Brennan and Marshall. Their names were linked while on the Supreme Court and remain lastingly connected years after their deaths. William J. Brennan Jr., the affable Irishman and architect of the Warren Court’s most important decisions. Thurgood Marshall, the gruff African American crusader against racial segregation and first of his race on the Supreme Court.
Democratic presidential contenders — Al Gore in 2000, Barack Obama in 2008 — cited Brennan and Marshall as the models for their possible Supreme Court nominees. Liberal advocates regularly lament the lack of a comparable liberal on the court today.
Marshall’s work in directing the litigation strategy leading up to Brown v. Board of Education has already been lionized in several creditable biographies. Brennan’s life and work are now being told in a new, exhaustive biography: Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermeil. (Disclosure: Stern, a Congressional Quarterly reporter, and Wermeil, a professor at American University’s Washington College of Law, are colleagues and friends.)
The Brennan biography, written by Stern and based on Wermeil’s extensive interviews with the justice and access to his voluminous files, is touching off a new round of debate over the Warren Court’s burst of liberal activism from the late 1950s until Warren’s retirement in 1969. Today’s conservatives answer criticism of the Roberts Court’s reversals of precedent by likening them to the Warren Court’s.
The comparisons are inapt, as this biography makes clear. With Brennan the mastermind behind the scenes, the Warren Court overturned old and poorly reasoned precedents that had allowed systematic injustices to go uncorrected. No one today would seriously argue against the decision in Baker v. Carr (1963) to use federal judicial power to establish the “one person, one vote” principle in legislative redistricting or the ruling in Gideon v. Wainwright (1962) to require appointment of counsel for indigent defendants in state criminal cases.
History has already judged those rulings and many other activist decisions of the Warren era as both necessary and beneficial. Eight months after the Roberts Court’s ruling in Citizens United, it is reasonable to predict that history’s judgment on freeing corporations to spend unlimited sums in political campaigns will be, at best, ambiguous.
The Brennan biography, however, supports a different line of criticism of both him and his fellow liberal Marshall. Both justices arguably stayed on the court too long.
By the mid-1970s, Brennan the private conciliator was becoming the public scold. His dissents were becoming, as he acknowledged later, “much too sharp and acid.” For years, Brennan had made a point of taking new justices under his wing — helping orient them and laying the groundwork for gentle persuasion in future cases. But not long after Sandra Day O’Connor joined the court in 1981, Brennan made the unseemly and unwise decision to mock one of her early opinions in his dissent.
As for Marshall, Brennan privately considered his performance a disappointment. “What the hell happened when he came on the Court, I’m not sure,” Brennan is quoted as saying, “but he doesn’t seem to have had the same interest.” As with Brennan’s dissents, Marshall was an occasional scold in the justices’ internal deliberations — sometimes addressing his colleagues as “massa” in a deep slave dialect, according to the book.
Both men had health problems in the late 1970s, but both chose to stay on the bench. Brennan was persuaded in part by his family, who wondered what he would do with himself in retirement. Although unmentioned in the book, Marshall is famously reported to have bluntly rebuffed an inquiry from the Carter White House about his possible departure.
With a Democrat in the White House and a Democratic majority in the Senate, either or both of the justices might have retired with an expectation of a compatible successor. Both stayed on for a combination of personal and institutional reasons; their contributions over the next decade are in some sense negligible. Brennan lived long enough to see his successor, David H. Souter, emerge as an often likeminded justice; Marshall regretted his successor, Clarence Thomas.
The episodes buttress the arguments made for the proposal to modify justices’ tenure by limiting their active service on the court to 18 years. As previously suggested here (“Supreme Court Tenure: Too Much of a Good Thing?,” March 2, 2009), the proposal would promote healthy turnover at the court and defuse confirmation battles somewhat by reducing the stakes (the risks) of each new appointment. Despite support from a range of legal experts, however, the proposal is a dead letter politically. Neither party wants to give up the chance for a president to appoint a justice — a Roberts or a Kagan — who can serve for decades.
In his farewell letter this year, John Paul Stevens offered a mild apology to his fellow justices for his 34-year tenure. “If I have overstayed my welcome,” he wrote, “it is because this is such a wonderful and unique job.” Stevens was both sharp and collegial to the end, but his example is the proverbial exception that proves the rule. Age and wisdom may sometimes go hand in hand, but sometimes the better part of wisdom may be recognizing when they do not.
Sunday, October 3, 2010
Monday, September 27, 2010
Judging Roberts: A Wide Strike Zone for Business
Chief Justice John G. Roberts Jr., former Reagan and Bush I administration lawyer and former corporate attorney, won Senate confirmation in 2005 after promising that he had no “agenda” for the Supreme Court. But five years later, no one should be surprised that Roberts and the court he leads have regularly favored business interests in the legal issues that business counts as high priorities.
