Messing in Court With Texas' Voter Photo ID Law

      How many Texans will be unable to vote in November if the state is allowed to put its new photo ID law into effect? The Justice Department, opposing the law, estimates about 1.4 million Texans lack the kind of identification required under the law. Texas, seeking court permission to put the law into effect, says the number at risk of being denied at the polls is much smaller: 167,724.
      That’s right: Texas acknowledges that its voter ID law could prevent 167,724 people from casting ballots in November — which, the Dallas Morning News notes in an editorial, is roughly the entire population of Brownsville. “That is plainly unacceptable,” the newspaper says.
      The law is all the more difficult to justify given the paltry evidence that the state’s lawyers introduced in federal court in Washington, D.C., last week (July 9-13) on the supposed need for this new requirement. Maj. Forrest Mitchell, the election fraud investigator for the state attorney general’s office, testified that for all of the state’s effort at catching voter fraud, only five people have been prosecuted for voter impersonation – the only fraud that a photo ID law might catch.
      Texas is one of 16 states that have recently enacted laws requiring voters to show a government-issued photo ID, typically a driver’s license, in order to cast ballots. Unlike most of the others, Texas needs court permission to put its law into effect. Like six other southern states with histories of racial discrimination in voting, Texas is subject to a requirement in the federal Voting Rights Act to obtain “preclearance” for any change in election law or voting procedure.
      The fate of the preclearance requirement — section 5 in the act — may lie with the Supreme Court if the justices decide to hear one of the new round of lawsuits challenging the constitutionality of the provision. So far, lower federal courts have upheld the law. Roberts Court conservatives voiced grave doubts about the law, however, in a 2009 decision, Northwest Austin Municipal Utility District No. 1 v. Holder. The Court ruled on a narrower issue, however, and left the law largely intact for the time being.
      With the law on the books, Texas is held to its proof to show that the law does not have the purpose or effect of racial discrimination. Texas asked the Justice Department for clearance to put the law into effect, but the Justice Department said no last year. Texas then took the alternate route prescribed in the law: a suit before a special three-judge federal court in Washington.
      The week-long trial that ended with three hours of opposing arguments on Friday (July 13) seems from news accounts to have gone not so well for the state. Lawyers for the state got an earful from the presiding judge when they complained that the Justice Department had been slow to provide needed information. Judge Rosemary Collyer, a Republican appointee, barked that the state had “a horrendous record” in the case for failing to produce records on time.
      As recounted by the Morning News’s reporter Todd J. Gillman, the state’s statistical expert, Thomas Sager of the University of Texas-Austin, jumped through hoops to whittle the Justice Department’s estimate of 1.4 million disenfranchised voters down to size. Sager followed instruction from state officials to delete from the Justice Department’s calculation anyone over age 65 — on the assumption that the law, known as SB 14, makes it easier for older people to vote by mail.
      That tenuous assumption accounted for 140,666 deletions from the DOJ list, Gillman reported. Another 261,887 people were removed from the “No ID” list because they said they had some sort of Texas ID even though, as Gillman noted, a would-be voter’s say-so will not be enough on Election Day if the law takes effect.
      Even with all the generous statistical assumptions, the prospects of turning away 167,724 would-be voters is in astounding contrast to the exhortations typically heard in advance of elections on the importance of every single vote. Given the scant evidence of voter impersonation — and the utter impracticality of swaying an election that way — one is naturally drawn to the conclusion that photo ID advocates actually want fewer people to go to the polls.
      African American and Latino legislators testified that was exactly the motivation the Republican-controlled Texas legislature had in enacting the law, using special procedures to ease passage. Arguing for the government, Matthew Coangelo, deputy assistant attorney general in the civil rights division, emphasized that the law was enacted against the backdrop of a huge increase in the state’s Hispanic population. Harvard University statistician Stephen Ansolabehere testified that the “No ID” list is disproportionately African American and Hispanic. Those populations are important Democratic constituencies.
      Even if GOP legislators were not deliberately engaged in voter suppression, the state’s lawyers had no concern during the trial with the difficulty would-be voters might face in securing the needed photo ID. When State Rep. Trey Martinez Fischer noted that people in West Texas might have a 200-mile round trip to get to a state office for the needed ID, the state’s lawyer, John Hughes, replied cavalierly that Texans are accustomed to long-distance driving.
      Hughes drew more and harder questions from the judges than Coangelo did during closing arguments. The judges promised to try to decide the case quickly. South Carolina will go to trial before a different panel next month to try to get clearance for its photo ID law.

