Winning ugly: the Court's same-sex marriage rulings, Part II

In my post yesterday, I explained my view that the Supreme Court's decision this week in United States v. Windsor was an "ugly win" -- a victory for gay rights, but a victory that is heavily qualified and that came at the expense of good legal craft.  I also suggested that the ugliness of Windsor might have been by design and might even have been necessary.

Hollingsworth v. Perry was an ugly win too, probably for many of the same reasons, although Perry was in some respect both less ugly and less of a win than Windsor.  At issue in Perry was California's Proposition 8, a voter initiative that amended the state's constitution in 2008 to legally define marriage as a union between one man and one woman.  (California permits same-sex "domestic partnerships," which carry the same legal rights and obligations as marriage without the name.)  Same-sex couples wishing to marry in California sued the state in federal court, claiming that Prop. 8 violated both the equal-protection and due-process guarantees of the federal Constitution.  The district court ("district court" is the name for trial courts in the federal system) issued a sweeping opinion ruling for the plaintiffs, asserting that Prop. 8 should be subjected to strict scrutiny (for an overview of levels of scrutiny, see yesterday's post) and holding that the law failed to survive even the more-deferential rational-basis review.  On appeal to the Ninth Circuit, the Court of Appeals affirmed the district court's ruling, but on substantially narrower grounds, holding that because Prop. 8 deprived same-sex couples of a then-existing right to marry for no good reason, it could only have been motivated by animosity against homosexuals, which is not a legitimate state interest under the Romer decision (also discussed in yesterday's post).

We have a pretty good indication from Windsor that five current Justices (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) believe that laws prohibiting same-sex marriage violate the Constitution.  So it was well within the realm of possibility that a majority of the Court would rule against Prop. 8, either on the broad grounds employed by the district judge or, more likely, on the narrow basis relied upon by the Court of Appeals.  But of course that's not what happened.

Instead, three of the Court's center-left Justices (Ginsburg, Breyer, and Kagan) joined with two conservatives (Scalia and Chief Justice Roberts) in an opinion dismissing the appeal for lack of what lawyers call "standing," that is, capacity to pursue a claim or an appeal in federal court.  And while Roberts's opinion for the Court is a finer specimen of legal argument than Kennedy's in Windsor, it's hardly a Holmesian model of persuasion.

Winning ugly: the Court's same-sex marriage rulings, Part I

I don't take naturally to blogging, as will be obvious to anyone who's tried to follow this blog since its inception earlier this year.  I suppose I'm too verbose for the blogging format; I persist in thinking that lots of things are too complicated to explain adequately in a few quickly composed paragraphs.  That, and I'm not a very good on-the-spot thinker.  It usually takes me a while to organize my thoughts enough to say something even marginally worthwhile and to say it well.

And then sometimes there's an additional problem:  I find myself feeling profoundly ambivalent about something I know I should post on, and thus struggling for something incisive to say about it.

This is the difficulty with the Supreme Court's same-sex marriage rulings yesterday, and it's the reason I haven't managed to post about them until today.  As someone who supports gay rights (including same-sex marriage) in a moral sense, and who believes they properly find some protection in the Constitution in a legal sense, I celebrate yesterday's results.  But as someone who cares about legal craft -- about not just what courts decide but how they decide it and justify that decision in writing -- I'm disheartened by the decisions that produced those results.

To indulge a sports metaphor, these were ugly wins for gay rights.  The best team won, but it relied on sloppy play and some questionable calls by the umpires.

And to make matters worse (or at least more complicated), there are, on reflection, very good reasons for the sloppiness of the decisions, or at least for most of it.  It may in fact be the case that winning ugly was the only way to win at this stage of the game.

In this post, I want to focus on what is in some ways the most frustrating of the two decisions:  United States v. Windsor, in which the Court, by a five-to-four vote (dividing along predictable ideological lines), held that part of the federal Defense of Marriage Act (DOMA) violates the Constitution's equal-protection guarantee.  Unlike in the other case, Hollingsworth v. Perry -- more on Perry in a subsequent post -- the Court in Windsor directly resolved the core constitutional issue posed by the litigation.  The frustrating part -- the ugly part -- is the reasoning (if it can be called that) that the Court, in the person of Justice Anthony Kennedy, used to resolve the issue.  Kennedy's opinion was, with all due respect (and much is in fact due -- again, stay tuned), so thinly reasoned and so riddled with red herrings that I would have required a rewrite if it had been a student paper.