Numbers help tell the story. Among 53 cases over the past five years where the U.S. Chamber of Commerce has participated, Roberts voted for the Chamber’s position 70 percent of the time, according to an analysis by the consumer-oriented Constitutional Accountability Center. In the 17 closely divided cases, Roberts batted 90 percent for business. By way of comparison, the four liberal justices (Stevens, Souter, Ginsburg, and Breyer) voted for the Chamber in the mid-30 to mid-40 percent range; Sotomayor was slightly lower, but with a small sample in her single term.
Roberts’ votes have helped give business victories in such areas as preemption, arbitration, securities fraud, and civil litigation. Business interests use preemption to rein in states that have more consumer-friendly state law or regulations than the federal government. They want courts to enforce take-it-or-leave-it arbitration contracts to force workers or consumers into a stacked dispute-resolution system and shut them out of courts. And business has worked tirelessly for decades to try to limit the ability of investors to recover for losses due to securities fraud or for consumers to be fully compensated for injuries from unsafe products.
In contrast to the overturned precedents discussed here last week [“Judging Roberts: Riding Roughshod Over Precedent”], Roberts and fellow Bush appointee Samuel A. Alito Jr. have not changed, but only fortified, the court’s orientation on these issues. “The Rehnquist Court was quite a good forum for business,” Maureen Mahoney, a corporate lawyer and former clerk to Chief Justice William H. Rehnquist, remarked at the end of Roberts’ second year as chief justice. “The Roberts Court is even better.”
Preemption cases remain somewhat hard to predict. Truckers and medical device manufacturers won preemption cases, but the court in 2008 rejected efforts by drug makers and tobacco companies to escape state court suits for inadequate warnings about their products. Roberts, however, has been consistent. With one exception in his first term, Roberts has always backed federal preemption, whether in the majority or in dissent.
On arbitration, the Roberts Court has continued the general pattern of rejecting efforts by workers or consumers to escape arbitration clauses in employment or purchase contracts. Some rulings have been by lopsided margins, but two significant decisions in 2010 came on 5-4 votes that pitted the Roberts-led conservatives against the liberal bloc.
The Rehnquist Court dealt investors a blow in 1994 by rejecting any “aiding and abetting” liability for securities fraud; the 5-4 ruling blocked a suit against a bank that had, unknowingly, helped further the fraudulent conduct. The Roberts Court took that ruling one step further in 2008 by freeing a company from securities fraud liability even if it had knowingly participated in the misconduct. The 5-3 vote was mostly along ideological lines; Alito was recused.
The Roberts Court has been somewhat more generous in interpreting federal job discrimination laws. In particular, it has actually widened protection for employees claiming retaliation for complaining about alleged discrimination. But one major ruling in 2009 made age-discrimination suits much more difficult to win. And the famous Ledbetter ruling in 2007 would have narrowed employers’ liability for pay discrimination but for the law Congress passed to overturn it.
Roberts pledged in the confirmation hearing that he would just call balls and strikes and let the political branches decide the rules of the game. But he dissented in 2007 when the liberals plus Kennedy read the Clean Air Act to require the Environmental Protection Agency to regulate “greenhouse gases.” And when Congress required the EPA to use the “best technology” available to “minimize” fish kills at electric power plants, Roberts joined the majority decision in 2009 to allow the agency to retreat from that standard by adopting a cost-benefit analysis. The decision could have saved electric utilities billions but for the Obama administration’s reversal of the Bush administration rule.
One big company that did save billions thanks to a Roberts Court decision is Exxon, which won a 5-3 decision in 2008 cutting a $2.5 billion punitive damage award for the Exxon Valdez oil spill by more than 80 percent to $500 million. Here, the Roberts Court itself defined the strike zone by using its power over federal maritime law to impose a 1-to-1 ratio of punitive to compensatory damages. True, the liberal Souter wrote the decision, but Roberts and three fellow conservatives provided the other votes.
The Chamber of Commerce prevailed in 64 percent of the cases counted by the Constitutional Accountability Center: not a bad batting average. That number includes the business community’s biggest win: the Citizens United decision in January freeing corporations to spend unlimited sums in political campaigns. After five Roberts Court years, Mahoney remains a fan. The Supreme Court, she told the Chamber of Commerce-sponsored preview of the coming term, is “the best court” in the country for getting what she called “a fair hearing” on business-related issues.
