Today in Supreme Court History: June 26, 2003, June 26, 2013, and June 26, 2015

6/26/2003: Justice Kennedy writes the majority opinion in Lawrence v. Texas.

6/26/2013: Justice Kennedy writes the majority opinion in U.S. v. Windsor.

6/26/2015: Justice Kennedy writes the majority opinion in Obergefell v. Hodges.

Justice Anthony Kennedy

Comments

[Dan Schiavetta]

Obergefell v. Hodges, 576 U.S. 644 (decided June 26, 2015): bans on same-sex marriage violate Equal Protection (ruling on various cases involving adoption laws, issuing of marriage licenses, etc.)

Lawrence v. Texas, 539 U.S. 558 (decided June 26, 2003): Texas statute prohibiting putting the penis into mouth or anus struck down as violating Due Process clause (of course it was gay male couple getting arrested, as if women never gave blow jobs); overruled Bowers v. Hardwick, 1986, with the excuse that only 13 states now prohibited gay sex

United States v. Windsor, 570 U.S. 744 (decided June 26, 2013): striking down Defense of Marriage Act which denied federal recognition of same sex marriages (at issue was whether a surviving same-sex spouse from New York where gay marriage was legal could claim federal tax exemption on estate)

District of Columbia v. Heller, 554 U.S. 570 (decided June 26, 2008): right to keep and bear arms is not tied to militia service (overruling case law relying on Miller v. U.S, 1939) and applies to self-defense in the home (at issue was a D.C. handgun ban) though right is “not unlimited” and bans on concealed carry and restrictions on sale are permissible

Hollingsworth v. Perry, 570 U.S. 693 (decided June 26, 2013): no “case or controversy” when opponents of gay marriage try to appeal the District Court’s Equal Protection rejection of the anti-gay-marrige Proposition 8 after state officials refused to further defend it (my neighbors, California residents at the time, were among the gay couples whose legal marriage became illegal with Prop 8 and then legal again with the District Court decision)

Trump v. Hawaii, 585 U.S. — (decided June 26, 2018): deferring to executive branch discretion in upholding restrictions imposed by Trump on travel from North Korea, Syria, Iran, Chad, Libya, Yemen, and Somalia; only text of executive order is analyzed, President’s public declarations that it was based on race and religion disregarded

NLRB v. Canning, 573 U.S. 513 (decided June 26, 2014): President cannot use Recess Appointment Clause for appointments when Senate declares it is not in recess even though it actually is (plaintiff was contesting NLRB decision against his Pepsi distributorship on the basis that majority of commissioners were not validly appointed; Obama’s appointments were designed to achieve statutory NLRB quorum because the Senate had refused to act on nominees; Democrats had done the same with G.W. Bush nominees, though not with the intent of crippling the agency)

​Kisor v. Wilkie, 588 U.S. — (decided June 26, 2019): Chevron deference (Chevron v. Natural Resources Defense Council, 1984) is to an agency’s interpretation of statute; Auer deference (Auer v. Robbins, 1997) is to its interpretation of its own regulations. Here the Court under Auer defers to VA’s timing of retroactive PTSD benefits under its regulation allowing reopening a case when new records introduced (psychiatric report).

Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 588 U.S. — (decided June 26, 2019): Dormant Commerce Clause violated by Tennessee law requiring two years’ residency before applying for liquor license

Washington v. Glucksberg, 521 U.S. 702 (decided June 26, 1997): right to assisted suicide is not subject to Due Process clause (i.e., terminating one’s life is not “life, liberty or property” protected by the clause)

[not guilty]

The Texas statute at issue in Lawrence applied only to same sex participants, not to women performing fellatio. Justice O'Connor concurred in the judgment, reasoning that the application to homosexual sodomy but not to heterosexual sodomy violated Equal Protection.

[Dan Schiavetta]

Thanks! I got this confused with another case. Will correct.

[F.D. Wolf]

I can’t imagine the Court’s unanimous ruling in Noel Canning actually surprised anybody, including President Obama. Ultimately, the question was who gets to determine if the Senate is in session: the Senate or the President? How could it have decided otherwise?

For some reason, it reminded me of the legal disputes between California’s Democratic Governor Jerry Brown and Republican Lieutenant Governor Mike Curb. The California Constitution provided that the lieutenant governor is the acting governor during the governor’s “absence from the state”. Brown launched a spectacularly unsuccessful bid for the 1980 Democratic presidential nomination, during which he would take several campaign trips outside the state. During these absences, Curb was not reticent about using his powers as acting governor, making appointments (including judges), vetoing legislation, and issuing executive orders.

Brown sued, asking the California Supreme Court to adopt a more flexible definition of “absence from the state”, akin to “out of communication with the state”. The court ruled against Brown, essentially saying, “Sorry, ‘absence from the state’ means absence from the state.” In re Governorship, 603 P.2d 1357 (Cal. 1979). Obviously, this would curtail Brown’s campaign.

(The 78-year-old Mike Curb is an interesting individual. He is still the head of Curb Records, which he formed when he was 18 years old. He has scored a few Top 40 hits, both as a performer and writer. He scored a bunch of those terrible 1960s outlaw biker movies. He has also been active as a stock-car racing team owner and is a member of the Stock Car Racing Hall of Fame. He served as California’s lieutenant governor from 1979 to 1983. He ran for governor in 1982, but lost the GOP nomination to state Attorney General George Deukmejian, who would go on to defeat Democrat Tom Bradley in the general election. [Incumbent Brown had not sought a third term, but would much later be elected again in 2010 and 2014]).

