Twitter Shutdown: A Violation of Free Speech?

The question has been raised whether Donald Trump’s rights have been violated by the recent decision of Twitter to impose a permanent ban on his account.  This follows similar action by Facebook and is happening at the same time as other technology companies are refusing to do business with the conservative website Parler.

The First Amendment of the U.S. Constitution protects against prior restraint of speech by the government.    

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” USCS Const. Amend. 1

The right of free speech secured by the Constitution does not prohibit a private actor, such as Twitter, from controlling the speech on its website. It only protects against the government restricting speech.  However, even with government action the right has its limits.  The Supreme Court has upheld restrictions on free speech when it felt that those restrictions were justified by an argument that the government was threatened.

In Dennis, a case where a group of communists were convicted of violating the law by passing out printed materials that promoted communism, the U.S. Supreme Court said that the First Amendment was not violated by criminalization of political speech that promoted communism and wrote:

“Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.” Dennis v. United States, 341 U.S. 494, 509, 71 S. Ct. 857, 867 (1951)

            The Dennis case was one in a line of cases where criminalization of political speech by communists and socialists was upheld by the Supreme Court.  Interestingly, Dennis was later partially overruled in a case involving the free speech rights of Ku Klux Klan members in Ohio, in which it upheld the free speech rights of the Ku Klux Klan, where the Court wrote:

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 1829 (1969)

To many Americans, myself included, it appeared the statements of Donald Trump and the actions his supporters last week were intended to overthrow the government and to encourage imminent lawless action. One viral video of a woman named Elizabeth, who was maced by Capitol police, shows her saying that she viewed the Capitol takeover as the beginning of a revolution. 

“We’re storming the Capitol, it’s a revolution..”

Additionally, there is no government restraint on speech since Twitter, Facebook, and the companies that either host or provide access to the Parlar site are not government actors, but are private entities.  Private entities are not subject to the First Amendment’s guarantee of free speech.  Only the Government can violate the First Amendment. Therefore, the tech companies have not committed a First Amendment violation by shutting down these accounts, especially given the exceptional circumstances that led to their action.    

The Supreme Court: An Institution for the 21st Century?

US Supreme Court

The death of Supreme Court Justice Ruth Bader Ginsberg has set off a political battle that could tear apart the already severely frayed fabric of American political and social life.  Supposedly insulated from political influence by lifetime tenure, Judicial appointments have become political prizes, giving rise to partisan battles that are increasingly leaving long-lasting scars on our democracy and the legitimacy of our legal system.

It is easy to understand why appointments to the United States Supreme Court have become such a hot-button political topic.  The Court consists of 9 justices, who serve for life.  Short of a Constitutional Amendment, Supreme Court decisions are the final word on Constitutional interpretation and are the law of the land. 

the Supreme Court is the most exclusive and powerful club in American society

The makeup of the Court is worth examination. At the present time, all the members are graduates of either Harvard or Yale Law Schools. None of the other 202 American law schools has a graduate on the Court.  Two of the Justices, Kavanaugh and Gorsuch, both attended the same private preparatory school.  All the current justices were raised either Catholic or Jewish (Justice Gorsuch was raised Catholic, but now identifies as Episcopalian).   In the history of the Court, only four women, and two African Americans, have been appointed.  With the death of Justice Ginsberg, there are two women remaining.  Justice Thomas, the only African American, is also its longest-serving Justice at 29 years. Justice Sotomayor is the first Hispanic member.  Of the 4 women who have served on the Court, 2 were appointed by President Obama and have both served approximately 10 years.  As Justice Scalia once recognized, the Court does not well reflect the diverse demographics of the nation it serves.  There are no evangelical Christians. Most are from the East or West Coast.  All went to private schools or elite public schools.  There has never been a Mormon, Muslim, or openly homosexual member.   It is not an exaggeration to say that the Supreme Court is the most exclusive and powerful club in American society.

Supreme Court Appointments Have Become Political Side-shows

American Supreme Court Justices have historically served an average of approximately 17 years.  The longest tenure of a Justice on the Supreme Court was William O. Douglas who served just short of 37 years from April 1939 through November 1975. The shortest was Thomas Johnson who served only 163 days, from August 1792 through January 1793.  Ruth Bader Ginsberg was the longest serving female at approximately 27 years on the Court.

Most nations in the developed world do not seem to have the political struggle over their Courts that we see in the United States.  In an effort to see what they’re doing differently, and to try and understand why judicial appointments are such a high stakes game in the United States, I thought it would be interesting to examine other developed nations and compare how those nations select the Judges to sit on their highest Courts and the length of time those Judges serve.  What I found when looking at the data, is that our Court is unique in its small size and the lifetime appointment of justices. 