Numbers help tell the story. Among 53 cases over the past five years where the U.S. Chamber of Commerce has participated, Roberts voted for the Chamber’s position 70 percent of the time, according to an analysis by the consumer-oriented Constitutional Accountability Center. In the 17 closely divided cases, Roberts batted 90 percent for business. By way of comparison, the four liberal justices (Stevens, Souter, Ginsburg, and Breyer) voted for the Chamber in the mid-30 to mid-40 percent range; Sotomayor was slightly lower, but with a small sample in her single term.
Roberts’ votes have helped give business victories in such areas as preemption, arbitration, securities fraud, and civil litigation. Business interests use preemption to rein in states that have more consumer-friendly state law or regulations than the federal government. They want courts to enforce take-it-or-leave-it arbitration contracts to force workers or consumers into a stacked dispute-resolution system and shut them out of courts. And business has worked tirelessly for decades to try to limit the ability of investors to recover for losses due to securities fraud or for consumers to be fully compensated for injuries from unsafe products.
In contrast to the overturned precedents discussed here last week [“Judging Roberts: Riding Roughshod Over Precedent”], Roberts and fellow Bush appointee Samuel A. Alito Jr. have not changed, but only fortified, the court’s orientation on these issues. “The Rehnquist Court was quite a good forum for business,” Maureen Mahoney, a corporate lawyer and former clerk to Chief Justice William H. Rehnquist, remarked at the end of Roberts’ second year as chief justice. “The Roberts Court is even better.”
Preemption cases remain somewhat hard to predict. Truckers and medical device manufacturers won preemption cases, but the court in 2008 rejected efforts by drug makers and tobacco companies to escape state court suits for inadequate warnings about their products. Roberts, however, has been consistent. With one exception in his first term, Roberts has always backed federal preemption, whether in the majority or in dissent.
On arbitration, the Roberts Court has continued the general pattern of rejecting efforts by workers or consumers to escape arbitration clauses in employment or purchase contracts. Some rulings have been by lopsided margins, but two significant decisions in 2010 came on 5-4 votes that pitted the Roberts-led conservatives against the liberal bloc.
The Rehnquist Court dealt investors a blow in 1994 by rejecting any “aiding and abetting” liability for securities fraud; the 5-4 ruling blocked a suit against a bank that had, unknowingly, helped further the fraudulent conduct. The Roberts Court took that ruling one step further in 2008 by freeing a company from securities fraud liability even if it had knowingly participated in the misconduct. The 5-3 vote was mostly along ideological lines; Alito was recused.
The Roberts Court has been somewhat more generous in interpreting federal job discrimination laws. In particular, it has actually widened protection for employees claiming retaliation for complaining about alleged discrimination. But one major ruling in 2009 made age-discrimination suits much more difficult to win. And the famous Ledbetter ruling in 2007 would have narrowed employers’ liability for pay discrimination but for the law Congress passed to overturn it.
Roberts pledged in the confirmation hearing that he would just call balls and strikes and let the political branches decide the rules of the game. But he dissented in 2007 when the liberals plus Kennedy read the Clean Air Act to require the Environmental Protection Agency to regulate “greenhouse gases.” And when Congress required the EPA to use the “best technology” available to “minimize” fish kills at electric power plants, Roberts joined the majority decision in 2009 to allow the agency to retreat from that standard by adopting a cost-benefit analysis. The decision could have saved electric utilities billions but for the Obama administration’s reversal of the Bush administration rule.
One big company that did save billions thanks to a Roberts Court decision is Exxon, which won a 5-3 decision in 2008 cutting a $2.5 billion punitive damage award for the Exxon Valdez oil spill by more than 80 percent to $500 million. Here, the Roberts Court itself defined the strike zone by using its power over federal maritime law to impose a 1-to-1 ratio of punitive to compensatory damages. True, the liberal Souter wrote the decision, but Roberts and three fellow conservatives provided the other votes.
The Chamber of Commerce prevailed in 64 percent of the cases counted by the Constitutional Accountability Center: not a bad batting average. That number includes the business community’s biggest win: the Citizens United decision in January freeing corporations to spend unlimited sums in political campaigns. After five Roberts Court years, Mahoney remains a fan. The Supreme Court, she told the Chamber of Commerce-sponsored preview of the coming term, is “the best court” in the country for getting what she called “a fair hearing” on business-related issues.