Changing Minds at High Court in Health Care Case

      Chief Justice John Roberts was not the only member of the Supreme Court to have a change of mind sometime after the arguments over President Obama’s health care reform in late March and before the June 28 decision in the case. Justices Stephen G. Breyer and Elena Kagan also had a change of mind, or heart, on the secondary issue in the case: the constitutionality of the expansion of the federal-state Medicaid program.
      This information comes not from confidential sources but from a re-reading of the transcripts of the March 28 arguments. Kagan and Breyer, even more than their liberal colleagues Ruth Bader Ginsburg and Sonia Sotomayor, challenged attorney Paul Clement relentlessly as he argued that the states were being forced to agree to the expansion even though the federal government was paying all or virtually the cost through 2020 and beyond.
      “Why is a big gift from the federal government a matter of coercion?” Kagan asked. “It's just a boatload of federal money for you to take and spend on poor people's health care,” Kagan added. “It doesn't sound coercive to me, I have to tell you.”
      Breyer intervened later to take on Clement’s point that the law put the states at risk of losing all their Medicaid funds, not just the new federal money, if they refused to go along with the expansion. “Where does it say that?” Breyer said.
      Clement fumbled, but Breyer had his answer already. Quoting the pertinent section, Breyer said a provision in the original Medicaid law passed in 1965 gave the secretary of Health and Human Services discretion to withhold funds from states.
      Citing his own research, Breyer said the law had never been applied in the way Clement was suggesting. “I want to know where this idea came from that should state X say, ‘I don't want the new money,’ that the secretary would or could cut off the old money?” Breyer snapped.
      Solicitor General Donald Verrilli got tough questions in his turn from the other side of the bench, so by the end of arguments the likely outcome was unclear. But Breyer and Kagan seemed all but certain votes against the states’ position.
      Sometime after the arguments, however, Breyer and Kagan came to a different conclusion. They joined Roberts and the court’s conservatives in holding that the Medicaid expansion was unconstitutionally coercive toward the states. Roberts joined the four liberals, however, in salvaging the expansion by limiting the penalty for non-participating states to loss of new, not existing, funds.
      Like Breyer and Kagan, Roberts cast votes in the case, National Federation of Independent Business v. Sebelius, at odds with the tenor of his questions during the six-and-a-half hours of arguments. Unlike Breyer and Kagan, however, Roberts has come under public scrutiny for his change of mind after an extraordinary disclosure by CBS News legal affairs correspondent Jan Crawford.
      Crawford reported on July 1 that Roberts decided to uphold the law six weeks after he had voted and started drafting a majority opinion to strike down the entire Affordable Care Act. Quoting “two sources with specific knowledge of the deliberations,” Crawford said Roberts withstood “a month-long, desperate campaign” to bring him back to his original position. Justice Anthony M. Kennedy in particular was “relentless” in the unsuccessful lobbying effort, she said.
      Crawford, a good reporter with very good conservative sources to match her conservative leanings, did not identify her sources. The logical suspects are justices themselves or law clerks, perhaps with a justice’s approval. Clarence Thomas is a prime suspect, given the mutual admiration between Crawford and Thomas; Kennedy is another, given the flattering description of his role in the events.
      A week later, Crawford’s report is unconfirmed — but also uncontradicted. The structure of the opinions provides some substantiation. The joint dissent listed as authored by the four conservatives — Antonin Scalia, Kennedy, Thomas, and Samuel A. Alito Jr. — mistakenly refers to Ginsburg's partial concurrence as “the dissent,” suggesting it was originally drafted as such. Some evidence also comes from a tweet by the conservative National Review columnist Ramesh Ponnuru in May that the justices had voted to strike down the law but that Roberts had gone “wobbly.”
      Justices can and do change their minds after initial votes in conference. In two known instances, Kennedy himself changed positions in major cases in 1992. He voted initially to permit school-sponsored prayers at high school graduation ceremonies only to write the majority opinion barring the practice. And he voted initially to overrule the abortion rights decision Roe v. Wade before joining Justices Sandra Day O’Connor and David H. Souter in the joint opinion that largely reaffirmed the decision.
      Conservatives feel betrayed by Roberts’ vote. Some are convinced that he yielded to warnings in editorials and commentary in the media and legal blogs that a ruling against the law risked political attacks on the Court. Conservative columnists and commentators responded by publicly pressuring Roberts not to yield to public pressure.
      Court watchers are bemoaning the leak — “a stain” on the Court, says former solicitor general Theodore Olson — but the Court and the justices will survive. For now, it is enough to recall Justice Felix Frankfurter’s oft-quoted comment when he changed his view on an arcane tax issue only six years after an earlier decision. “Wisdom too often never comes,” Frankfurter wrote in Henslee v. Union Planters Bank (1949), “and so one ought not to reject it merely because it comes late."

