Sunday, March 1, 2015

Standing the Test in Health Care Challenge

       A group of Arizona taxpayers filed a lawsuit against the state’s law giving tax credits to families for tuition at private schools. After finding that the bulk of the credits went to families with students at religious schools, the Ninth U.S. Circuit Court of Appeals ruled that the program violated the First Amendment’s prohibition against government establishment of religion.
       At the Supreme Court, however, the taxpayers discovered that they had no legal standing to bring the case. By a 5-4 vote, the court held in Arizona Christian School Tuition Organization v. Winn (2011) that the taxpayers had suffered no legal injury because their tax dollars were not going to the religious schools. In a sharp dissent, however, Justice Elena Kagan said the majority’s use of the standing issue to squelch the suit contradicted at least five earlier decisions in which the court had entertained similar taxpayer challenges.
       Kagan’s dissent underlines the frequently heard critique that standing is a flexible legal doctrine that justices invoke when they do not want to hear a case and ignore when they do.  That issue may be at play this week [March 4] when the court hears its third politically charged challenge to the Affordable Care Act (ACA), President Obama’s signature health reform law.
       The case before the court stems from a suit filed by four Virginia taxpayers who say they do not want to have to buy health insurance as required under the ACA’s individual mandate. The plaintiffs are challenging the Obama administration’s regulation adopted by the Internal Revenue Service (IRS) in 2011 that extends subsidies to low- and middle-income individuals who need help to afford health insurance from the newly created federal health exchanges.
       The plaintiffs in King v. Burwell argue that the ACA provides those subsidies only in those states — not including Virginia — that have established their own health exchanges instead of relying on a federal exchange. The administration argues that the plaintiffs’ reading of the act is wrong, illogical, and unsupported by any legislative history in Congress.
       Before getting to the merits, however, the plaintiffs have to have legal standing to bring the case. Without those subsidies, they say they would be exempt from the individual mandate because of the so-called unaffordability exemption. The administration questioned their standing in two lower courts, but both lower courts found the plaintiffs had standing before going on to rule for the administration. At the Supreme Court, the administration said in October that it would not question the plaintiffs’ standing.
        New information uncovered by reporters for Mother Jones magazine and The Wall Street Journal raises doubts that the plaintiffs have any concrete stake in knocking out the subsidies. It turns out that the lead plaintiff, David King, is a Vietnam veteran who, according to the Journal, has a VA card and has received health care through the VA. A second plaintiff, Douglas Hurst, is described by his wife on social media as a veteran as well, according to the team of Journal reporters: Louise Radnofsky, Jess Bravin, and Brent Kendall.
       A third plaintiff, Rose Luck, appears to qualify for the unaffordability exemption, according to information pulled together by the Mother Jones writer Stephanie Mencimer. And Mencimer says that the fourth plaintiff, Brenda Levy, will qualify for Medicare when she turns 65 in June.
       Plaintiffs in public policy lawsuits are mere props, of course, but it is telling that the libertarian Competitive Enterprise Institute found no better plaintiffs for the suit that it is paying for and masterminding. King and Luck both voiced virulent anti-Obama sentiments to Mencimer; Hurst’s wife vented in like vein on social media. As for Levy, her views appear to be ambivalent. “I don't like the idea of throwing people off their health insurance,” she told Mencimer.
       The Journal probed whether lawyers on the case had vetted their clients before submitting the declarations that the lower courts relied on to find standing. They all claimed due diligence. Michael Carvin, the lawyer who will argue the case at the Supreme Court, disclaimed any responsibility. “My particular role was not a lot of direct involvement with the plaintiffs,” he told Mencimer.
       As for due diligence, government lawyers get poor marks for not uncovering any of these issues. Having waived the issue, Solicitor General Donald Verrilli is seemingly estopped from bringing it up on Wednesday. But any of the justices could ask. A court can raise a standing issue on its own, just as the Supreme Court itself did in the Arizona case.
       The Roberts Court conservatives have been opportunistic in using the standing doctrine. The conservative five took a strict view of standing when they blocked a challenge to National Security Agency (NSA) spying on human rights lawyers and journalists in 2013. But they raised not a peep during the same term about the questionable standing of Abigail Fisher in challenging affirmative action at the University of Texas.
       Tossing the King plaintiffs would leave the issue unsettled and force the Obamacare opponents to find others. In the Arizona case, Justice Anthony M. Kennedy said, in effect, no problem. Federal courts could adjudicate the issues, he said, in a case by plaintiffs who had suffered “real injury.” But in the modern litigation environment, Kennedy said, courts “must be more careful to insist on the formal rules of standing, not less so.”

