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

[Mr. Bumble]

One short of a grand slam.

[Syd Henderson]

If you add Hollingsworth v. Perry you get one. If you don't, it's a triple crown (or a hat trick).

[Magister]

Or a trifecta.

[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 same-sex genital contact struck down as violating Due Process clause (of course it was gay male couple getting arrested; laws against gay sex were hardly ever enforced against lesbians); distinguished 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

Spence v. Washington, 418 U.S. 405 (decided June 26, 1974): invalidating on First Amendment grounds statute forbidding affixing material to American flag (plaintiff had put a peace symbol on his flag and hung it outside his window upside down as a Vietnam War protest)

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 striking down of the anti-gay-marriage 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. 667 (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, although not with the intention 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. 504 (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)

[JoeFromtheBronx]

The result in Tennessee Wine & Spirits Retailers Ass’n v. Thomas was Alito for the Court v. Gorsuch & Thomas for what result was warranted by the text and spirit of the Constitution.

The policy of the Marshall Court was to have some Madeira wine to allow the ideas to flow.

[SMP0328]

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)

The decision that slept peacefully, as it was repeatedly ignored, just waiting for an opportunity to make its mark. Then Dobbs came and assigned it a seek and destroy mission aimed at two other decisions. Glucksberg knew it had to succeed, regardless of the consequences.

[Dilan Esper]

Glucksberg's "rooted in tradition test" is, um, deeply rooted. It goes back to Snyder v. Massachusetts. The thing is it exists alongside another tradition that runs from Palko v. Connecticut to Obergefell and which is broader.

[apedad]

I checked the Washington v. Glucksberg decision and was surprised that it was unanimous.

One of the reasons for upholding Washington's ban was, "First, Washington has an 'unqualified interest in the preservation of human life.'”

What a joke.

People who are terminally ill are not thinking about the preservation of life.

Luckily Justice Stevens addressed this in his concurrence.

"In my judgment, however, it is clear that the so-called 'unqualified interest in the preservation of human life,' Cruzan, 497 U. S., at 282; ante, at 728, is not itself sufficient to outweigh the interest
in liberty that may justify the only possible means of preserving a dying patient’s dignity and alleviating her intolerable suffering."

[Dan Schiavetta]

Hear hear, J.P.S.

[ReaderY]

Nonesense. Just because you disagree with thousands of years of Western moral teaching doesn’t let you dismiss it like that.

Of course the state has a compelling interest in preserving life.

The fact that you can’t see this is only evidence that you are blind, dismissing concepts of color and form as bullshit in your confidence that if you can’t see something, it can’t possibly be there.

The state absolutely has a compelling interest in keeping doctors out of the business of killing people.

[ReaderY]

As just one issue among many, you simply assume people have less pain after death than before. How do you know this? If you claim that science says this, then what scientific evidence do you have that establishes this?

[Rev. Arthur L. Kirkland]

Competent adults neither advance nor accept supernatural arguments or positions in reasoned debate concerning public affairs.

[Martinned2]

Of course the state has a compelling interest in preserving life.

Of course it does. But it doesn't necessarily have a compelling interest in preserving the life of someone who doesn't want it preserved.

[Bob from Ohio]

You are Dutch, best sit this out.

"Dutch woman, 29, granted euthanasia approval on grounds of mental suffering
Zoraya ter Beek, who has chronic depression, anxiety, trauma and unspecified personality disorder, expected to end her life soon" Guardian

[Sarcastr0]

Bob, you want vastly stripped down criminal due process and want the death penalty expanded.

Don't stand on respect for life; you have none.

[Mr. Bumble]

False equivalency.
...and by the way, why do you always feel the need to answer for others? Question was addressed to Martinned2 who is more than capable of responding.

[Magister]

There was no question addressed to Martinned2. And nobody addressed any question to Bumble. There are occasionally narrowly aimed questions, like "Bumble, what is wrong with you?" that others could only answer less authoritatively. But a more general observation or question, like "does anyone have any idea what might be wrong with Bumble?", would invite responses.

