Thursday, June 25, 2015

The Deciding Season: UPDATE

[I posted this entry in anticipation of the decision by the Supreme Court on the question of same sex marriage in the case of Obergefell v. Hodges. Now that the Court has rendered its decision and construed the Fourteenth Amendment to protect a right to same-sex marriage, I have update the entry.]

We are in a deciding season.

This quickly concluding period comes every year, as June shifts from Spring to Summer, and as the celebratory Fourth of July holiday rushes toward us. It is the period when a rash of decisions are released by the US Supreme Court in cases that have been argued to the Court over the previous nine months.

Every year, the Supreme Court begins a new Term of Court on the First Monday following the First Sunday in October. For example, the Supreme Court is in its October 2014 Term of Court. Technically, each Term of Court continues for one year, ending when the Court sits again on the First Monday following the First Sunday in October of the next calendar year. By custom, and particularly because of the heat and humidity of the Washington metropolitan area, the Supreme Court does not hear cases argued in the summer months. In fact, the Court customarily releases all decisions in all cases that have been argued before the end of June, and then leaves town.

So that is what makes this the deciding season. The Court typically issues 70 to 100 decisions a year in cases that have been fully briefed and orally argued before it. In some cases, the justices are unanimous and the outcome not particularly stunning. For that reason, the Court will have a steady stream of decisions that are released all Term long.

But, when the judges are closely divided, and the cases are highly controversial, decisions in those cases often will not be available until the Court cannot stand the actual temperatures and humidity in Washington and they fly the coop. So, there really is a deciding season, every year, in June, at the Supreme Court. It happens, however, that not every Term of Court has cases that are of such far reaching significance as the Court has entertained this year.

Now that you see what season it is, perhaps understanding how to judge the quality of the "deciding" that goes on would be something of value to you.

If you are like me, it is still a magical thing -- whether in competition diving or gymnastics -- when judges hold up cards showing the score they assign to some athlete's performance. Sometimes, the temper of the crowd, the sheer athleticism, grace, skill, and performance of an athlete, any of these, or in very rare and amazing moments, all of them, explain why the judges all hold up cards indicating a perfect performance.

So here we are, watching the "deciders of the Constitution" render judgment in a rash of cases before they jet off to the Riviera, the Kremlin, and whatever other location to which their inclinations or handlers direct them.

By the way, please don't confuse the "Constitution deciders" with the "War Decider:"

Of course, some of you think the "War Decider" was silly, because he identified himself as "the decider." But, please, not so fast, and not so judgmental.

The Supreme Court, albeit in much more grandiloquent language, proclaimed virtually the same thing about itself over two hundred years ago. It proclaimed itself "the Constitution Decider" in an early set of cases. These cases, issued under the ministrations of Chief Justice John Marshall, set out the Constitution Decider role of the Court: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Then, seemingly, no one worried about the ravings in decisions like Marbury v. Madison and what they might portend for the future of the Nation. Thomas Jefferson was the notable exception to that unconcerned frame of reference. Jefferson thought the Judiciary a terrible menace to our constitutional frame, he referred to judges as "miners and sappers" continually at work undermining the law.)

The question is, as the Constitution Deciders finish their annual decider escapades, will you recognize "silliness" or worse, "errant knavery," if it takes the form of a decision from the Constitution deciders at the Supreme Court?

As I contemplated what advice I might give to an inquirer, on how to measure the quality of the deciding found in decisions of the Supreme Court, I considered many possibilities.

For sheer bulk, of course, few Justices had quite the knack of Harry Blackmun for overworking a topic, attempting through research on arcana only tangentially related to a case to make himself an "expert" in an area of law. Blackmun's opinion on the question of whether Major League Baseball violated antitrust law, Flood v. Kuhn, is widely considered to be, not only a discredited opinion, but also a perfect example of his ham-fisted prolixity.

Bulk, of course, cannot stand for reason. As Justice Scalia noted today, in the King v. Burwell case, in which he wrote a strong dissent,
So, as you see, writing 21 pages of wrong reasoning certainly cannot be the way to convince those who are judging how you performed your job that you performed well.

Or, of course, we could look to such things as spelling, grammar, composition, and style. That, of course, might give us a sense of the education, polish, and verbal acumen of opinion writers. Still, Thomas Jefferson and Abraham Lincoln both exhibited the occasional written eccentricity. I do not think that, by themselves, the principles by which your high school composition teacher measured your writing tells you exactly how to measure the quality of judicial opinions.

There is an old, perhaps over worn, comedic device in situation comedies involving children and teens. Frazzled parents will have told a youth to clean the bedroom, perhaps once, perhaps a dozen times. The room is a mess, a true wreck. The parent then threatens some doom: loss of privileges, loss of planned activity, etc. At some point, the youth "surrenders," goes to the room, and shoves everything in closets or under beds. A quick look from the doorway suggests that the obedient child has accomplished the assigned task.