Roberts Deftly Takes Court Out of Political Arena

     The Supreme Court will not be a major political issue in the presidential election between Barack Obama and Republican Mitt Romney. That is the important secondary implication of Chief Justice John G. Roberts’ surprising decision to join with the court’s liberal bloc in upholding Obama’s signature domestic policy achievement, the Affordable Care Act, even as he rejected its premises on two counts as unconstitutional and un-American.
    Whether or not that was Roberts’ motivation, he has enough political savvy to recognize the effect and enough concern about the court’s institutional standing to be glad of it. Roberts’ vote to keep the health-care law essentially intact answers the politicians and pundits who, along with a growing number of Americans, saw the court as overtly partisan, toeing a Republican line.
    Before saving Obamacare, however, Roberts sided with Republican politicians, libertarian legal scholars, and the conservative commentariat in criticizing it. The individual health insurance mandate, Roberts said, amounted to “cradle to grave regulation” by a government of supposedly limited powers. “This is not the country the Framers of our Constitution envisioned,” he snapped.
      Unconstitutional as well was the way that the Democratic-controlled Congress and the Democratic president decided to expand the federal-state Medicaid program to ensure health care for more of the nation’s poor. The federal government would be paying for the expansion, but Roberts said the provision allowing the government to withhold Medicaid funds from any state that did not go along was unconstitutionally coercive. “A gun to the head,” he termed it.
    With those two passages, Roberts put himself on the side of that part of public opinion reflexively opposed to mandates and Washington. He also established, thanks to the votes of his four fellow conservatives in dissent, important legal markers for the future.
  The federal government’s powers to regulate interstate commerce, we now know, cannot extend to forcing people to buy health insurance – or cars or broccoli. It is hard to imagine the next case where this will be important, but putting the fanciful broccoli analogy into U.S. Reports amounts to a signal victory for the libertarians who dreamed it up.
  More importantly, Roberts and six other justices, including liberals Stephen G. Breyer and Elena Kagan, established an outer limit to the federal government’s Spending Clause power to use federal money to get states to go along with federal policies. The Court had never before found a federally imposed condition on federal money to be unconstitutional. That once-theoretical possibility is now real and — as lawyer Kevin Russell pointed out on SCOTUSBlog — could cast a shadow over federal anti-discrimination laws that threaten states with loss of federal money if they do not comply.
  With these legal victories, it is no wonder that conservatives and libertarians view their glass as at least half full. “Lose the battle, win the war,” wrote Jonathan Adler, law professor at Case Western Reserve University, also on SCOTUSBlog’s free-for-all after the decision was announced. In like vein, Ilya Shapiro, editor in chief of the Cato Supreme Court Review, proclaimed, “We won everything but the case.”
    Justice Ruth Bader Ginsburg spoke for all four liberals in complaining that Roberts’ disquisition on the Commerce Clause was unnecessary if he was going to uphold the individual mandate as a constitutionally valid tax. Roberts’ response is singularly unconvincing. He explained that he would not have been forced to construe the act’s penalty as a tax but for finding its major rationale invalid.
   Once construed as a tax, however, the “exaction” from the relatively small number of Americans who do not have insurance but can afford it is clearly within Congress’s power. As Roberts noted, the Court’s precedents make clear, for example, that the federal government can tax a lottery even if it has no power to run one.
   The political consequences of declaring the insurance mandate to be a tax can only add to its unpopularity. “ObamaCare Taxes the American People and the House Will Repeal It,” House Republican Leader Eric Cantor declared in the press release announcing the scheduled July 11 vote on scrapping the bill altogether. The release is good short-term politics even if the move is doomed to fail in the Democratic-controlled Senate – and in any event would be vetoed by Obama.
    For many legal scholars, Roberts is also unconvincing in rejecting the individual mandate as an exercise of Congress’s Commerce Clause power. Ginsburg recapitulated the argument that the “shared responsibility” provision forces health care customers to prepay for care through insurance rather than risk imposing the cost of unforeseen and uncompensated care on others. Roberts conceded that states could impose the requirement through their police power; Ginsburg countered that Congress has powers commensurate with the nationwide nature of the problem.
   Roberts’ tie-breaking vote to uphold the law takes the court out of the political cross-hairs of Democrats and progressives. The indignant denunciations from some conservatives will soon be forgotten, especially when Roberts returns next term as the conservative leader of a conservative Court. For the moment, however, Roberts took one for the team — the Court — even if none of his colleagues thanked him for it.