Sunday, February 22, 2015

Ginsburg's Celebrity Goes to Her Head

      Three months after reaching age 82, Louis Brandeis decided in February 1939 that he could no longer handle the duties of a Supreme Court justice and retired after 23 years on the bench. Brandeis did not retire completely from public life, however. He devoted much of the remaining two years of his life to a cause he had long worked for: Zionism.
          In years past, Justice Ruth Bader Ginsburg cited Brandeis as her judicial hero and his age upon retirement as the target for her Supreme Court tenure. As the target age approached, however, Ginsburg changed her tune.
          For the past four years now, Ginsburg has forcefully batted away any suggestions for a strategically timed retirement with a liberal Democrat in the White House. Instead, she has vowed to stay as long as she is up to the job. She has detailed her personal health and physical fitness regimen as proof that she is.
          In the process, Ginsburg, who will reach Brandeis's retirement age on June 15, has also become a celebrity. She is not merely the only Supreme Court justice to date to have a tumblr (“Notorious R.B.G.”) but the first justice ever to have a public following of this sort. And, in the process, Ginsburg has stepped right up to the ethical line, or perhaps crossed it, in regard to extrajudicial comments that could taint her supposed impartiality on pending cases.
          Ginsburg’s critics on the political and legal right have seized on her comment to Bloomberg’s Greg Stohr that the American public could accept a Supreme Court decision recognizing a constitutional right for gay and lesbian couples to marry. “The change in people’s attitude on that issue has been enormous,” Ginsburg said. With several additional sentences of elaboration, Ginsburg concluded that it “would not take a large adjustment” for Americans to accept a court ruling for gay marriage rights in the cases to be argued in late April.
          Credit Stohr with asking the gay marriage question in a way that did not ask her to say how she would rule. But Ginsburg’s remark more than tips her hand. Before she was a judge and many times since, Ginsburg has criticized the court for issuing its landmark abortion rights decision Roe v. Wade before the American public was ready for it. Given that history, Ginsburg’s remark violates the rule she set for herself at her confirmation hearing in 1993 that she would give “no hint” in advance of how she would rule on cases before the court.