The DOMA provision invalidated in Windsor in essence prohibited recognition of same-sex marriages for purposes of federal law.  The plaintiff, Edith Windsor, married her same-sex partner in Canada while both were residents of New York; New York law recognized their marriage as valid (and has since been changed to allow same-sex marriages to be performed in that state).  When Windsor's spouse died, Windsor, thanks to DOMA, was denied the federal estate-tax exemption that applies to surviving spouses.  She paid the resulting $363,000 tax and then sued the government, claiming DOMA's denial of her tax exemption violated her constitutional right to the equal protection of the laws.

A majority of the Court -- Kennedy, joined by the four Justices on the center-left of the Court (Ginsburg, Breyer, Sotomayor, and Kagan) -- agreed with Windsor.  But Kennedy's opinion for the majority meandered blithely around the central issues and stated its conclusion almost as fiat.  Reading it reminded me of long car trips taken with my family as a kid; I'd be half-asleep for most of the way, lulled into drowsiness by the rhythmic hum of the engine, and would awaken suddenly to find us at our destination, with little clue about exactly how we got there.

Who watches the watchmen? The Court's gutting of a "crowning achievement of the Civil Rights movement" (and, not incidentally, Congress' power to enforce civil rights)

So the Voting Rights Act decision is in. In Shelby County v. Holder today, the Court invalidated section 4 of the VRA, which determines which states and localities are subject to section 5. (Section 5 is the operative provision of the Act; it requires states and localities identified pursuant to section 4 -- in practice, states and localities with a history of racial discrimination in voting, most of them in the South -- to obtain "preclearance" from the Justice Department before altering their voting policies.) Based on Adam Liptak's report in the N.Y. Times, it appears the five-Justice majority (the predictable suspects: Roberts, Scalia, Kennedy, Thomas, Alito) held that Congress could not continue to rely on voting data compiled in the 1960s in renewing the list of states identified by section 4, as Congress did most recently in 2006. As Liptak's article points out, the ruling technically leaves Congress free to reauthorize section 4 based on more-recent data; but the currently polarized Congress is highly unlikely to do that anytime soon. The result is that section 5's preclearance requirement is now meaningless, as there are no states or localities identified by section 4 to which that requirement can be applied.


There are a number of troubling things about this ruling, but the most troubling to me is the self-interested shift of constitutional power from Congress to the Court that the ruling manifests. The Fifteenth Amendment to the Constitution prohibits racial discrimination in voting by the states (or the federal government) and, in section 2 of that Amendment, gives Congress "the power to enforce" its provisions "by appropriate legislation." Section 5 of the Fourteenth Amendment similarly grants Congress power to enforce the important operative provisions of that Amendment, including its guarantees of equal protection and due process of law. But the Court, under the banner of states' rights but, one suspects, worried in fact about its own authority as the arbiter of constitutional meaning, has from the start been parsimonious in interpreting the scope of Congress' powers under these provisions. Under the Court's current doctrine, Congress cannot exercise its section 2 or section 5 enforcement powers unless it does so in a way that is "proportional" to and "congruent" with the denials of rights by the states that Congress is trying to remediate or prevent. In practice, this means the Court itself retains the authority to say, in essence, whether the problem Congress is trying to redress is severe enough to justify congressional action, and whether the action Congress has taken is an appropriate way to redress the problem.


Today's ruling continues this trend. By negating congressional enforcement under section 2 where that enforcement is not backed up with current data about on-the-ground voting practices, the Court is in essence subjecting Congress to a heightened level of scrutiny when it wields its civil-rights enforcement powers. It isn't enough, apparently, that Congress has a rational, reasonable argument that threats to voting rights still exist and that preclearance in these states is an effective way to meet those threats. Now Congress must actually prove its case to the courts before it can exercise its constitutionally delegated authority.