Roberts Court Unmasked by Anti-Union Ruling

      The Supreme Court has been getting bad press recently for an ideological divide that exactly corresponds to the justices’ political backgrounds: five Republican-appointed conservatives versus four Democratic-appointed liberals. In an end-of-term wrap-up, however, one of the best of the current Supreme Court advocates suggested that the critique was overblown, that the court’s rulings this year have shown surprising unanimity in some difficult and seemingly contentious cases.
      The suggestion from Paul Clement, the former Republican U.S. solicitor general and go-to lawyer for conservative causes, had enough substance for a possible column. Chief Justice John G. Roberts Jr. as the Great Conciliator, the headline might say. Roberts was finally fulfilling his confirmation promise, the column would say, to work for more unanimity on the court by deciding cases narrowly with scrupulous regard for precedent.
      Clement had examples to prove his point, and others can be seen in a review of the past year’s decisions. But before the column could be written, Roberts and his fellow conservatives threw the thesis for a loop. In a remarkable display of conservative activism, the court last week (June 21) issued a precedent-bending decision on one of the most politically contentious issues of the past year: the political influence of public employee unions.
      The decision, Knox v. Service Employees International Union, stems from a politically charged episode in California in 2005. Gov. Arnold Schwarzenegger had called a special election in November to vote on two ballot measures that would curb public employee unions’ political clout and trim pay and benefits for state government workers. Public employee unions mobilized to fight the measures, which in fact the voters rejected, somewhat soundly.
      To raise money for the “Fight Back Fund,” SEIU and other public employee unions imposed a special assessment. The assessment notice went to all employees covered by the union’s collective bargaining contract, union members and non-members alike. But it did not include the notice, required for regular assessments under a Supreme Court precedent, that non-union members could opt out of paying any portion of the assessment allocated to the union’s political activities.
      The earlier Supreme Court decision, Teachers v. Hudson (1986), balanced the interests of public employee unions in financing their collective bargaining activities and non-union members who might object to the union’s political work. Unions were allowed to charge non-union members for representing them in labor negotiations. But the court recognized a constitutional right for non-union members to avoid being forced to subsidize “ideological activity” to which they objected.
      The procedural safeguard established — the so-called Hudson notice — does not sit well with public employee unions, but they have lived with it. In hindsight, SEIU made a mistake in not sending such a notice when it issued the special assessment in 2005. Seven justices agreed on that point, which was all that was necessary to decide the present case.
      The Roberts Court’s conservative bloc went further. In an opinion dripping with anti-union animus, Justice Samuel A. Alito Jr. depicted the existing legal rules as “a remarkable boon” for unions. SEIU’s “aggressive use of power to collect fees from nonunion members” he termed “indefensible.” And the remedy for the future was not simply to require a Hudson opt-out notice for special assessments, but to establish an opt-in requirement that prevents unions from imposing any part of a special assessment unless the non-union member “affirmatively consents.”
      The existing rule already imposes “a significant burden for employees,” Alito wrote. “[T]he burden would become insupportable if unions could impose a new assessment at any time, with a new chargeability determination to be challenged.”
      As Justice Stephen G. Breyer pointed out in dissent, that passage casts doubt on a precedent accepted as settled for a quarter-century. More troublingly, the conservative majority reached out to take sides in political disputes now raging in state capitals: think Wisconsin. “There is no good reason for the Court suddenly to enter the debate,” Breyer wrote, “much less now to decide that the Constitution resolves it.”
      Breyer spoke for all four liberal justices on the point: Elena Kagan joined his dissent, while Sonia Sotomayor and Ruth Bader Ginsburg rejected the new opt-in requirement even while agreeing with the majority on the result in the case. “I cannot agree with the majority’s decision,” Sotomayor wrote, “to address unnecessarily significant constitutional issues, well outside the scope of the questions presented and briefing.”
      The decision came on the same day that the court neatly finessed another highly contentious issue: broadcast indecency. In a unanimous ruling, the court in FCC v. Fox Televisions Stations threw out findings that Fox and ABC violated indecency rules by fleeting expletives (in Fox’s case) and fleeting body parts (in ABC’s) but left it up to the FCC to consider changing its policy in the future.
      Credit Roberts perhaps with helping fashion unanimity on an issue that had divided the justices in argument. But credit him too with the activist, 5-4 ruling on public employee unions that would have lacked a majority without his vote. Side by side, the two rulings exemplify the Roberts Court’s dual personalities — alternating between judicial restraint and politically-tinged activism. With major rulings due this week on President Obama’s health care law and Arizona’s immigration law, the nation waits to see which of the court’s personalities will win out as a momentous term ends.