          Advocates and commentators on the right,— including the anti-gay National Organization for Marriage (NOM) and  the National Review’s columnist Ed Whelan,— have cited Ginsburg’s remark as grounds for her to step out of the case. A strong critique by Josh Blackman, the South Texas law professor and Federalist Society favorite, stops short of calling for recusal. But given the Supreme Court’s practice on recusal — leaving it up to the individual justice —that is not going to happen anyway. Not even with the added criticism of Ginsburg’s role in officiating at a same-sex wedding.
          In his column, Whelan also points to what he calls Ginsburg’s “amazingly indiscreet” comment in the Bloomberg interview describing President Obama’s health care reform as likely to be Obama’s “legacy.” As Whelan notes, the court is set to hear arguments in early March in its third politically charged legal challenge to Obamacare. Whelan also raises his eyebrows at Ginsburg’s remark in the interview that she has a “rapport” with Obama that goes back to her asking to sit next to him when the justices hosted newly elected senators for dinner after the 2004 elections.
          After Bloomberg, Ginsburg sat for another interview with MSNBC’s Irin Carmon. Rachel Maddow introduced the interview by saying that Ginsburg “doesn’t do many interviews.” That is Brian Williams-style puffery. The list of Ginsburg’s interviews, dating from late last summer, includes Reuters, the Associated Press, Yahoo’s Katie Couric, Elle, National Journal, and perhaps others that I have forgotten. She has also sat for staged appearances at, among other places, the 92nd Street Y in New York and Georgetown Law School in Washington.
          Other justices are also out in the public eye more these days than in the past. Note Antonin Scalia’s appearances promoting his co-authored book Reading Law and Sonia Sotomayor’s book tour for her memoir My Beloved World. Chief Justice John G. Roberts Jr. sat for a CSPAN interview in 2011; Elena Kagan did CSPAN right after her confirmation in 2010. Non-news media interviews include Clarence Thomas’s appearance with Yale professor Akhil Amar at the National Archives in September 2012 and Samuel A. Alito Jr.’s interview by a former law clerk at the Federalist Society’s banquet dinner in November 2014.
          All of this is to the good for those who favor increased transparency at One First Street. But with Scalia as the one exception, none of the other justices besides Ginsburg has generated much news apart from Sotomayor’s and Kagan’s post-confirmation doubts about televising the court.
          The inescapable conclusion is that Ginsburg’s celebrity has gone to her head. She was expansive in her MSNBC interview about abortion rights and women’s rights in general; she closed with the hope that she would be remembered as someone who helped “to make things a little better through the use of whatever ability she has.” In context, that sounds like a judge with an agenda who has forgotten the important symbolism of Lady Justice with blindfold and balanced scales.