Tuesday, September 21, 2010
Judging Roberts: Running Roughshod Over Precedent
It has been five years this month since Judge John G. Roberts Jr. went before the Senate Judiciary Committee seeking confirmation to be chief justice of the United States. Roberts won senators over with his legal knowledge, smooth demeanor, and personal charm. He also promised, if confirmed, to respect precedent, forswear any “agenda,” strive for fewer divided rulings, and decide cases like an idealized umpire — calling balls and strikes according to a strike zone defined by others, not by him.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
Sunday, September 19, 2010
Judging Roberts: Running Roughshod Over Precedent
It has been five years this month since Judge John G. Roberts Jr. went before the Senate Judiciary Committee seeking confirmation to be chief justice of the United States. Roberts won senators over with his legal knowledge, smooth demeanor, and personal charm. He also promised, if confirmed, to respect precedent, forswear any “agenda,” strive for fewer divided rulings, and decide cases like an idealized umpire — calling balls and strikes according to a strike zone defined by others, not by him.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.
Monday, September 13, 2010
No Day in Court for Victims of Official Torture
For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action.
For every wrong, a remedy: the principle is as old as Blackstone. But five victims of post-9/11 torture conducted or colluded in by the United States government had the door to the courthouse slammed in their faces last week. And the ruling by a federal appeals court came at the behest of the Obama administration, which had seemingly promised to turn the page on the detention and interrogation policies pursued for eight years under President George W. Bush.
With acknowledged reluctance, the federal appeals court in San Francisco last week [Sept. 8] upheld an effort by the United States government to dismiss a suit by five foreigners seeking a remedy for what was from all that appears their wrongful apprehension by the United States and subsequent torture by U.S. forces or at the hands of foreign governments with U.S. connivance. The reason: the story of their abusive mistreatment might lead to the disclosure of “state secrets” that national security supposedly requires to be kept, well, secret.
The five men sued not the United States, but a private airline, Jeppesen Dataplan, a Boeing subsidiary, which was identified in a sworn deposition as the Central Intelligence Agency’s charter company for the so-called “extraordinary rendition” of suspected enemy combatants. Without waiting for Jeppesen to respond, the Justice Department filed a motion to dismiss the suit on the grounds of the state secrets privilege. This controversial judicial doctrine has been invoked as often as not to avoid embarrassment to the government, not to protect real government secrets.
Under wraps, the government told at least some of the secrets of the plaintiffs’ detention and interrogation to the judges of the Ninth U.S. Circuit Court of Appeals. Among a panel of 11 judges, six were sufficiently persuaded to dismiss the torture victims’ suit. The five dissenting judges argued the case should proceed with the plaintiffs allowed to make their case on the basis of information already publicly known. Under the dissenters’ view, the government could seek to limit the evidence in a trial, but not prevent the trial altogether.
News coverage of the ruling, Mohamed v. Jeppesen Dataplan, Inc., has glossed over the plaintiffs’ stories. They bear repeating, at least in summary form. Their allegations are as yet untested in court, but many of the details have been acknowledged — by other governments, if not by the United States.
Lead plaintiff Binyam Mohamed, an Ethiopian and legal resident of Britain, was arrested in Pakistan and transferred to Morocco, where he was held for 18 months and subjected to “severe physical and psychological torture” that included scalpel cuts all over his body, including his penis. Later, he was transferred to a CIA “black site” prison for more abusive treatment and eventually to Guantanamo for five years before being released to Britain.
Among other plaintiffs, Ahmed Agiza, an Egyptian, was arrested while seeking asylum in Sweden and returned to Egypt, where he was beaten and subjected to electric shock; he was eventually tried in an Egyptian military court and, after a six-hour trial, sentenced to 15 years in prison. Abou Elkassim Britel, an Italian of Moroccan origin, was arrested in Pakistan and transported to Morocco, where he was beaten and threatened with sexual torture; he was convicted of terrorism-related charges on the basis of what he contends was a false confession and sentenced to 15 years’ imprisonment.
Plaintiffs Bisher al-Rawi, an Iraqi, and Farag Ahmad Bashmilah, a Yemeni, both say they suffered mistreatment at the hands of U.S. authorities in Afghanistan and — in Bashmilah’s case — in a CIA prison. Both are now free: al Rawi was returned to the United Kingdom, where he is a legal resident; Bashmilah was convicted of a “trivial” crime in Yemen and released on the basis of time served.
Those stories are worth telling here because, if the government gets its way, they will not be told in court. Indeed, as the plaintiffs’ lawyer, American Civil Liberties Union staff attorney Ben Wizner, noted, “To date, not a single victim of the Bush administration's torture program has had his day in court.”
Candidate Barack Obama appeared to promise a changed attitude on the issues. As president, however, he has done no more than to end the discredited practices. He has given the victims no redress nor taken steps to ensure that the full story of post-9/11 torture be told. Indeed, despite a promise to invoke the state secrets privilege sparingly, Attorney General Eric Holder personally approved use of the privilege in this case to bar the trial altogether.