Guantanamo Prisoner Trapped in Fog of Law

      The Supreme Court knows how to ride herd on federal appeals courts. Just ask the Federal Circuit Court of Appeals, which has seen any number of its patent law rulings flushed down the judicial toilet in recent years. Or the Ninth Circuit, which the justices regularly use as a punching bag when it rules in favor of a suspect, criminal defendant or state prisoner.
      For reasons known only to the justices, however, the Supreme Court is taking a hands-off policy toward the D.C. Circuit in Guantanamo habeas corpus cases. The conservative majority on the D.C. Circuit has consistently rejected efforts by Guantanamo prisoners to challenge the government’s grounds for holding them. The Supreme Court has stayed its hand even as the lower court judges, in at least one ruling, mocked the court’s landmark decision that guarantees detainees a “meaningful opportunity” to challenge the government’s case against them.
      The justices’ inaction became official last week (June 11) when the court rejected petitions for certiorari filed by seven Guantanamo prisoners seeking review of D.C. Circuit rulings upholding their detention. The justices had taken their time to consider the cases over six conferences stretching back to February. But when the court’s orders list was released on Monday morning, reporters found nothing but the standard listing for cert denials: no dissenting statements explaining why the court should have accepted any of the cases, no replies explaining why the D.C. Circuit got the cases exactly right.
      The seven rulings left standing by the Supreme Court include one of particular importance. In Latif v. Obama, the D.C. Circuit established an evidentiary rule that limits a prisoner’s ability to contest intelligence reports based on interviews conducted in theater-of-war conditions hardly conducive to scrupulous accuracy. Under the 2-1 ruling, an intelligence report compiled in the Afghanistan war zone is entitled to the same “presumption of regularity” that normally attaches to official government records, like a tax receipt, prepared in normal workday conditions.
      The petitioner in the case, Adnan Latif, was turned over to U.S. forces during the Afghanistan war in 2001 and has been held at Guantanamo since 2002. The Yemeni national contends that he was charged with supporting al Qaeda and the Taliban based on a misunderstanding of his statements to U.S. interrogators as translated by an interpreter. As Latif tells it, he was in Afghanistan seeking medical care, unavailable in Yemen, for injuries from an auto accident in 1994.
      Writing for the majority, Judge Janice Rogers Brown acknowledged that the report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.” Even so, Brown said courts have to accept the report — with incriminating statements attributed to Latif — as an accurate account of what he said unless he could convincingly refute the report’s “presumption of regularity.”
      The ruling prompted a sharp dissent by Judge David Tatel, the lone Democratic appointee on the panel. Tatel quoted the majority’s critique of the report and added complaints of his own. The report, he wrote, “was produced in the fog of war by a clandestine method that we know almost nothing about.” Why, he asked, should a court have to presume that it is accurate?
      Latif’s version of events was enough to satisfy U.S. District Court Judge Henry Kennedy, who ordered him released “forthwith” in July 2010. Kennedy acknowledged inconsistencies in Latif’s stories, but concluded that the government had failed to prove that he was associated with al Qaeda or the Taliban.
      On appeal, Brown and fellow Republican appointee Karen LeCraft Henderson ruled that Kennedy should have accepted the intelligence report as an accurate account of what Latif said after his capture. The ruling sent the case back to Kennedy, a Clinton appointee, to reconsider the evidence as instructed.
      In her opinion, Brown was not content with criticizing Kennedy. She criticized the Supreme Court as well for its 2008 ruling, Boumediene v. Bush, that requires the Guantanamo prisoners be provided “meaningful access to a judicial forum.” The ruling’s “airy suppositions,” Brown wrote, “have caused great difficulty for the Executive and the courts.” In his dissent, Tatel complained that his colleagues were thumbing their noses at the high court. “It is hard to see what is left,” Tatel wrote, “of the Supreme Court's command in Boumediene that habeas review be ‘meaningful.’”
      The ruling prompted sharp criticism at the time among the small number of observers following the D.C. Circuit’s habeas decisions carefully. Peter Marguiles, a professor at Rhode Island University School of Law who has represented Afghan detainees, complained of the majority’s “excessive deference” to the government. Benjamin Wittes, an expert at the Brookings Institution who has been supportive of the government’s detention and interrogation policies, called the ruling “wrong.” Today, Wittes calls it “an outlier.”
      The Supreme Court, however, saw no reason to lift a finger either in behalf of Latif or in defense of its own precedent. Latif, now 35, has spent most of his adult life at Guantanamo in what he called in a letter “a wild nightmare.” There he will remain, having been captured in the fog of war and held ever since in the fog of law that the Supreme Court has failed to clear up.