Monday, February 16, 2015

In Alabama, Obstruction of Justice on Marriage

          The deputy attorney general of the United States brought an order from a federal district court judge with him to Tuscaloosa on June 11, 1963, to desegregate the University of Alabama. Gov. George Wallace stood in the schoolhouse door that day, but gave way after Nicholas Katzenbach brandished the judicial order, backed up by U.S. marshals and later the federalized Alabama National Guard.
          The judge who issued that order was no integrationist. Years earlier, Judge Seybourne Lynne had dissented in 1956 from the ruling that forced the desegregation of Montgomery’s all-white bus line. In the same year, he also refused to empanel a grand jury to consider federal civil rights charges in the deaths of three black ministers, according to Lynne’s 2009 obituary in The New York Times.
          Despite the poor record on racial justice, Lynne knew the law and the U.S. Constitution. “The governor of a sovereign state has no authority to obstruct or prevent the execution of lawful orders of a court of the United States,” Lynne wrote in an opinion that he had drafted in pencil on legal paper.
          Five decades later, however, Alabama’s chief justice is doing all that he can to obstruct the lawful order of a federal court to allow gay and lesbian couples to marry in the state. U.S. District Court Judge Callie Granade ruled in January that the state’s ban on same-sex marriages violates the U.S. Constitution’s Equal Protection Clause. But in a six-page order the day before Granade’s ruling was to take effect, Moore directed probate judges in the state’s 67 counties to ignore it.
          For the ostensible purpose of ensuring “the orderly administration of justice,” Moore created chaos in his Feb. 8 order by directing probate judges to follow the opposite-sex definition of marriage that voters had put into the state constitution in 2006. Over the next few days, judges in some counties issued marriage licenses to same-sex couples, but most did not.
          Moore went on national television to explain his action. “What one lone judge in Alabama federal court says is not law,” Moore said in a contentious, 25-minute interview with CNN’s Chris Cuomo on Thursday [Feb. 12] “If it were the law, then the U.S. Supreme Court wouldn’t be meeting to determine this thing in April through June.”
          The Supreme Court, of course, is set to hear arguments in late April in cases challenging bans on same-sex marriages in four states: Kentucky, Michigan, Ohio, and Tennessee. But Alabama Attorney General Luther Strange struck out at the Supreme Court when he asked the justices to block Granade’s ruling from taking effect.
          Two justices, Antonin Scalia and Clarence Thomas, dissented from that decision issued on Monday morning [Feb. 9]. But Thomas’s written dissent makes clear that the other justices recognized they were allowing same-sex marriage to become law in Alabama. Thomas said he “would have preserved the status quo” until after the court’s ruling, but he and Scalia were outvoted.
          The Supreme Court’s handling of the marriage issue has been subject to criticism ever since the justices refused on the First Monday in October to hear states’ appeals in several cases seeking to reinstate same-sex marriage bans. The court’s “acquiescence,” to use Thomas’s term, has allowed marriage equality for gay and lesbian couples to become law now in 37 states without a definitive ruling. It is no wonder that Thomas surmised that the majority’s inaction may be “a signal of the Court’s intended resolution” of the issue.
          Still, the Supreme Court is the nation’s highest court, and a federal court has the Constitution’s Supremacy Clause behind it when it rules a state law unconstitutional. However many times Moore repeats his mantra — “Her opinion is not the law” — Judge Granade’s ruling is in fact the law unless overruled by a higher federal court. No state court has that authority, much less an individual state justice.
          Moore had the thinnest fig leaf of civil procedure on his side when he said that Granade’s order enjoined the state’s attorney general from enforcing the same-sex marriage ban; the state’s probate judges were not named. Granade destroyed that point later on Thursday [Feb. 12] when she issued a new injunction specifically ordering the probate judge in Mobile not to prevent same-sex couples from marrying.
          By the end of the next day, most of the state’s probate judges — 51 of 67, by one count —  had decided to comply. But eight judges responded with a last-ditch petition to the Alabama Supreme Court seeking an order that they continue to deny marriage licenses to same-sex couples. The state justices agreed to consider the petition, but two dissenting justices called the move unprecedented and procedurally improper.
          When he ordered the University of Alabama desegregated, Judge Lynne acknowledged that Alabamians disagreed about the issue. “I know many of both races are troubled and like Jonah of old, are ‘angry even unto death,’” he wrote.  “My prayer is that all of our people, in keeping with our finest tradition, will join in the resolution that law and order will be maintained.”
          Alabamians are divided on same-sex marriage, with two-thirds opposed, according to polls. Many undoubtedly agree with Moore that a divine order is being upended. But many others will wonder why their state’s highest judge would choose to obstruct instead of obey the law.