I think this has it exactly backwards. It makes sense to require the government to affirmatively establish a strong justification whenever it acts to deprive someone of a constitutionally guaranteed right -- although even in rights cases, as any 1L Con. Law student knows, the Court is very deferential to the government in all but a handful of contexts. But it makes little sense to require the government to affirmatively establish a strong justification whenever it acts pursuant to one of its constitutionally granted powers -- particularly when the power in question was granted precisely for the purpose of preventing or remediating rights violations by the state governments. The whole point of section 5 of the Fourteenth Amendment and section 2 of the Fifteenth Amendment was to allow Congress, using general legislation, to bypass the cumbersome process of litigation in the courts that otherwise would be necessary whenever voting or other rights are violated. By subjecting congressional enforcement of voting rights to what is essentially heightened judicial scrutiny, the Court substantially defeats that constitutional purpose.


Worse, the Court does so in a way that enhances its own institutional power. Under current law (as magnified by today's ruling), Congress in effect must get the Court's permission before enforcing voting rights, permission that (today's decision suggests) will not be forthcoming without a well-developed and contemporaneous factual record. Presumably even a statute that passes muster would have to be revisited by Congress every few years, lest the factual basis for the statute go stale. The result is a substantial shift of constitutional power from Congress to the courts, one that parallels what the Court has been doing to Congress' power to regulate commerce since the early 1990s.


The Court's legitimacy is on its firmest ground when it acts as a relatively impartial arbiter of disputes between the government and its citizens, disputes that the political branches themselves cannot be trusted to resolve because their own authority is at stake. Of course, every time the Court invalidates some state or federal statute, in some sense the relative power of the Court is enhanced. But this becomes a serious problem when the very subject of the dispute is the Court's own power; in such cases the Court cannot claim to be a relatively neutral arbiter. By subordinating Congress' authority to enforce civil rights to its own supposed authority to interpret the scope of those rights, the Court opens itself to reasonable charges that it is simply playing power politics.


Who watches the watchmen?

And now for something completely different ...

Departing momentarily from my breathless anticipation of SCOTUS's same-sex-marriage and Voting Rights Act rulings, allow me to recommend this trenchant post from Stanley Fish (not that he needs my recommendation).

Fish decries the failure of humanities teachers (and liberal-arts teachers more broadly) to carefully describe the value of the threatened enterprise in which they are engaged.  He cites a recent pro-liberal-arts report by the Academy of Arts and Sciences as a case in point.

Reiterating a common theme in his blog posts for the Times, Fish suggests that there is a kind of noninstrumental value in studying the humanities, as "a cloistered and separate area in which inquiry is engaged in for its own sake and not because it yields useful results."  Maybe so, but emphasizing the monastic nature of the enterprise is hardly an effective way to sell it to a skeptical, penny-pinching public.  And anyway, I think there is much more to be said in defense of the humanities.

Much more to be said, in fact, than can comfortably fit into a single blog post.  (And I'm supposed to be on vacation.)  But allow me to suggest in rough outline two central social goods that can flow, under the right conditions, from liberal-arts education.

First, liberal-arts education can teach young people to think and communicate effectively, skills that are every bit as valuable in a global economy as know-how in math and science.  As Fish intimates, the abilities to think analytically, and to communicate effectively the results of one's thinking, are threatened not just by the ongoing deemphasis of the humanities, but also by other forces, some internal to our educational system and some external.  Government education funding depends increasingly on quantifiable performance metrics, which in practice means standardized tests, which in turn pushes K-12 schools (and increasingly colleges) to "teach to the test" -- emphasizing discrete parcels of knowledge that are susceptible to multiple-choice assessment along with tactics for "gaming" the tests themselves.  The Internet, with its "preference for chunked-up bits of information" (Fish's apt phrase), has become our primary source of knowledge.  Texting and e-mailing, which reward informality and spontaneity and make physical proximity irrelevant, have replaced letter-writing (and increasingly even face-to-face conversation) as our primary means of communication.

I see the results of these forces in my law school classrooms.  Students are every bit as bright as they were ten or fifteen years ago, but on average they are noticeably less well-prepared.  The act of reading carefully for content and context often flummoxes them; indeed the very point of the enterprise often escapes them.  The notion that information they are fed by "authority" figures (including their professors) might not be fully trustworthy or comprehensive rarely occurs to them.  The ideas that there might be multiple viewpoints regarding an issue, or multiple reasonable arguments about the proper resolution of that issue, strike many of them as unnatural.  The capacities to develop an argument based on evidence and to communicate that argument in an effectively orderly manner typically must be learned almost from scratch.