Dissing the Court Bears a Poisonous Fruit of Distrust

      Alex Kozinski had served as chief judge of the U.S. Court of Claims in Washington for two years in 1984 when he decided he wanted a change of jobs and locations. So he wrote to his friend, White House counsel Fred Fielding, who had initially recommended Kozinski to President Ronald Reagan for the judgeship, to request appointment to the Ninth U.S. Circuit Court of Appeals out in California.
      Kozinski had personal reasons for moving to California: his family and his wife’s both lived there. And he thought he had earned favorable consideration, in his words, by “leading the Claims Court through a very difficult time in its history, without dissension or controversy.” But to cinch the argument, Kozinski emphasized what he described as the Nitnth Circuit’s “need of judges with a conservative judicial philosophy.” If appointed, Kozinski vowed, “I promise to do my very best there so that you and the President can be proud of me.”
      Kozinski’s letter, which recently surfaced as part of the Reagan White House archives, raises eyebrows three decades later for its matter-of-fact promise from a sitting judge to serve the president's agenda if elevated to a higher court. But it is hardly surprising to learn that Reagan had an agenda in his judicial appointments, just like two other notable Republican presidents: Richard M. Nixon before him and George W. Bush after.
      The fruits of the more than 40 years of politicization of the courts by the Republican Party may now be reflected in a new poll that shows confidence in the U.S. Supreme Court at an historic low level. The New York Times/CBS News poll, published last week (June 8), found that only 44 percent of those responding approved of the way the Supreme Court is doing its job. As the Times account noted, approval of the court was as high as 66 percent in the 1980s and remained above 50 percent even after the controversial Bush v. Gore decision in 2000.
      More disturbingly, more than three-fourths of those polled – 76 percent – say the justices “sometime let personal or political views influence their decisions.” And a majority — 55 percent — say that the justices’ decision later this month on President Obama’s health care law will be “mainly based on personal or political views,” not on legal analysis (13 percent).
      The court’s sagging approval rating comes at a time when Congress’s numbers are dismally low — in the 10 percent range. Presidential approval ratings have been increasingly volatile for the past two decades. Americans are in a sour mood, politically. So it is perhaps not surprising that the court would also feel the sting of the public’s ingratitude.
      Still, as University of Southern California political scientist Lee Epstein told the Times, the poll calls into question the conventional wisdom that the court can stay somehow above the transient winds of public opinion even as it rules on contentious issues of the day. If the court now finds itself in the political thicket, is there blame to be laid?