Sunday, February 8, 2015

Global March Toward Freedom Calls for Patience

       Freedom and democracy seemed to be on an unstoppable march worldwide in the 1980s and 1990s, but the march has stalled or been pushed back over the last decade. That is the takeaway from Freedom in the World 2015, Freedom House’s annual survey of political and legal rights around the world. For the ninth straight year, Freedom House finds a worldwide decline in freedom with more countries registering declines than gains (61 vs. 33) and the number of countries with gains the lowest since 2005.
       All is not doom and gloom, however, for democracy advocates. In the 1990s, the fall of the Iron Curtain turned most of Eastern Europe green (“free”) on the Freedom House map, and South Africa went from purple (“not free”) to green with the fall of apartheid An interactive series of every-five-year maps on the Freedom House web site shows further significant gains for freedom since 1995. In the Americas, Brazil and Peru changed from yellow (“partly free”) to green; in Africa, Ghana; and in Asia, India.
       The most recent reports and maps, however, show dashed hopes for democratization in much of the world. Russia went from partly free in 2000 to not free by 2005 and ever since. The former Soviet republics in the Caucasus also regressed from yellow to purple, and democratization never caught hold in the “stans” of Central Asia. Mexico has regressed from free to partly free. Most of Central America is yellow, along with the South American holdouts of Venezuela, Bolivia, and Paraguay.
       Perhaps most discouragingly, the new report shows in vivid purple the disappointment among those who hoped the Arab Spring of 2011 would bring political reform to the region that stretches from Morocco eastward across North Africa to Iraq in the Middle East. Today, there is one green spot: Tunisia, rated free on the basis of a liberal constitution and a largely nonviolent transition to competitive, multiparty elections for parliament and president in 2014.Tunisia is the first Arab country to be rated free since Lebanon in the 1970s before the outbreak of its protracted civil war.
       The rest of the Arab world is not free except for partly free Kuwait, Lebanon, and Morocco. Egypt, the Arab world’s most populous country, has regressed from the heady days post-Tahrir Square to a rights-repressing autocracy headed, yet again, by a former general. “Egypt looks like a country just like it was before the Arab Spring,” says Jeremy Pressman, a Middle East expert at the University of Connecticut in Storrs.
       A decade after Saddam Hussein’s ouster, Iraq is rated not free despite the blood, treasure, and expertise that the United States has spent toward establishing a stable, working democracy in the heart of the Middle East. Competitive elections, yes, but freedom not so much — even before the terroristic advent of the Islamic State.
       Within the past year, two countries that had been making advances, Libya and Yemen, have descended into civil wars fought along ethnic and sectarian lines. The Syrian civil war, about to enter its fifth year, continues with no resolution in sight. And Saudi Arabia, a staunch U.S. ally, remains all but impervious to political reform. Freedom House rates it among the “worst of the worst” countries worldwide.
       Freedom House says the “upsurge” in terrorist attacks Nigeria is one other disheartening example  has contributed to the global decline in freedom along with what the report calls “more repressive tactics by authoritarian regimes.” Arch Puddington, the group’s research director, notes that authoritarian governments are adopting more “nuanced” tactics of repression: China’s censorship of the Internet is an example. And many of the authoritarian leaders are now expressing open contempt for democratic values instead of promising to move toward democracy but at their own pace.
       Puddington stresses, however, that freedom’s bad numbers for the past few years are no reason for despair. “The white knuckles of the dictators should not be seen as a sign of their confidence, but of their fears,” he says. As for the scourge of terrorism, Puddington says in effect that it must be met not so much by force as by democratic reforms aimed at solving the underlying social and economic problems that draw the disenchanted and the marginalized to violence.
       The United States has learned in Afghanistan and Iraq of the difficulties of nation-building. Yet the National Security Strategy, which the White House released and submitted to Congress on Friday [Feb. 6], again commits the United States to promoting and defending democracy, human rights, and equality worldwide specifically citing the transitions away from authoritarianism in Tunisia and Burma. It also speaks of “empowering future leaders,” combating corruption, and responding to human rights abuses, including gender-based violence and discrimination against LGBT persons.
       In other sections, the administration calls for “strategic patience” and a transition to a “sustainable global defense posture” around the world. Republicans mocked President Obama’s strategy as toothless in the face of mounting security challenges from, among others, Russia and ISIS. On democracy promotion, the report is similarly subject to criticism as more aspirational than programmatic. Yet patience is both needed and inevitable as freedom advances in places and retreats at times in others. The past few years have been discouraging for advocates of democracy, but overall the arc of history seems to be bending toward freedom.