[Bob from Ohio]

"Don’t stand on respect for life; you have none."

My support for the death penalty is because I respect the lives of innocents.

Your respect is for the murderers I guess.

[Sarcastr0]

You don't seem to care much about innocent people running afoul of the system.

No, you don't care about innocent people.

[apedad]

"Of course the state has a compelling interest in preserving life."

Care to prove that?

Even our Constitution's preamble doesn't address preserving life - but it does address liberty to ourselves.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

[Martinned2]

Exactly. "Domestic tranquility" = "let's see if we can stop people killing each other", but arguably "the blessings of liberty" = "if a sane person wants to end his life, he should be able to".

[Bob from Ohio]

"Care to prove that?"

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

[Dr. Ed 2]

Sodomy was considered wrong for all of human history until SCOTUS decided to re-write morality in the course of 12 years.

[Martinned2]

So were many other things that were, on closer consideration, never immoral to begin with.

[Martinned2]

O, and obviously your historical analysis is also stupid.

Each of us when separated, having one side only, like a flat fish, is but the indenture of a man, and he is always looking for his other half. Men who are a section of that double nature which was once called Androgynous are lovers of women; adulterers are generally of this breed, and also adulterous women who lust after men: the women who are a section of the woman do not care for men, but have female attachments; the female companions are of this sort. But they who are a section of the male follow the male, and while they are young, being slices of the original man, they hang about men and embrace them, and they are themselves the best of boys and youths, because they have the most manly nature. Some indeed assert that they are shameless, but this is not true; for they do not act thus from any want of shame, but because they are valiant and manly, and have a manly countenance, and they embrace that which is like them. And these when they grow up become our statesmen, and these only, which is a great proof of the truth of what I am saving. When they reach manhood they are lovers of youth, and are not naturally inclined to marry or beget children,—if at all, they do so only in obedience to the law; but they are satisfied if they may be allowed to live with one another unwedded; and such a nature is prone to love and ready to return love, always embracing that which is akin to him. And when one of them meets with his other half, the actual half of himself, whether he be a lover of youth or a lover of another sort, the pair are lost in an amazement of love and friendship and intimacy, and one will not be out of the other's sight, as I may say, even for a moment: these are the people who pass their whole lives together; yet they could not explain what they desire of one another.

[Dan Schiavetta]

Interestingly if you look at the traditional definition of sodomy, it was impossible for lesbians to commit it or even to have "sexual relations" at all. There was no penis to put in any (incorrect) place with an (incorrectly gendered) person.

[David Nieporent]

Sodomy was considered wrong for all of human history

No, it wasn't.

[JoeFromtheBronx]

The justices split in various ways on the details. In a closer case, it wouldn't have been unanimous. Souter had an extended discussion on substantive due process.

[Dilan Esper]

Glucksberg is almost certainly right. The issue isn't whether assisted suicide is good policy; it's whether the Constitution contains a right to get others to help you kill yourself (or, alternative, to consent to be murdered). It doesn't.

Assisted suicide is a REALLY complex issue. There are signs that it has gone too far in countries like the Netherlands and Canada. Oregon's system on the other hand seems to have reasonable safeguards. There's just no way this is a constitutional right.

[Mr. Bumble]

Will any historic decisions be among those released today?

[Syd Henderson]

They should have issued Rahimi today so we could have the two 2nd Amendment cases together. But we do have four cases involving homosexual rights (including Hollingsworth).

[JesusHadBlondeHairBlueEyes]

What disaster those rulings have turned out to be.

[apedad]

I'm surprised to see you say that.

You would have less to whine about (your specialty) if we didn't have those rulings.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog of America's Vestigial Right-Wing Bigots.

[not guilty]

"What disaster those rulings have turned out to be."

It has now been more than two decades since Lawrence v. Texas, 539 U.S. 558 (2003), and Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). When will the Chicken Littles admit that the sky has not fallen since the government has been prohibited from criminalizing same sex coupling/marriage?

[SRG2]

Scalia’s dissent in Lawrence is a masterpiece…of whining hysteria.