      One is tempted to lay the blame on both major political parties. After all, President Obama and leading Democratic senators have laid into the Roberts Court for the past three years for what they see as an anti-democratic activism wielded often in behalf of corporate interests. But a longer historical perspective makes clear that it is the Republican Party that has politicized the Supreme Court, deliberately and wantonly, with little if any regard for the potential damage to the court’s long-term ability to maintain public confidence.
      Nixon started the rhetorical attacks on the court that are now standard fare from Republican politicians and that morphed into the more strident attacks on the court’s legitimacy from Tea Party types. Nixon also started the practice of picking justices based more on conservative ideology than judicial temperament.
      Among the 15 Supreme Court nominations by GOP presidents starting with Nixon, all but three were markedly more conservative than the justices they were to replace. The three exceptions resulted from unique circumstances: President Gerald Ford picked John Paul Stevens to try to calm the post-Watergate climate; Reagan nominated Anthony M. Kennedy only after the failed nomination of conservative ideologue Robert Bork; and President George H.W. Bush picked David H. Souter out of an instinct for bipartisanship.
      Bork was one of three failed nominations; Nixon’s two rejected nominees — Clement Haynesworth and G. Harrold Carswell — insulted the court’s dignity. Some of the successful nominations also lacked respect for the court’s stature. Reagan’s elevation of William H. Rehnquist to be chief justice and selection of Antonin Scalia for Rehnquist’s seat amounted to a conservative poke-in-the-eye to bipartisanship. The first Bush’s description of the inexperienced Clarence Thomas as “the best qualified” candidate for the court was laughable.
      Today, the court is for the first time in history divided along an ideological fault line that corresponds exactly to the justices’ partisan background: five Republican-appointed conservatives, four Democratic-appointed liberals. A public now conditioned to the politicization of Supreme Court appointments by GOP presidents may naturally think that it is all politics — not “all law,” as Sonia Sotomayor promised in her confirmation hearing. The court’s lowered esteem is a burden that the court carries as it confronts issues that are hard enough legally without the added challenge of rendering a decision that can win respect in a politically polarized era.

Narrow Ruling on DOMA May Be What Gay Advocates Need

            The federal appeals court that struck down the key part of the federal Defense of Marriage Act (DOMA) threaded a needle to find legal precedents for ruling that the law improperly discriminates against gays and lesbians. The narrowness of the decision may make it easier for the Supreme Court to come to the same conclusion in an appeal likely to reach the justices in their next term.