Sunday, February 1, 2015

Supreme Court’s Empty Promise of Justice

       Thirteen terms ago, the Supreme Court ruled in Atkins v. Virginia (2002) that the Eighth Amendment’s prohibition against cruel and unusual punishment bars a state from executing a mentally retarded offender. Last May, the court followed up by ruling that states cannot set a fixed IQ test score of 70 as the cutoff to be ineligible for the death penalty on the basis of what is now called intellectual disability. “A rigid rule,” Justice Anthony M. Kennedy wrote for the majority in Hall v. Florida (2014), “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.”
      But that was then, and this is now. In the past week, the Supreme Court allowed first Georgia and then Texas to execute condemned murderers who were found by psychiatrists to be intellectually disabled. Lawyers for Warren Hill in Georgia and Robert Ladd in Texas tried up to the final hours to surmount daunting procedural obstacles to get the Supreme Court to stay the scheduled executions, but the justices would not be moved.
      For an example of a rigid rule, the justices had to look no farther than Hill’s challenge to Georgia’s one-of-a-kind law requiring a defendant to prove an intellectual disability defense beyond a reasonable doubt. Even before the Supreme Court’s decision in Atkins, Georgia was a lone outlier among the states in requiring a death penalty defendant to prove “mental retardation” by the strictest level of proof in criminal law.
      Back then, most states that had specific provisions on the subject required a defendant to establish intellectual disability by a preponderance of the evidence — that is, more evidence yes than no. A few states required the higher standard of “clear and convincing evidence” for an intellectual disability defense. After Atkins, some of those states moved to the lower preponderance-of-the-evidence standard. But Georgia left its beyond-a-reasonable-doubt standard unchanged.
      Mental health advocates reject that standard on clinical and legal grounds. “The nature of clinical assessment of [intellectual disability], combined with the special difficulties created by the context of a capital trial, will often make the burden of proof imposed by Georgia virtually impossible to meet,” the American Association on Intellectual Development and Disabilities wrote in one Supreme Court brief.
      Hill was serving a life prison sentence for the 1986 shooting death of his teenaged girlfriend when he beat a fellow inmate to death using a nail-studded board. He was convicted of capital murder in 1991 and sentenced to death. The Supreme Court in 1989 had refused, on a 5-4 vote, to rule mentally retarded offenders ineligible for the death penalty.
      After exhausting his appeals, Hill filed a state habeas corpus petition in 1994 and by 1997 had presented evidence of intellectual disability, including IQ test scores below 70. A lower court ruled Hill was entitled to a jury trial on the issue, but the Georgia Supreme Court disagreed and ordered the judge to decide the issue. Applying the beyond-a-reasonable-doubt standard, the judge found the IQ test scores insufficient evidence because Hill had failed to prove a second factor: a lack of adaptive skills.
      After Atkins, however, the judge found the Georgia law unconstitutional under the Supreme Court precedent and ordered new sentencing for Hill. Again, the Georgia Supreme Court came down on the state’s side, finding nothing in Atkins that required Georgia to lower the burden of proof for an intellectual disability defense. In a dissent, the then-chief justice wrote that the Georgia law allowed the state to execute someone who was probably or even “almost certainly” intellectually disabled.
      Hill filed a succession of habeas petitions to try to get that state court decision undone, to no avail. His lawyers emphasized that the state’s own experts agreed that he was intellectually disabled, but the state’s lawyers insisted the issue was too late. The Supreme Court repeatedly turned a deaf ear before turning down Hill’s final plea for a stay of execution [Jan. 26], with only two justices dissenting: Breyer and Sotomayor.
      The evidence for Texas inmate Ladd’s intellectual disability defense was admittedly weaker: an IQ score of 67 on a test he took more than 40 years ago at the age of 13, but scores above 70 as an adult. Like Hill, Ladd had two murder convictions. In 1996 he strangled and bludgeoned an acquaintance, a mentally impaired woman, while out on parole after serving about one-third of a 40-year sentence for the triple slaying of a Dallas woman and her two children.
      In challenging his death sentence, Ladd noted that no jury had ever passed on his intellectual disability defense. Texas has no fixed IQ score cutoff, but it does bar the defense if a defendant shows capacity for advance planning — the only state with such an approach. Given the Supreme Court’s stance in Hill’s case, it was no surprise two days later [Jan. 28] when the justices found no basis to stay Ladd’s execution, this time with no justice in recorded dissent.
      Together, Atkins and Hall seem to mean that defendants with intellectual disabilities are not to be put to death in the United States and states cannot erect unreasonable barriers to such a defense. But for Warren Hill and Robert Ladd last week, the Supreme Court’s decisions were only words on paper, an empty promise of enlightened justice.

