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Monday, June 29, 2015

The Un-Kennedy

Two thoughts on Paul's post about the prose in Justice Kennedy's Obergefell opinion:

1) If you had asked me as of 9:57 a.m. Friday, I would have predicted the vote would be 6-3, with the Chief joining the majority. And at least part of the reason I thought he would join the majority was to keep the opinion away from Kennedy--either by writing it himself or giving it to Justice Ginsburg--so as to get a narrower, less flowery, clearer, likely more Equal Protection focus.

2) Judge Posner's opinion, while a blast to read (at least if you agree with his conclusions), was criticized in some circles as similarly not placing itself within the ordinary (he uses "conventional") doctrinal framework. He did not commit to a standard of review, not resolving the fundamental rights questions, using cost-benefit balancing analysis that was neither heightened nor strict scrutiny, while insisting that the difference was semantic more than substantive. Posner's opinion is noteworthy for the way it tears apart (and makes fun of) the state's arguments in support of SSM bans. But Posner departs from the typical judicial style as much as Kennedy does.

Posted by Howard Wasserman on June 29, 2015 at 06:21 PM in Howard Wasserman, Law and Politics | Permalink


"the dissents' concerns"

Marty Lederman notes over at Balkanization that the dissents don't really much go into the states' purported purposes except for Alito's dissent.

Roberts and Scalia/Thomas does not focus on the procreation argument. Alito also has a back-up "don't know what will happen" argument.

The dissents primarily relied on tradition and democratic decision-making. The majority quite well imho pointed out how marriage developed over time there. It also pointed out how same sex couples in particular were burdened here. Finally, it noted how the matter has been debated for some time and anyway ultimately judicial review takes certain things out of the hands of direct democracy. Such as when certain groups are burdened.

As to the "go it slow" argument, it noted that waiting longer would burden same sex groups. And, again, there had been much time and debate. It did note that procreation was but one aspect of marriage. To do this, it would have to explain what marriage DOES entail, thus it's four part summary. The summary, contra to some in the dissent, was not just about individual couples getting nice things. Two involved others -- children and society overall. Finally, without directly bringing it up, it differentiated polygamy (marriage as two persons) and incest (marriage as protecting family; incest is blocked in part because it threatens familial stability).

I'd add if it was "terse," we'd probably have some form of "yet another cryptic Kennedy opinion" arguments we had in the past. Also, a discrimination based opinion if anything would probably be more likely to upset the dissent as critical of those against same sex marriage. OTOH, Kennedy specifically noted one can have respectful dissenting views there. The idea denial of same sex marriage denies "dignity" as a matter of effect doesn't necessarily mean it is intended as so.

I doubt there was some magic words that would relieve the dissenting justices that much. Maybe, CJ Roberts would have been a bit less upset. Who knows But the other three? Doubt it. And, I think the majority opinion did address the dissents. I'd toss in that Thomas et. al. might not like substantive due process, but that was lost a while back. The majority showed clear basis.

Posted by: Joe | Jul 4, 2015 3:07:18 PM

I can imagine that certain passages in this opinion were inspired by the dissents - perhaps the handling of Glucksberg, which is probably the best-reasoned thing in the opinion, or perhaps the discussion of why the Court shouldn't proceed with caution at the top of Part V. But I very much doubt that the dissents (or the vote at conference) caused Kennedy to "bolster" his opinion with extensive discussions of the four principles and traditions that make marriage fundamental, or with the discussion of equal protection and due process synergizing and converging into each other. It's that stuff that provokes much of the criticisms in the dissents in the first place, by creating the fair impression that the Court's reasoning boils down to a list of four reasons marriage is desirable and gays desire marriage. One could write a pretty clear and terse opinion about discrimination against gays, gender discrimination, or even fundamental rights that would respond to the dissents' concerns much more effectively than this opinion did. For example, he could simply argue that their precedents recognize marriage as a fundamental right for reasons which have nothing to do with procreation or some idealized potential to procreate (who has children in prison?), still less to do with tradition (bans of interracial marriage were very traditional in the South), so the states' attempts to define marriage as a purely opposite-sex affair fail and their positive justifications are incredibly unpersuasive.

Posted by: Asher | Jul 4, 2015 1:42:45 PM

The majority opinion in Obergefell noted: "In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues."

I don't know if this was a passive aggressive reply to the dissents but pretty nifty if it was. Re-reading the opinion, I think it holds up rather well. (Sure, you'd say that!) I still think equal protection here is going to have to discuss the right to marry.

The dissent think the two groups are not equally situated. Have to show how they are by pointing out what is being deprived (here marriage rights) covers them both. Posner's opinion also shows an EPC ruling could have been more critical to the states. Since even Kennedy's opinion was criticized for dismissing them as some sort of unreasoned bigot, this seems ... not ideal.

I think the opinion was "clear." As to "narrow," I'm not sure what that means. Some want a heightened scrutiny determination. That isn't narrow. Perhaps, an animus determination based on the facts. Would that leave open some state (what ones?) to still block same sex marriage? Would the liberals accept an opinion that would leave open "skim milk" marriage so same sex couples would get kinda marriage ("civil union") while others get "marriages"? I don't think "flowery" language alone would concern Roberts that much.

Since Kennedy is the go to guy for homosexual rights, it would have been a major act of disrespect to deny him the opinion. Would Roberts really do that? The surprise for me is that Roberts gave same sex couples nothing of constitutional dimension. I thought he might concur in judgment.

Posted by: Joe | Jul 3, 2015 5:26:02 PM

I have my concerns about the "doctrinal framework" various majority opinions. However, what has troubled me of late is the vitriol found in the dissents.

Honestly, I'm not sure if there has been an increase or if I'm simply paying attention to it. Regardless, several recent dissents have attacked majorities over issues of style, not substance (e.g., Scalia's ridiculing of Kennedy's flowery prose) and, separately, by calling into question the essential legitimacy of the Supreme Court's decision-making. As to recent, socially charged matters, the "ordinary doctrinal framework" to dissents seems to center on a scorched-earth policy.

I do not mean to suggest that dissenters should muzzle their criticisms, but wonder if type and manner of certain criticism has harmed the Court (and courts), generally, far more than advancing the dissenters' critiques.

Posted by: Glenn | Jul 2, 2015 2:00:42 PM

I don't know if we "know" it, but it seems like it was. He read his dissent from the bench and Alito did not. It is longer and more comprehensive than Alito's. And Scalia begins his dissent by noting he joins the Chief Justice's in ful, but not that he joined Alito's.

Posted by: JHW | Jun 30, 2015 9:31:27 AM

Do we know that Roberts' was the "main dissent"? His did not get more votes than all the others (Ron Collins breaks this down: http://concurringopinions.com/archives/2015/06/crisis-of-the-dissents-divided-disagreement-among-the-obergefell-four.html). It appeared first only because he is Chief.

Posted by: Howard Wasserman | Jun 30, 2015 7:58:36 AM

I never thought Roberts would join the majority and I am skeptical of the idea that, especially in a case as important as this one, his vote would be influenced by his judgment about the optimal use of his opinion assignment power. But one important effect of Roberts dissenting is that he wrote the main dissent instead of (presumably) Scalia. And given the special significance Scalia's dissents in Lawrence and Windsor have had, that might be just as important as who writes the majority opinion.

Posted by: JHW | Jun 30, 2015 2:59:54 AM

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