In its ruling, the Ninth Circuit suggested non-court remedies for the plaintiffs, including reparations by the government and a full congressional investigation. For its part, the ACLU promises an appeal to the Supreme Court. The prospects of an appeal, however, are not good; the justices rejected a similar appeal last year. As for the appeals court’s suggestions, they would come, if at all, only after more time has passed — recalling another legal maxim: “Justice delayed is justice denied.”
Blackstone, Commentaries on the Law of England (1765-1769)
* * *
For every wrong, a remedy: the principle is as old as Blackstone. But five victims of post-9/11 torture conducted or colluded in by the United States government had the door to the courthouse slammed in their faces last week. And the ruling by a federal appeals court came at the behest of the Obama administration, which had seemingly promised to turn the page on the detention and interrogation policies pursued for eight years under President George W. Bush.
With acknowledged reluctance, the federal appeals court in San Francisco last week [Sept. 8] upheld an effort by the United States government to dismiss a suit by five foreigners seeking a remedy for what was from all that appears their wrongful apprehension by the United States and subsequent torture by U.S. forces or at the hands of foreign governments with U.S. connivance. The reason: the story of their abusive mistreatment might lead to the disclosure of “state secrets” that national security supposedly requires to be kept, well, secret.
The five men sued not the United States, but a private airline, Jeppesen Dataplan, a Boeing subsidiary, which was identified in a sworn deposition as the Central Intelligence Agency’s charter company for the so-called “extraordinary rendition” of suspected enemy combatants. Without waiting for Jeppesen to respond, the Justice Department filed a motion to dismiss the suit on the grounds of the state secrets privilege. This controversial judicial doctrine has been invoked as often as not to avoid embarrassment to the government, not to protect real government secrets.
Under wraps, the government told at least some of the secrets of the plaintiffs’ detention and interrogation to the judges of the Ninth U.S. Circuit Court of Appeals. Among a panel of 11 judges, six were sufficiently persuaded to dismiss the torture victims’ suit. The five dissenting judges argued the case should proceed with the plaintiffs allowed to make their case on the basis of information already publicly known. Under the dissenters’ view, the government could seek to limit the evidence in a trial, but not prevent the trial altogether.
News coverage of the ruling, Mohamed v. Jeppesen Dataplan, Inc., has glossed over the plaintiffs’ stories. They bear repeating, at least in summary form. Their allegations are as yet untested in court, but many of the details have been acknowledged — by other governments, if not by the United States.
Lead plaintiff Binyam Mohamed, an Ethiopian and legal resident of Britain, was arrested in Pakistan and transferred to Morocco, where he was held for 18 months and subjected to “severe physical and psychological torture” that included scalpel cuts all over his body, including his penis. Later, he was transferred to a CIA “black site” prison for more abusive treatment and eventually to Guantanamo for five years before being released to Britain.
Among other plaintiffs, Ahmed Agiza, an Egyptian, was arrested while seeking asylum in Sweden and returned to Egypt, where he was beaten and subjected to electric shock; he was eventually tried in an Egyptian military court and, after a six-hour trial, sentenced to 15 years in prison. Abou Elkassim Britel, an Italian of Moroccan origin, was arrested in Pakistan and transported to Morocco, where he was beaten and threatened with sexual torture; he was convicted of terrorism-related charges on the basis of what he contends was a false confession and sentenced to 15 years’ imprisonment.
Plaintiffs Bisher al-Rawi, an Iraqi, and Farag Ahmad Bashmilah, a Yemeni, both say they suffered mistreatment at the hands of U.S. authorities in Afghanistan and — in Bashmilah’s case — in a CIA prison. Both are now free: al Rawi was returned to the United Kingdom, where he is a legal resident; Bashmilah was convicted of a “trivial” crime in Yemen and released on the basis of time served.
Those stories are worth telling here because, if the government gets its way, they will not be told in court. Indeed, as the plaintiffs’ lawyer, American Civil Liberties Union staff attorney Ben Wizner, noted, “To date, not a single victim of the Bush administration's torture program has had his day in court.”
Candidate Barack Obama appeared to promise a changed attitude on the issues. As president, however, he has done no more than to end the discredited practices. He has given the victims no redress nor taken steps to ensure that the full story of post-9/11 torture be told. Indeed, despite a promise to invoke the state secrets privilege sparingly, Attorney General Eric Holder personally approved use of the privilege in this case to bar the trial altogether.