An exercise. You read this:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called Jewish agenda, by which I mean the agenda promoted by some Jewish activists directed at eliminating the moral opprobrium that has traditionally attached to being Jewish. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a Jew. See Romer, supra, at 653.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of Jewish observance is “an invitation to subject Jewish persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want Jews as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a religion that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter.

How much credibility would you attach to the writer’s immediately-following assertion, “Let me be clear that I have nothing against Jews”?

[Krayt]

So because some don't want them as scoutmasters because icky, therefore they should be jailed? Does not follow.

[Dr. Ed 2]

If statutory rape is called "icky"....

Gay scoutmasters RAPING SCOUTS almost destroued the BSA.
Rapists should be jailed...

[Martinned2]

Rapists should be jailed…

You say that as if you expect someone to disagree

[ReaderY]

Out of curiousity, I assume that you disapprove of racial preference in vocational contexts.

Do you think a Southerner of the traditional sort would really believe you have nothing against Southerners?

Frankly, do you care what Southerners of the traditional sort think of you?

Because they claimed the Civil Rights laws were nothing more than nosy busy-bodies shoving their morality into other people’s private business out of pure animosity.

Why don’t they get relief from the Supreme Court from the religiously-motivated animosity of people like thr Rev. Martin Luther King Jr. and Co? Because you have friends on the Supreme Court and they don’t?

There has been a long history in this country of people claiming that people who morally disapprove of what they are doing are acting out of hate. As I have written before, the fact that slaveholders and segregationists were the principal architects of this line of rhetoric ought to prevent the Supreme Court from ever relying on it. We know for a fact that partisan zealots can’t see reason in what their opponents have to say. But we also know for a fact that at least sometimes, that’s because their zealotry blinds them, not because reason isn’t there.

The original justification for the Civil Rights laws in e.g. Atlanta Motel was that they are simple morals laws. Congress, in its power to regulate interstate commerce, has the same power to prohibit commercial preferences and relationships it considers immoral that states, with primary power over domestic matters, have to prohibit preferences and relationships in domestic life they consider immoral.

I think this is correct. There is no more reason for the Constitution to regard people who have a hard time functioning and being productive with people of the opposite sex as being a “scourge to be eradicated,” to quote some of the language the Court has used to describe personal preferrence applied to commercial contexts, as there is to regard the Constitution as inherently against domestic sexual preference.

Such laws are no business of the Constitution. If tomorrow, Congress were to change its mind completely, agree that e.g. Southernees are being persecuted for their preferences, and protect the right to vocational sexual preference in employment by prohibiting people or companies with vocational sexual preference from being discriminated against in interstate commerce, such laws would be just as constitutional as the present ones, and would have the same constitutional justification.

The slavery and segregation experience make clear that courts simply aren’t competent to decide, in moral controversies, who is being persecuted. Judges can be relied on to pick their friends as the winners.

If morals laws

[ReaderY]

Indeed, it has always struck me as schitzophrenic that for many years the Supreme Court claimed there is a compelling imterest in seeking diversity in schools and employment, while similtaneously saying any talk of seeking diversity in domestic life is irrational animosity. It seems to me extremely unlikely that, for example, if children are raised in a boarding school rather than at home, their fundamental biology and psychology would so change that the obviously irrational magically becomes the obviously compelling or visa versa.

[Rev. Arthur L. Kirkland]

"Do you think a Southerner of the traditional sort "

You mean . . . bigots?

[SRG2]

There is a fundamental moral distinction to be made between actions involving consent and actions not involving consent.

[ReaderY]

Person A asks person B for a date. Person B says, “I don’t date people of your gender.” Person A gets upset.

Person A asks person B for a job. Person B says “I don’t employ people of your gender.” Person A gets upset.

Why exactly does one act involve consent and the other not? I completely agree it’s within the power of a legislature to draw a moral distinction between the scenarios. But at least from the Martian, bare-objective-facts viewpoint, stripped of layers and histories of assumed social contextual meaning, I don’t see how one can be said to involve consent but the other not.