For some parents, perhaps that child will have done as required. Maybe, and trust me as a dad that has stepped on a Lego or two, maybe all the parent wanted was the ability to have their feet touch the floor in the bedroom. More likely, however, the parent was accomplishing, they thought, multiple goals, such as instilling discipline, teaching respect for personal property, and the like. For the parent that just wants to feel the floor beneath their feet, the child has "done their job." For the other parent, a peek under the bed, a misadventure in opening a closet door, these reveal that the youth only appears to have done their job.

So maybe, just maybe, what we need, in evaluating whether an opinion's author has done his job (or hers), is to figure out what is their job. In fact, when the concern is whether the decisions of the Court tend to further increase the power of the Court, or to destroy republican democracy, or when they simply represent judicial sleight of hand, we assuredly cannot simply trust in judicial assertions that judges are "just doing their job."

“Just doing their job” has been the refuge of scoundrels, great and small, from Nazis in Germany to those that conducted the forced march of Native Americans on the Trail of Tears to those who are executing all manner of offenders in Sharia-governed countries. Of course, “just doing their job” is a tough line to sell when one does the job with such zeal, such evident gusto. “Just doing their job,” in fact, is the conscienceless denial of responsibility where, for a time, consequences of doing that job have not yet come home to roost.

In his critique of the Supreme Court decision in Dred Scott v. Sandford, Abraham Lincoln provided a nice list of considerations that he suggested might have, at least, provided cover for the decision.  He said:
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
I won't assert that Lincoln's is the definitive test for knowing when a decision of the Supreme Court can lay claim to certain legitimacy. Still, the points of inquiry he raises have value in assuring that the Court hews a line with which the People concur and that is known and understood by the various parts of the Government.

If we apply Lincoln's Legitimacy framework to current and pending decisions of the Court we may find that, just as then, we now live under a judicial, not a republican, form of government.

Consider, for example, the recent decision on same sex marriage, Obergefell v. Hodges.

Deciding Obergefell, the Court held there is a Fourteenth Amendment right to same sex marriage, because it denies a fundamental right to marry included within the Due Process Clause of the Fourteenth Amendment. [We can leave aside an obvious truth: such a right was never contemplated by the authors and ratifiers of the amendment.] Applying Lincoln's test would, I suspect, confirm that the decision has no claim of constitutional legitimacy.

Is the decision unanimous among the judges?

No, the decision is not unanimous. As the Court has politicized itself more and more by imposing policy rather than deciding cases, the frequency with which the Court is closely divided on outcomes continues to increase. Obergefell was no different, decided five justices to four.

Any other outcome would have been unthinkable. The gap in judicial philosophy between, on the one hand, Justices Scalia, Thomas, and Alito, and, on the other hand, Justices Breyer, Ginsburg, Sotomayor, and Kagan, on these questions is too broad to conceive of a unanimous result. The only surprise that remained in the Obergefell was whether Justice Kennedy would vote with the constitutional block or the progressive one.

Is the outcome without any apparent partisan bias?

No, the outcome is not without any apparent bias. Two Justices, Ruth Bader Ginsburg and Elana Kagan, had already officiated at same sex marriages while the Court mulled the question whether the Fourteenth Amendment guarantees an right to same sex marriage. It strains credulity, and it insults those Justices' sense of their own integrity, to charge them with what would have been the cynical act of presiding over marriages the legitimacy of which they held in doubt. Clearly, Ginsburg and Kagan labored under a bias favoring the recognition of same sex unions.

Is the decision in accord with public expectation?

Legal public expectation is an interesting notion. The vast majority of States have statutes or constitutions defining marriage so as to limit it to opposite sex couples. True, courts have suspended the operation of those laws. Nonetheless, those laws and constitutional provisions were the product of majority or super majority actions of legislatures and electorates. A recent story reveals the embarrassing lack of legitimacy to a study of how Americans perceive same sex marriage when they are given to understand that their communities accept the idea. I suspect Lincoln's calculus did not provide that shady studies deriving fudged numbers outweigh republican exercises in self government.

Has the recognition of a constitutional right to same sex marriage been a marked feature of the practice of governmental departments throughout our history? 

Hardly. It is just two terms since the Supreme Court found one section only of the Defense of Marriage Act unconstitutional. Candor requires supporters of same sex marriage constitutional rights theories to acknowledge the novelty of their cause.

Was the decision based on false assertions of fact?

It is painful to touch on this next point. It risks hurt to people I think are of good will. But I prefer not to be charged with a flabby application of Lincoln's test, so I will take it up.

Was the outcome one that has been had affirmed and re-affirmed through a course of years?

Obviously, Obergefell, being the first decision recognizing a Fourteenth Amendment right to same sex marriage, cannot make such a claim. It remains to be seen whether the coming course of years will produce affirmations and re-affirmations of it by the court.


Obergefell is decided, and the Court has concluded that the Fourteenth Amendment guarantees a right to same sex marriage. A fair reading of the decision, using Lincoln’s legitimacy test, shows that the majority judges, like children shoving dirty laundry in closets and under beds, did not do their job.