In its ruling, the Ninth Circuit suggested non-court remedies for the plaintiffs, including reparations by the government and a full congressional investigation. For its part, the ACLU promises an appeal to the Supreme Court. The prospects of an appeal, however, are not good; the justices rejected a similar appeal last year. As for the appeals court’s suggestions, they would come, if at all, only after more time has passed — recalling another legal maxim: “Justice delayed is justice denied.”
Tuesday, August 31, 2010
Dishonoring America's Promise of Religious Freedom
. . . but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
(U.S. Constitution, Art. VI, cl. 3)
The Framers could hardly have been clearer, but political history has made short shrift of their effort to create what in 21st-century parlance would be called a non-sectarian state. Over more than two centuries now, every president of the United States has been a Christian — and as a practical matter required to profess as much.
Still, nothing in American history provides a precedent for the extraordinary episode over the past weekend [Aug. 28-29] in which a radio and television commentator with no known theological training went on national television to depict the sitting president as a bad Christian. For that is what Americans who did not spend Sunday morning in church got if they watched and listened to Glenn Beck attack President Obama for what Beck called the president’s devotion to “liberation theology.”
In Beck’s telling (on “Fox News Sunday,” under relatively friendly questioning from his fellow Fox-man, Chris Wallace), Obama is wrong about how to achieve salvation. Beck says that instead of seeing salvation as requiring an individual relationship with God, the president views salvation through the collectivist lens of “liberation theology.”
“You see, it's all about victims and victimhood; oppressors and the oppressed; reparations, not repentance; collectivism, not individual salvation,” Beck said. “I don't know what that is, other than it's not Muslim, it's not Christian. It's a perversion of the gospel of Jesus Christ as most Christians know it.”
Perversely, Beck’s critique of Obama’s supposed religious views came by way of an apology for his previous description of Obama as a “racist” with a “deep-seated hatred of white culture.” So, now, instead of seeking to estrange Obama from his followers on the unacceptable basis of race, Beck chooses religion instead. And he did so in the context of the widely shared view among Republicans and conservatives that Obama is actually a Muslim.
Beck’s religion-based attack came one day after he presided over his self-styled “Restoring Honor” rally in Washington, which drew an impressive if not overwhelming crowd stretching from the steps of the Lincoln Memorial to the Washington Monument. The three hours of speeches were largely clear of political divisiveness, but in their overt Christianity — to the exclusion of other faiths — they carried the taint of sectarianism.
It is worth recalling that for 170 years, it was a recognized fact of political life that the president must also be a Protestant: no Catholics need apply. John F. Kennedy broke that barrier, but only after satisfying a “religious test” that he would not take his Catholicism into the Oval Office when making political decisions.
The country today is more religiously pluralistic and in some ways more religiously tolerant than ever before. Joe Lieberman’s religion was of course remarked when Al Gore selected him as the Democratic nominee for vice president in 2000 and the first Jew ever to run on a national ticket of a major party. But Lieberman’s religion never amounted to an issue in the campaign.
The country’s religious pluralism definitely has its limits. Could a Jew be elected president today — or in your lifetime? The odds are no better than 50-50. Can a Muslim be elected to Congress without controversy? No, as Rep. Keith Ellison, the Minnesota Democrat, learned when he took the oath by swearing on a Koran instead of the Christian Bible.
And one need go no further than the pages of the week’s newspapers to know that religious divisiveness is spiking these days. Exhibit No. 1: the debate over the proposed Islamic center to be built in lower Manhattan, a few blocks from “Ground Zero.” Even if one grants the particular sensitivities of some Americans to siting a mosque — one of the planned uses of the center — so near to the epicenter of the Sept. 11 attacks, there is also exhibit No. 2: the apparent torching of construction equipment at the site of a planned mosque in Murfreesboro, a town in Tennessee hundreds of miles from New York City.
Beck’s understanding of “restoring honor” to America had no room for an appeal for tolerance for those who do not share his Christian faith, no room for denouncing the acts of intolerance and even violence against Muslim Americans. As a Mormon, Beck should know better. Mormons themselves were and still are depicted as un-Christian by many Christians, who see them as worshiping a false savior other than Jesus.
Beck’s rally was at the same site, and on the same date, as the historic “March on Washington for Jobs and Freedom” in 1963. Among the great anthems of the civil rights movement was “We Shall Overcome” with one of its refrains celebrating “black and white together.” On the dais that day, and in the audience, Christians and Jews were conspicuously united in a cause truly dedicated to “restoring honor” in the United States.
Sadly, Beck’s rally did not appeal to that unifying sentiment. There would have been honor indeed had he done so, but little real honor in its absence.