Liberal-arts education, if done well, can lay solid foundations for each of these important skills.  In reading literature or history, a student is not just (or even primarily) absorbing a set of facts; she is developing the capacity to understand complex ideas and arguments, to evaluate those ideas and arguments for strengths and weaknesses, and to identify in them potential biases and information gaps.  In writing about literature or history -- a key component of a good liberal-arts education -- the student is learning to organize her own thoughts into a careful analysis based on evidence and to present that analysis in a way that can be understood by and persuasive to others.

These skills in analytical thinking and communication are not luxuries; they are core components of a person's ability to contribute to society.  Not everyone needs them in the same degree -- the world does need scientists, mathematicians, and engineers, after all -- but everyone should have them to some degree.  Even scientists and engineers need to be able to evaluate others' work and to present their own work to others.  No wonder a majority of Fortune 500 executives would choose a liberal-arts education for their own children, according to the AAAS report.

Which leads me to the second central point:  Analytical thinking and communications skills among the citizenry -- and the educational methodologies that cultivate them -- are crucial to a well-functioning democracy.  To put it more bluntly:  Liberal-arts education is essential to democracy.  The core democratic premise of fundamental political decisionmaking by the people themselves -- not by a disconnected, unaccountable elite -- becomes unobtainable, unrealistic, chimerical if many or most of the people themselves cannot effectively absorb, understand, and evaluate information, reach reasonable conclusions based on that evaluation, and communicate those conclusions effectively to other citizens.  These are the skills a liberal-arts education can teach.  And they are fading fast in our instant-gratification, hands-off-my-pocketbook, what-have-you-done-for-me-lately society.

Fisher v. University of Texas -- a very brief reaction while on vacation

I’m on vacation and have only skimmed the Fisher opinions, but it doesn’t look like much has changed as a result of this case.

The Court said the 5^th Circuit failed to really apply strict scrutiny by essentially deferring to the University regarding whether (and how much) race-consciousness was necessary and scrutinizing the program only for “good faith,” which I guess means that the asserted diversity objective is in fact genuine (as opposed to some insidious motive, e.g., racism or attempting to gain a racial advantage).

The 5^th Cir. can be forgiven for its deferential posture, I think, given that the language of O’Connor’s opinion for the Court in Grutter suggested that a certain amount of deference to the judgment of professional educators was appropriate.  Nonetheless, it’s understandable and not at all surprising that the current Court majority would think some more-exacting scrutiny of means is required.

But of course the Court still hasn’t given us any sort of formula for what kind of exacting scrutiny is needed.  Kennedy’s opinion for the Court says we need to ask whether the means chosen are “‘necessary’ … to achieve the educational benefits of diversity.”  But there’s not much discussion of what this might entail.  Which, again, is not surprising, partly because an in-depth explanation would require a good explanation of precisely what the “educational benefits of diversity” really are (which, even if Kennedy were willing to embark on such an explanation, probably would have scared off some of the more-conservative Justices); partly because the Court continues to reject “quotas” or other quantitative measures of diversity; and (largely for this latter reason) partly because the narrow-tailoring assessment inevitably will be extremely fact-sensitive.

So the application of strict scrutiny in these cases will remain a matter of “I know it when I see it”:  If you can convince five Justices on the Court (or, in most cases, two judges on a Court of Appeals) that a program is not truly “necessary … to achieve the educational benefits of diversity,” whatever they are and whatever that means, then you can win your challenge.  Nothing really new here.

This case also reaffirms that Kennedy is on the fence about of affirmative action – he’s not against it in theory, but he hasn’t found an actual example of it that he likes.  We knew this from his opinions in Grutter and Gratz and has subsequent opinion in Parents Involved, and his opinion here tells us that nothing’s changed.

And this case reaffirms that Scalia and Thomas will vote against any affirmative-action program, although Scalia was uncharacteristically coy about stating that in his brief concurrence.

The main thing this case adds to our understanding of the issue is that Roberts is not categorically opposed to affirmative action – all indications are his stance is closer to Kennedy’s than to Scalia’s and Thomas’s (otherwise presumably he would have joined one of their opinions or written a separate concurrence).  So that’s modest good news for affirmative-action supporters.