Highest Courts of the World

NationNumber of JusticesTermHow appointedPopulationJustices per capitaRule of Law Ranking
United States Supreme Court9LifePresident, confirmed by the Senate328,200,0001 per 36,466,66621
Constitutional Court South Africa1212 years or age 70President choses from a list from the Justice Service Commission57,780,0001 per 4,815,00045
New Zealand Supreme Court6Mandatory retirement at age 70Selected from the Court of Appeals4,886,0001 per 814,3337
Supreme Court of Canada9Mandatory retirement at age 75Appointed by the Governor in General Counsel37,590,0001 per 4,176,6679
Supreme Court of the United Kingdom12Mandatory retirement at 70Appointed by the House of Lords66,650,0001 per 5,554,16613
Federal Constitutional Court – Germany1212 years, mandatory retirement at 68Selected by the legislature upon a 2/3 vote83,020,0001 per 6,918,3336
Court of Cassation (France)1229 year non-renewable termappointed by the president of the republic from nominations from the High Council of the Judiciary66,990,0001 per 549,09820
Supreme Court of Justice of the Nation (Mexico)1115 yearsRatified by the Senate from a list proposed by the President126,200,0001 per 11,472,727104
Supreme Court of Israel15Mandatory retirement at age 70Appointed by the President from a list of names provided by the Judicial Selection Bureau9,254,0001 per 616,933
Supreme Court of Iceland7Life tenureQualifications Committee recommends names to the President364,1341 per 52,019
Supreme Court of Denmark18Mandatory Retirement at 70Appointed by the Minister of Justice upon the recommendation of the Independent Board of Judges5,806,0001 per 322,5551
Supreme Court of Norway20Mandatory Retirement at 70Appointed by the King5,432,5801 per 271,6292
Supreme Court of FinlandAt least 15 (Currently 18)Mandatory Retirement at 68Appointed by the President5,528,7371 per 307,1523

As you can see from the data, the United States Supreme Court has both numerically and proportionately, far fewer Judges on our highest Court than most other nations in the developed world that I looked examined. 

The ratio of Justices on the United States Supreme Court to the size of the nation’s population (1 Justice for every 36 million Americans) is far higher than any other nation on my list.

The ratio of Justices on the United States Supreme Court to the size of the nation’s population (1 Justice for every 36 million Americans) is far higher than any other nation on my list. Indeed, the closest to the United States is Mexico, with 1 justice per 11.5 million people, but that still gives a Mexico 3 times as many justices relative to the size of its population to the United States.  The remaining nations have an average of one justice per 2.4 million people.  Clearly, given the size of the population it serves, the United States Supreme Court is extremely small when compared to all other nations.  This small number of Justices tremendously increases the value and influence of each appointment. 

Supreme Court in Denmark – The Nation Ranked Highest on the Rule of Law Index

Looking at American History, there is also evidence that the ratio of Justices per population has greatly increased over time. The Court began with six justices who served a population of 3,929,214.  This produced a ratio of 1 Justice per 654,869 people.  Since 1869, the Court has consisted of nine justices.  The 1870 census counted a population of 38,558,371 people.  This produced a ratio 1 Justice per 4,284,263 people, which is similar to what we see today in nations such as Canada and the United Kingdom. 

The other relatively unique characteristic of the U.S. Supreme Court, and all Federal Judges in the U.S. system, is lifetime appointment.  Only one other nation that utilizes lifetime appointments is Iceland.  However, Iceland, with a small population of 325,000 people, also has the best ratio of justices to the population with 1 justice per 52,019 people.  Apart from Iceland and the U.S., all other nations have some form of term limits or mandatory retirement age for justices.  Fixed terms, either by age limits or tenure limitations, remove the uncertainty in how long a particular Justice will serve.  The anxiety that exists in American society and politics today that a Judicial appointment is a decision so fixed in stone that one may not live long enough to see change is a driving force in the politicization of Supreme Court appointments. I believe it is also driving the trend to appoint younger, less experienced, judges who are chosen based upon membership in organizations such as the Federalist Society, rather than demonstrated experience.  Our current system allows Justices to remain on the bench far beyond typical retirement age such as in the case of Justice Ginsberg whose death at the age of 87 ended her tenure. 

The Supreme Court is the Last Word on the Constitution

The small size of the Court, along with the potentially long tenure of the Judges, makes each appointment an opportunity to wield influence and leave a legacy that can last decades into the future.  This gives Presidents enormous power in their appointments because as few as two justices can significantly alter the dominant philosophical nature of the Court. 