Friday, August 6, 2010
Laying Out the Fact on Gay Marriage Rights
When future Supreme Court justice Louis Brandeis was defending early in the 20th century the constitutionality of an Oregon law limiting hours of laundry workers, he adopted a then unheard of legal strategy. Brandeis filled his brief to the Supreme Court not with legal abstractions, but with documented facts showing the adverse health and social effects of long hours on laundry workers, virtually all of them women.
This first ever “Brandeis brief,” recently displayed at the court by the curator’s office, revolutionized Supreme Court practice. Today, advocates and judges alike emphasize facts, not legal abstractions, as a matter of course in constitutional litigation.
Federal judge Vaughn Walker understood this mode of constitutional adjudication in his precedent-making decision on Aug. 4 to strike down Proposition 8, the voter-approved initiative in California denying marriage rights to same-sex couples. The guts of his 136-page ruling in Perry v. Schwarzenegger, available here, consists of 50 pages of “findings of fact,” carefully annotated to testimony from the 2-1/2 week trial. Those findings point ineluctably to one conclusion: Prop. 8 has no purpose or effect other than the impermissible goals of denying gay men and lesbians the liberty to define their own life relationships and demoting them to second-class status — legally, socially, and economically.
Those findings make it difficult, but not impossible, for a higher court to reverse Walker’s ruling. But they are aimed directly at the Supreme Court justice whose vote is essential to a victory for gay rights advocates in the case: Anthony M. Kennedy.
Twice before, Kennedy has written and cast a pivotal vote in decisions striking down anti-gay enactments. In Lawrence v. Texas (2003), Kennedy concluded for a five-justice majority that a Texas law criminalizing gay sex infringed a protected liberty interest in defining one’s intimate relationships. Eight years earlier, in Romer v. Evans (1995), Kennedy led a 6-3 majority in concluding that a Colorado initiative forbidding passage of anti-gay discrimination laws was an animus-motivated enactment aimed solely at shutting gays and lesbians out of the political process.
In his ruling, Walker began with a series of numbered findings of fact demonstrating the obvious and undisputed benefits of marriage. “Material benefits, legal protections, and social support resulting from marriage,” he wrote, “increase wealth and improve psychological well-being for married spouses” (FF39). Those benefits accrue as well to the children of married spouses (FF41).
Domestic partnerships are not the same, Walker found. They are not recognized by the federal or many state governments (FF52) and in any event do not provide the same benefits or cultural status as marriage (FF53). But same-sex couples are “identical” in all relevant aspects to opposite-sex couples in their ability to form “successful marital unions” (FF48). And “marrying a person of the opposite sex,” Walker notes, “is an unrealistic option for gay and lesbian individuals” (FF51).
Significantly, Walker notes that California law encourages gays and lesbians to become parents through adoption, foster parenting, or assistive reproductive technology; about 18 percent of same-sex couples in the state are, in fact, raising children (FF 49). Children of same-sex parents benefit when their parents can marry (FF56), and children raised by same-sex parents are as likely to be “healthy, successful and well-adjusted” as those raised by opposite-sex parents (FF70). That finding, Walker adds, is accepted by psychologists as “beyond serious debate.”
What about the threat to “traditional marriage,” to use Prop. 8 supporters’ phrasing? “Permitting same-sex couples to marry,” Walker writes, “will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages” (FF54).
What then does Prop. 8 accomplish? The measure, Walker writes, “places the force of law behind stigmas against gays and lesbians” — bluntly, that they are “not as good as heterosexuals” and their relationships “do not deserve the full recognition of society” (FF58). It reserves for heterosexual couples “the most socially valued form of relationship” (FF60) while it “increases costs and decreases wealth” of same-sex couples (FF66), domestic partner status notwithstanding.
Set against the acknowledged “long history of discrimination” against gays and lesbians (FF75), the Prop. 8 campaign relied on false “stereotypes” about gays and lesbians (FF80) and unfounded fears that children exposed to the concept of same-sex marriage could become gay or lesbian as a result (FF79). And, once enacted, the measure “results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships” (FF68).
Against that backdrop, Walker proceeds to find that none of the proffered justifications for Prop. 8 — preserving tradition, moving slowly on social change, preferencing opposite-sex parenting, or protecting freedom of opponents of same-sex marriage — pass constitutional muster. The measure has no “rational basis,” he concludes, but serves merely to “enshrine” in law the purported superiority of heterosexual to same-sex couples.
The ruling is a testament not only to the litigation strategy of the plaintiffs’ strange bedfellow lawyers, liberal David Boies and conservative Theodore Olson, but also to the factual vacuum of the Prop. 8 campaign. Just one day later, Robert George, a Princeton professor and leading gay marriage opponent, was vowing that his side — out-litigated at trial — would be presenting new information for appeals courts to consider. For now, however, Walker’s fact-heavy decision makes the most compelling of cases to date for recognizing marriage rights for same-sex couples.