            The decision by the First U.S. Circuit Court of Appeals in Massachusetts v. U.S. Dep’t of Health and Human Services (May 31) struck down the section of the 1996 law that denies to same-sex couples any federal benefits normally provided to opposite-sex couples — for example, the ability to file joint instead of separate federal income tax returns. Lawyers from the Boston-based Gay and Lesbian Advocates and Defenders (GLAD) represented legally married couples and widowers from Massachusetts in challenging the law as a violation of equal protection principles.

            The lawyers had two main arguments, either of which could doom not just DOMA but also all of the state bans on same-sex marriages. They argued, first, that sexual orientation is a “suspect classification” that triggers the highest level of constitutional review: “strict scrutiny.” DOMA fails that test, they argued, because the law does not advance any “compelling” government interest nor is “narrowly tailored” to serve any such interest.

At the other end of the constitutional spectrum, the lawyers argued that DOMA cannot survive even the minimal “rational basis” standard of constitutional review. The law does not advance any legitimate governmental interest whatsoever, the lawyers contended.

            The three-judge panel — consisting of two Republican and one Democratic appointee — rejected both of those positions. Writing for the panel, Judge Michael Boudin explained that the First Circuit had refused three years ago to recognize sexual orientation as a suspect classification and that the panel was bound by that precedent. Boudin added that creating a new suspect classification would have “far-reaching implications” by casting doubt on marriage laws “in a huge majority of individual states.”

            Applying the standard rational-basis test, the panel found that DOMA passes constitutional muster, if barely. The 1996 Congress claimed that DOMA would save the federal government money – by limiting benefits or tax preferences to opposite-sex couples only. Boudin said Congress was entitled to deference on that issue even though experts today say that recognizing same-sex marriages could actually save money for the federal government.

            Seemingly out of nowhere, however, Boudin found a different level of constitutional review to apply to DOMA—a standard that it fails, badly. Boudin said that the Supreme Court, in several cases, had engaged in “a closer than usual review” of laws that affected a “historically disadvantaged or unpopular group” and that had “thin, unsupported, or impermissible” justification.

            In one of those cases, U.S. Dep’t of Agriculture v. Moreno (1973), the court struck down a law denying food stamps to households containing unrelated individuals. The court said the law denied food stamps to many needy households and appeared to be motivated solely by a “desire to harm a politically unpopular group.”

            A decade later, the court in City of Cleburne v. Cleburne Living Center (1985) overturned a local ordinance denying a special permit for a group home for the mentally disabled. As in Moreno, the court said the justification for the ordinance seemed thin and the motivation appeared to be “negative attitudes” toward an unpopular group.

            Even without creating a new suspect classification, Boudin acknowledged that gays and lesbians “have long been the subject of discrimination.” The Supreme Court’s somewhat overlooked precedents dictate a “more careful assessment” than usual of laws that disadvantage them, as DOMA does.

Boudin then went through and rejected each of four possible justifications for DOMA offered by former solicitor general Paul Clement on behalf of the House Republican leadership seeking to uphold DOMA. (At President Obama’s direction, the Justice Department is not defending the law.)  Saving the federal government money would be an impermissible justification even if true, Boudin said.

As to the other three rationales, Boudin found no evidence that the law promotes child-rearing in “stable” marriages since it extends no benefits to opposite-sex couples and cannot prevent same-sex couples from bearing or adopting children. Moral disapproval of homosexuality is now recognized as an impermissible justification, Boudin continued. And the final supposed rationale — to “freeze” the marriage issue for further debate — makes no sense, Boudin said, because the law has no expiration date.

In a final point, Boudin noted that marriage has traditionally been a state prerogative. Acknowledging Massachusetts’ role as plaintiff in one of the consolidated cases, Boudin said the state can insist that a federal law interfering with its marriage policies have some particular federal interest—and DOMA has none.

The appeals court stayed its ruling pending the inevitable appeal to the Supreme Court, which seems likely to get the case in time for a decision by June 2013. The high court has been slow to take on cases touching on gay marriage. The DOMA case gives the justices a chance to take on this issue with a small bite. And the First Circuit’s ruling charts a path that steers clear of creating new precedents. Gay rights advocates may not get exactly what they want out of this case. But they may just get what they need.