Sunday, January 25, 2015

Fair Housing Law at Risk at High Court

       The Supreme Court took its first limited steps against residential segregation long before it moved to desegregate public schools. But the court’s rulings did not prevent federal, state, and local governments from establishing policies in the mid-20th century that redlined African Americans into racial ghettos while helping to subsidize white neighborhoods in cities and suburbs.
       The court struck down local ordinances aimed at enforcing residential segregation in separate cases in 1917 and 1927 and followed in 1948 with a ruling that barred courts from enforcing racial covenants in housing. The court in 1968 went so far as to rule that racial discrimination in housing had been illegal for more than a century under the Civil Rights Act of 1866, which guaranteed blacks the same property rights as enjoyed by whites.
       Months before that ruling, however, Congress had passed and President Lyndon B. Johnson had signed a comprehensive law, the Fair Housing Act, to bar discrimination in housing on the basis of race or other categories. As Justice Ruth Bader Ginsburg aptly remarked last week [Jan. 22], the law was intended to undo “generations of rank discrimination.” A half-century later, the Roberts Court could be on the verge of unsettling well established precedents to limit the use of the law to prevent housing policies that have discriminatory even if unintentional effects on African Americans and other minorities.
       Ginsburg’s comment came during an hour of legalistic arguments in a closely watched case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. The case tests whether the Fair Housing Act applies not only to intentional discrimination but also to so-called “disparate impact” cases. (Think: “discriminatory effects.”)
       The Roberts Court has been eager to decide this issue, even though 11 federal courts of appeals have been unanimous in recognizing disparate impact liability under the law. Twice in the last three years, the court agreed to hear cases on the issue, but the Obama administration and civil rights groups helped to get the cases settled in order to remove them from the court’s docket.
      In the current case, the Dallas-based Inclusive Communities Project, which seeks to promote housing opportunities for minorities, has sued the state’s housing agency for allegedly concentrating federal subsidies for low-income housing in minority neighborhoods. The state says the statistical disparity results from applying a laundry-list of racially neutral factors. With a trial still pending, Texas’s Republican state government asked the Supreme Court in effect to knock out the legal theory of the project’s suit.
      Chief Justice John G. Roberts Jr. left no doubt about his inclinations in the case in the few questions that he put to lawyers representing the Obama administration and Dallas group. Roberts suggested that the state agency faced an insoluble dilemma: it could be sued for fortifying segregation by subsidizing developments in minority neighborhoods or for denying housing opportunities for minorities if it backed development in white neighborhoods.
      As Roberts posed the issue, the state could not cure any problem except by taking race into account, and the chief justice is on record as opposing any race-conscious remedies in civil rights cases. “The way to stop discrimination on the basis of race,” Roberts famously wrote in a school desegregation case in 2007, “is to stop discriminating on the basis of race.”
       Surprisingly, Roberts’s ability to hold the usual conservative majority appears to turn on Justice Antonin Scalia, who posed tough questions to Texas’s solicitor general Scott Keller during his time at the lectern. Keller’s argument turned in part on differences between the Civil Rights Act’s job discrimination provisions, which have been interpreted to cover disparate impact cases, and the language in the housing law.
       Scalia, co-author of a book on statutory interpretation, said Keller was ignoring 1988 amendments to the law that appeared to assume it covers disparate-impact cases. “Why doesn’t that kill your case?” Scalia asked. “When we look at a provision of law, we look at the entire provision of law, including later amendments.”
       Later, however, Scalia seemed to be his normal self when he questioned Michael Daniel, the lawyer representing the project. “Let’s not equate racial disparity with discrimination,” Scalia said.
       Other justices appeared to be playing their usual roles in the arguments. The liberal bloc — Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan — all seemed certain to uphold the broader interpretation of the housing law. Conservative Samuel A. Alito Jr. left no doubt that he believes in the narrower interpretation, while the moderate-conservative Anthony M. Kennedy followed Roberts’s questions with one to the same effect. Clarence Thomas, as usual, asked no questions, but he has voted consistently to limit civil rights laws to intentional discrimination.
        Along with the purely legal arguments pressed by the liberal justices, the pragmatist Breyer challenged the state’s lawyers on practical grounds. “Why," he asked, "should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people [and] has not produced disaster?”
       Twice already, the Roberts-led majority has turned Breyer’s concerns aside in civil rights cases — first in the 2007 ruling that limited racial-balance policies by public schools and then with the 2013 decision gutting the Voting Rights Act. Roberts warned against unsettling precedents in his confirmation hearing, but he appears to be only half a vote away from fundamentally changing federal civil rights law for the third time in less than a decade.

