish alarms of the dissenters that same-sex marriage opponents themselves will shortly be treated as despicable social outcasts. Kennedy, to his credit, goes out of his way to disclaim the notion that same-sex marriage opposition is necessarily rooted in bigotry and that its adherents should be shunned: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. … The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
The Next Great Constitutional Challenge: Long-Term Solitary Confinement
Finally, there’s the single most surprising and heartening development of the term.
Two weeks ago, in Davis v. Ayala (a case involving whether it was a harmless error for a trial judge to convene an ex parte “Batson” hearing to assess whether the prosecution’s peremptory challenges to a jury pool were race-based), Kennedy wrote separately to raise an issue that had nothing to do with the question before the court:
[I]f his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.
The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators. … Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.
Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. … There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular. …
Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price. In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them. Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” There is truth to this in our own time.
This is Kennedy’s pronouncement that he is now prepared to recognize at least some constitutional limits on the horrific practice of extended solitary confinement—after many decades during which the court showed little or no inclination to do anything of the sort. (Way back in 1890, the court took note of the fact that under the experience of solitary confinement in the 18th century, “a considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” Yet here we are in 2015, and not much has changed—in large measure because the court has been reluctant to second-guess prison administrators with respect to the practice.)
Kennedy’s Davis concurrence (as well as congressional testimony to similar effect that he gave three months earlier) is an invitation to defense lawyers to bring such constitutional challenges to the court, where they are likely to receive a much more receptive audience than they have in the past. There are several such cases currently being litigated in the lower courts, including in California and in Arizona. Perhaps one of them will turn out to be as important, as momentous, next term as King and Obergefell were this term. (You can be sure that when the court does issue that ruling, it will be over yet another Thomas dissent: Thomas could not resist filing his own concurring opinion in response to Kennedy’s Davis statement—and it’s as grotesque and horrifying a judicial pronouncement as any I can recall.)
This is, I think, by far the most encouraging surprise of the term—the prospect that we might finally bring to an end, or at least materially limit, this barbaric and shameful practice, and thereby come just a bit closer—as the court did this term—to securing the blessings of liberty to ourselves and our posterity.
Perhaps that’s an appropriately hopeful note on which to end our rambling breakfast repast. I wish you all a joyful, relaxing, and reflective holiday.
Until the first Monday in October—