Ruthann Robson runs through the options as to whether today’s immigration/marriage case allows us to predict much about the coming same-sex marriage case.
You’d think it might…but she’s persuasive that it doesn’t…necessarily…
In United States Supreme Court’s fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband. Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage. Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due. Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.
So what might this mean for Obergefell? Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell. On Justice Kennedy’s concurrence, joined by Alito, the clear signal is that Justice Scalia’s refusal to recognize a liberty interest in marriage is not one to which they are subscribing – – – in this case. Given that Justice Kennedy, as author of the Court’s opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia’s derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history. While Justice Thomas is widely expected to agree with Scalia’s position, does the Chief Justice’s joining of Scalia’s opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage? Perhaps. But perhaps not.
Lots of good explanation follows.
Do not watch while drinking coffee.
I’m of course happy that the Supreme Court today issued two rulings that affirm the validity of state-sanctioned same-sex marriage. The full texts are at US v. Windsor and Hollingsworth v. Perry.
But I have to say that there is some bitter wrapped up in the sweet. Chief Justice Roberts’s opinion in Hollingsworth has a pretty bad sting, one well laid-out in Justice Kennedy’s dissent. The issue for me goes back to a key standing decision, Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992). That decision held open the door to ‘bounty’ statutes creating standing: thus if Congress, or a state legislature, wanted to create generalized standing, it need only create a small dollar prize for vindicating a right. At that point, there’s a financial interest, and anyone can bring the case. (Thus, for example, qui tam actions.) As a general matter, liberals have wanted to expand access to courts, and conservatives have sought to narrow it — although one might question the political wisdom of the liberal strategy since the current Court is, IMHO, merely regressing to a historic mean; the Warren Court was a rare departure from the generally conservative, even reactionary, bent which is almost a structural feature of a life-tenured judiciary staffed primarily by older lawyers.
The key move in Hollingsworth, per Roberts with the votes of Scalia and (perhaps unfortunately?) the Court’s moderates and liberals, is to say that California’s state law practice of saying that proponents of a ballot initiative have standing to sue to vindicate it does not cut any ice in federal court. I hope this does not come back to bite us, but I’m fairly sure that it will in future standing cases.
Update: Mark Tushnet is worried about this too. In Perry and the Constitutionalization of Agency Law he writes:
The question then is, What other state-law entitlements are constrained by Article III for standing purposes? (Here “state-law” is a shorthand for “entitlements created by law outside Article III,” so the principle applies to congressionally-determined entitlements as well.) Akins says that Congress can create a right to information merely to satisfy the requestor’s curiosity; Lujan says that Congress can’t create a right to ensure that “the law” be adhered to. Perry is somewhere in between, but who knows exactly where. Maybe the technical problem in Perry is that the California Supreme Court didn’t use the right magic words to describe the initiative proponents as “really, really” agents of the people.
Harold Wasserman has a nice Flag Day post, celebrating the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette. He calls it “a high point in U.S. Supreme Court history.”
Justice Sonia Sotomayor issued a blistering statement today concurring in the denial of cert in Calhoun v. US. While agreeing with the Supreme Court’s decision on procedural grounds, Sotomayor — with (only) Breyer joining in — tore into the prosecutor in the underlying case for making an “argument calculated to appeal to the prejudices of the jury” and tapping “a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”
The statement is powerful stuff. Justice Sotomayor mercifully does not name the prosecutor in her statement, thus saving him or her a lifetime of Internet-search-aided indignity.
Adam Winkler, The Roberts Court is Born:
Roberts may have voted to save healthcare because he wants to preserve the Court’s capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America’s commitment to civil rights for over forty years.
The Voting Rights Act? Really?
Robert E. Malchman, John Roberts, evil genius
[T]he survival of the Affordable Care Act eliminates any clamor for real, progressive health care reform, whether universal Medicare or for the creation of a public insurance option. Such programs are anathema to conservatives who want most things privatized — either for ideological reasons or so that their corporate masters can further enrich themselves.
Roberts has permitted the implementation of a conservative health-care regime, energized the Republican base, preserved his ability to vote against liberal congressional measures as violating the commerce clause and aggrandized himself as an apolitical Chief Justice. I tip my hat to his evil genius.
Steve Benen, How far the four dissenters were willing to go
The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.
To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. …
Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.