This first ever “Brandeis brief,” recently displayed at the court by the curator’s office, revolutionized Supreme Court practice. Today, advocates and judges alike emphasize facts, not legal abstractions, as a matter of course in constitutional litigation.
Federal judge Vaughn Walker understood this mode of constitutional adjudication in his precedent-making decision on Aug. 4 to strike down Proposition 8, the voter-approved initiative in California denying marriage rights to same-sex couples. The guts of his 136-page ruling in Perry v. Schwarzenegger, available here, consists of 50 pages of “findings of fact,” carefully annotated to testimony from the 2-1/2 week trial. Those findings point ineluctably to one conclusion: Prop. 8 has no purpose or effect other than the impermissible goals of denying gay men and lesbians the liberty to define their own life relationships and demoting them to second-class status — legally, socially, and economically.
Those findings make it difficult, but not impossible, for a higher court to reverse Walker’s ruling. But they are aimed directly at the Supreme Court justice whose vote is essential to a victory for gay rights advocates in the case: Anthony M. Kennedy.
Twice before, Kennedy has written and cast a pivotal vote in decisions striking down anti-gay enactments. In Lawrence v. Texas (2003), Kennedy concluded for a five-justice majority that a Texas law criminalizing gay sex infringed a protected liberty interest in defining one’s intimate relationships. Eight years earlier, in Romer v. Evans (1995), Kennedy led a 6-3 majority in concluding that a Colorado initiative forbidding passage of anti-gay discrimination laws was an animus-motivated enactment aimed solely at shutting gays and lesbians out of the political process.
In his ruling, Walker began with a series of numbered findings of fact demonstrating the obvious and undisputed benefits of marriage. “Material benefits, legal protections, and social support resulting from marriage,” he wrote, “increase wealth and improve psychological well-being for married spouses” (FF39). Those benefits accrue as well to the children of married spouses (FF41).
Domestic partnerships are not the same, Walker found. They are not recognized by the federal or many state governments (FF52) and in any event do not provide the same benefits or cultural status as marriage (FF53). But same-sex couples are “identical” in all relevant aspects to opposite-sex couples in their ability to form “successful marital unions” (FF48). And “marrying a person of the opposite sex,” Walker notes, “is an unrealistic option for gay and lesbian individuals” (FF51).
Significantly, Walker notes that California law encourages gays and lesbians to become parents through adoption, foster parenting, or assistive reproductive technology; about 18 percent of same-sex couples in the state are, in fact, raising children (FF 49). Children of same-sex parents benefit when their parents can marry (FF56), and children raised by same-sex parents are as likely to be “healthy, successful and well-adjusted” as those raised by opposite-sex parents (FF70). That finding, Walker adds, is accepted by psychologists as “beyond serious debate.”
What about the threat to “traditional marriage,” to use Prop. 8 supporters’ phrasing? “Permitting same-sex couples to marry,” Walker writes, “will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages” (FF54).
What then does Prop. 8 accomplish? The measure, Walker writes, “places the force of law behind stigmas against gays and lesbians” — bluntly, that they are “not as good as heterosexuals” and their relationships “do not deserve the full recognition of society” (FF58). It reserves for heterosexual couples “the most socially valued form of relationship” (FF60) while it “increases costs and decreases wealth” of same-sex couples (FF66), domestic partner status notwithstanding.
Set against the acknowledged “long history of discrimination” against gays and lesbians (FF75), the Prop. 8 campaign relied on false “stereotypes” about gays and lesbians (FF80) and unfounded fears that children exposed to the concept of same-sex marriage could become gay or lesbian as a result (FF79). And, once enacted, the measure “results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships” (FF68).
Against that backdrop, Walker proceeds to find that none of the proffered justifications for Prop. 8 — preserving tradition, moving slowly on social change, preferencing opposite-sex parenting, or protecting freedom of opponents of same-sex marriage — pass constitutional muster. The measure has no “rational basis,” he concludes, but serves merely to “enshrine” in law the purported superiority of heterosexual to same-sex couples.
The ruling is a testament not only to the litigation strategy of the plaintiffs’ strange bedfellow lawyers, liberal David Boies and conservative Theodore Olson, but also to the factual vacuum of the Prop. 8 campaign. Just one day later, Robert George, a Princeton professor and leading gay marriage opponent, was vowing that his side — out-litigated at trial — would be presenting new information for appeals courts to consider. For now, however, Walker’s fact-heavy decision makes the most compelling of cases to date for recognizing marriage rights for same-sex couples.
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