[David Nieporent]

How much credibility would you attach to the writer’s immediately-following assertion, “Let me be clear that I have nothing against Jews”?

You've misquoted that by truncating the sentence in the middle. What he said was "Let me be clear that I have nothing against [Jews], or any other group, promoting their agenda through normal democratic means."

[JoeFromtheBronx]

Three cases? Are you trying to compete with captcrisis?

Since the Supreme Court regularly decides big cases at the end of the term, it is not surprising there are so many on the list.

Obergefell v. Hodges was a mixture of substantive due process (Kennedy spelled out four reasons for a constitutional right to marry and same-sex couples fit them all) and equal protection.

Kennedy in Lawrence also explained the synergy between due process and equal protection. Many cases involve both. For instance, Gideon v. Wainright was a procedural due process case involving the right to an attorney.

Douglas v. California was an equal protection case about the right to an attorney on appeal. Overall, people honor "Gideon's Trumpet" because they believe a lawyer is needed for the indigent as a matter of equal justice under the law.

Chief Justice Roberts was noticeably angry about the result of Obergefell. He dissented from the bench & argued it was not truly based on constitutional law itself. This was something of a stretch, especially given multiple precedents involving marriage and gay rights. You might not agree with them, but Obergefell was a reasonable application.

Roberts went along without comment in Pavan v. Smith (three justices publicly dissented), a per curiam that applied Obergefell. (Technically, he could have dissented silently, though I find that concept a bit silly.)

[Martinned2]

I think the subtle implication was that the evil Justice Kennedy regularly used to destroy the moral fibre of the nation around this time of year.

[Mr. Bumble]

Gone but not forgotten.

[Michael Resanovic]

"...given multiple precedents..."

Precedents about the constitution should not be confused with the constitution... especially if they are both highly questionable and hardly uncontroversial.

[JoeFromtheBronx]

Alito had a long opinion announcement in the Tennesse Wine and Spirits case. It's rather interesting.

https://www.oyez.org/cases/2018/18-96

[John F. Carr]

This post appeared for me with a sidebar ad asking if I supported expanding the Supreme Court.

[Mr. Bumble]

Did you answer?

[apedad]

O/T

Supreme Court rejects challenge to Biden admin’s talk with social media companies - based on Standing.

The 6-3 decision does not address the First Amendment issues at the center of the cases and instead denies the challenge filed by two Republican attorneys general and private parties by finding they didn’t have legal standing to bring it.

“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different conduct,” Justice Amy Coney Barrett wrote for the majority. “This Court’s standing doctrine prevents us from ‘exercising such general legal oversight’ of other branches of Government.”

[SMP0328]

Lawrence v. Texas, 539 U.S. 558 (decided June 26, 2003): Texas statute prohibiting same-sex genital contact struck down as violating Due Process clause (of course it was gay male couple getting arrested; laws against gay sex were hardly ever enforced against lesbians); distinguished Bowers v. Hardwick, 1986, with the excuse that only 13 states now prohibited gay sex

No distinguishing. Bowers v. Hardwick was expressly overruled.

[Dan Schiavetta]

Not expressly, but "sub silentio". The Court hates to admit it's overruling itself.

Note that I said “excuse”, not “rationale”. I could have said “lame excuse”.

[David Nieporent]

No, expressly.

"Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

[Dan Schiavetta]

Sorry -- I went back and read it and you're right.
One wonders -- what if Powell's clerk had "come out" not only to him but to the rest of the Court? Would Bowers have been decided differently, now that the Court could no longer pretend they were dealing with a "weird", remote and abstract group of people? (Of course, he wouldn't have done that, the clerk had his own career to think about, not the wellbeing and liberty of millions of Americans, but one still wonders!)

[Rev. Arthur L. Kirkland]

That's hard to gauge. Sometimes, bigots improve, for varied reasons. Other bigots never get better. They tend to get replaced by better people, though.

[JoeFromtheBronx]

Powell later said he made a mistake.

His brief concurrence suggests a possible limited ruling that applies only to criminal laws involving consensual sexual relations.

[Dan Schiavetta]

As in, those cases, leave them alone.