Sunday, January 18, 2015

Law, Politics Combined on Path to Marriage Equality

      The gay rights advocates who met in a Jersey City hotel in 2005 drafted a strategy document that envisioned winning marriage equality for gay and lesbian couples in 10 states by the year 2020. Fresh from the political backlash to Massachusetts' legalization of same-sex marriage the year before, the plan seemed to be the height of realistic ambition.
      Today, the year 2020 seems more likely to mark the fifth anniversary of marriage equality for gays and lesbians nationwide. The Supreme Court set the stage last week [Jan. 16] for an historic ruling by the end of June recognizing a constitutional right for gays and lesbians to marry anywhere in the United States.
      The path to this point has been long and rocky, dating from 1972 when the Supreme Court curtly turned aside a gay Minnesota couple’s effort to get married “for want of a substantial federal question.” The advances have come through a combination of aggressive law and defensive politics, exercised in the face of doubts and divisions within the gay community and stout public resistance from the straight majority.
      The need to combine law and politics was the insight that Evan Wolfson brought to that meeting of marriage equality pioneers in 2005. Wolfson wrote the seminal thesis arguing for a constitutional right for gays and lesbians to marry while a student at Harvard Law School in the early 1980s.
      By the 1990s, Wolfson, then with the Lambda Legal Defense and Education Fund, helped engineer the first trial-level victory for marriage equality in Hawaii only to see it nullified by a political backlash that spread like wildfire nationwide. The court-ordered legalization of same-sex marriage in Massachusetts in May 2004 prompted a raft of anti-marriage amendments in other states later that year.
      As Wolfson's later political director Marc Solomon recounts in his book Winning Marriage, Wolfson countered the gloom among marriage advocates by arguing that success was still achievable but only by changing the political climate as legal challenges continued. As evidence, he cited the Supreme Court’s patient decade-long delay from the 1950s to 1967 before its decision recognizing a right to interracial marriage.
      The strategy document, actually written by Matt Coles of the American Civil Liberties Union, said that both Congress and the Supreme Court would be more willing to insist that “hold out” states bow to widely accepted social norms than to set those standards themselves. Marriage advocates were mostly on the defensive for the next several years. Indeed, Solomon devotes more than one-third of his book to the intensely political fight to keep the Massachusetts legislature from allowing a popular vote to overturn the state high court’s ruling.
      Politics remained a daunting challenge even after legal victories. The California Supreme Court issued a pro-marriage ruling in May 2008 only for voters to overturn it by adopting the anti-gay Proposition 8 in November. The Iowa Supreme Court issued a landmark pro-marriage ruling in 2009 only for three of the justices in the majority to be rejected by voters the year after.
      Wolfson enlisted Solomon, a non-lawyer political operative, to join his New York City-based Freedom to Marry in 2010 to build a national operation to support pro-marriage groups in individual states with money and expertise. The strategy bore fruit in November 2012 when voters in three states — Maine, Maryland, and Washington —  approved gay marriage laws and Minnesota voters beat back an anti-marriage constitutional amendment.
      The marriage movement’s political successes could be seen as vindicating the views of those political conservatives, including leading Republicans such as Florida’s U.S. senator Marco Rubio, who contend that gay rights advocates should have been concentrating all along on politics, not law. But the history shows that political systems would never have taken the gay marriage issue seriously without first being forced by the courts to deal with it.
      The wrapping-up of the movement now depends on the Supreme Court. Marriage advocates scored legislative successes in 2013 in several blue states: Delaware, Rhode Island, Minnesota, Hawaii, and Illinois. But red states continued to hold out. The rapid advances in 2014 came only after federal courts — along with state courts in New Mexico and New Jersey — read the Supreme Court’s decision in 2013’s Defense of Marriage Act (DOMA) case as implicitly requiring recognition of same-sex marriage.
      The Supreme Court in October allowed federal appeals courts to impose marriage equality in five states by refusing to hear the states’ appeals to reinstate gay marriage bans that the appeals courts had struck down. The court’s hands-off approach toward other pro-marriage rulings since then has allowed same-sex marriage to become law in 36 states.
      The court had no choice last week but to accept the gay couples’ appeals from the ruling by the Sixth U.S. Circuit Court of Appeals to uphold same-sex marriage bans in four states: Kentucky, Michigan, Ohio, and Tennessee. The court seemingly has no choice either but to reverse the Sixth Circuit’s decision. Upholding the laws would create, as Chris Geidner writes in BuzzFeed, “an unprecedented mess.” And public opinion polls now show majority support for same-sex marriage. As Wolfson likes to put it, “Americans are ready for freedom to marry.”