[David Nieporent]

For some reason, it reminded me of the legal disputes between California’s Democratic Governor Jerry Brown and Republican Lieutenant Governor Mike Curb. The California Constitution provided that the lieutenant governor is the acting governor during the governor’s “absence from the state”. Brown launched a spectacularly unsuccessful bid for the 1980 Democratic presidential nomination, during which he would take several campaign trips outside the state. During these absences, Curb was not reticent about using his powers as acting governor, making appointments (including judges), vetoing legislation, and issuing executive orders.

A similar dynamic played out more recently in Idaho, except there it was a relatively sane GOP governor and a MAGA lieutenant governor.

[Dan Schiavetta]

Using the reasoning in Canning, the court would have ruled in Brown's favor. He's only absent if he says he's absent.

[F.D. Wolf]

The state constitution also gave the state supreme court exclusive jurisdiction to determine any dispute in the matter (though that was likely directed at the "temporary disability" provision in the same clause).

Though I'm not sure I follow your logic, as whether someone is in the state or not is not particularly an esoteric question subject to much debate. One might as well argue that the President signed a bill when he says he signed a bill, as if the word "signed" did not have a generally plain well-understood meaning.

[Dave_A]

Logically as-per the Constitution's 'Rules clause' (granting the House and Senate the power to internally make their own rules), the Senate gets to decide when it is or is not in recess...

[Martinned]

The arc of the moral universe is long, but it bends toward justice.

[Nige]

So long as you never forget there are always those who'll bend it the other way if they get the chance.

[Rev. Arthur L. Kirkland]

The liberal-libertarian mainstream has been doing a handy job of shaping our national progress along a trajectory that favors reason, justice, science, modernity, inclusiveness, education, prosperity, and transparency throughout our lifetimes. That is why conservatives are so disaffected, desperate, and even delusional.

[apedad]

Can someone send BravoCharlieDelta a trigger warning?

I'd hate for him to have a brain aneurysm because of the three cases highlighted by Prof. Blackman (and captcrisis!).

Tryna be more "Kindler and Gentler" apedad.

[Krychek_2]

Don't you have to have a brain before you can have a brain aneurism?

[Mr. Bumble]

No. See Joe Biden.

[Krychek_2]

When did Joe Biden have a brain aneurism?

[Mr. Bumble]

From Snopes no less:
https://www.snopes.com/fact-check/biden-two-brain-aneurysms/

[Michael P]

Famously related: https://www.newsweek.com/joe-biden-surgery-skull-brain-video-1786037

[Frank Drackman]

I know it's a common spelling error due to it's resemblance to "Jism" but it's "Aneur-ysm". And since I'm Kinder/Gentler Frank I won't point out it's all you Pencil-Necks usually busting my balls for grammatical errors.

Frank

[Frank Drackman]

It was diagnosed after he had a "Change in Mental Status"
he actually was lucid, fortunately they caught the aneurysms in time and returned him to his natural incoherent state.

[Frank Drackman]

Seem to remember Gunnery Sergeant Hartman (NOT "Kinder/Gentler) had an opinion about guys named "Lawrence"
https://www.youtube.com/watch?v=Qr9rgo9f-5g

Frank

[Dan Schiavetta]

Time to cue up the National Organization for Marriage's "Gathering Storm" video from 2009!

[Bob from Ohio]

Didn't realize it was Gayteenth.

I didn't get anyone a fruit basket.

[Krychek_2]

Just send yourself and no one will know the difference.

[Rev. Arthur L. Kirkland]

The culture war's winners want little or nothing from you, Bob from Ohio, other than your continued compliance with the preferences of better Americans. Not your approval, your insights, your effort, your vote, or anything else. So long as you keep toeing that line, you get to whine about it as much as you like. Until replacement.

I have driven through Ohio a few times recently, mostly traveling to concerts. What a desolate, depressing stretch of failure, backwardness, economic inadequacy, and ignorance. If I lived in 95 percent of Ohio -- essentially everything more than 20 miles from Cleveland, Columbus, or Cincinnati -- I might be disaffected, desperate, and disagreeable, too.

[Frank Drackman]

I've been to all 3 of those "Metropoli" nothing really special about any of them. And Ohioans do have a bit of an inferiority complex, its that whole Big 10(11? 12? 13? Third Base!!!!)
And haven't you heard? You will not replace us!!!!!!!
The Chinese will

Frank

[Dave_A]

All that whining about the Chinese is just the 80s whining about the Japanese repackaged...

Dumb.

[Chip Watkins]

As to Obergefell, Windsor, Lawrence, and Perry, a day that lives in infamy. With all the caterwauling about Dobbs (2022) overruling Roe v. Wade (1973), I never read of any progressive complaining about Lawrence (2003) overruling a relatively recent precedent, Bowers v. Hardwick (1986); nor about Obergefell (2015) overruling Baker v. Nelson (1972)(Minnesota prohibition of gay marriage presents no substantial federal question).

[Dave_A]

The court's decision in the gay cases trailed behind, rather than ran in advance of public opinion.

Eg, the social-left had already convinced a solid majority (~65%) of Americans that gay-marriage should be allowed before Ogberfell was issued.