…we are now classified as a nation where the Rule of Law is declining

The next issue I examined is what impact does a small court with life-long judicial tenure have upon the quality of justice in the United. To look at how the U.S. legal system is faring I examined the “Rule of Law” index complied by World Justice Project, a respected non-partisan organization that collects and ranks data related to the health of the rule of law in nations around the world . According to the Rule of Law index, the United States is ranked 21st out of 128 nations worldwide.  This is a respectable score that puts the United States well above the worldwide average.  What did concern me, and should concern all Americans, is the changes happening in American law which have resulted in the United States in a declining score such that we are now classified as a nation where the Rule of Law is declining. 

What does this mean for our Democracy? Are we truly imperiled?  Looking at the data we see that, at 221 years, the United States is the world’s oldest democracy.  Although many countries are older than the United States, which is a relatively young nation, we have the oldest constitution in the world.  Looking at the Democracy index published by the Economist Intelligence Unit, the United States is ranked 25 out of 167 countries and is classified as a “flawed democracy”.

What is interesting is the correlation between nations which score highly on the Rule of law index and those who score highly on the Democracy Index.  The top three nations on the Rule of Law index were #1 Denmark, #2Norway, and #3 Finland.  On the Democracy Index, Norway took top place, Finland was fifth, and Denmark was seventh.  Looking at the data, it does appear that a healthy rule of law and a healthy democracy exist together. 

In discussing the Court, I would be remiss to ignore the fact that the Court has only the power of its own judgment. There are no juries at the U.S. Supreme Court because it decides only issues of law and makes no factual determinations such as guilt or innocence. In many ways it is the most undemocratic branch of our democracy because its decisions are not up for review by the voters and its members cannot be removed at the ballot box.  It has no police force, no army, no secret service to enforce its decisions and enforce its rulings. The Court has only our willingness to be ruled by its decisions.  Therefore, the perceived legitimacy of the Court is foundational to the rule of law and health of our democracy. 

There are calls in the American by press to expand the Court to counterbalance “conservative” court packing and denial of democratic appointments by Senator Mitch McConnell.  The public perception that the Court is being stacked threatens to greatly diminish, if not destroy, the perceived legitimacy of the Court by many Americans for a generation.

 Each year the Court is asked to review more than 7,000 cases, but only agrees to hear 100-150 cases. 

I believe that the Court should be expanded, but for different reasons. As the data shows, we have far too few Justices for the size of the U.S. population.  Each year the Court is asked to review more than 7,000 cases, but only agrees to hear 100-150 cases.  Comparing this number to 1880 when the Court received only about 500 cases filings per year (I haven’t been able to determine how many cases were decided in 1880), but was the same size it was today, it obvious that the demands on the Court have grown exponentially while the Court’s size has remained fixed since the 19th century.

The US Supreme Court Has Remained the Same Size Since the Era of the Steam Engine.

The time has come to modernize this institution.  We should not allow our democracy and legal system to strangle itself on tradition and partisan wars. The U.S. Supreme Court needs to be expanded.  Healthy democracies with a strong rule of law have approximately one justice per 5 million people.  To reach half that number, we would need to expand the U.S. Supreme Court to 33 Justices.  Ideally, we should have more than 60 Supreme Court Justices, but I hesitate to even dream of such a large court.  I do not envision that all these justices would hear all cases, but that there would be rotating panels of odd numbers of justices sitting on the bench, allowing a greater number of cases to be heard and decided.  This would parallel what is already being done in both State and Federal Appellate Courts throughout the United States. 

Expanding the size of the court would not only improve access to the Court, but it would also reduce the value of each individual appointment and temper the political implications of those appointments.  There would be an increased rotation of Justices joining and leaving the Court, such that any President would be making several appointments during their term and Senate Confirmations would become a more routine event.  

Regarding age-limits, I do not personally favor such limits because we are living longer healthier lives and I have seen many individuals who can function well in a courtroom despite very advanced age. However, I do believe that there should be safeguards for poor health and incapacity.  

Lifetime appointments are a characteristic of monarchies, not of democracies.

I can see value in tenure limits such that Judges are limited in their time on the Court.  The Supreme Court itself should be the institution, not the individual justices.  The legitimacy of the Court should never rise and fall on any individual justice.  Lifetime appointments are a characteristic of monarchies, not of democracies.  However, to implement this change, the U.S. Constitution would need to be amended, which is probably unlikely at this time.

We can choose progress or stagnation

Beyond an increase in the judicial payroll, there would be a cost to the changes I am proposing. That cost would a loss of intimacy. With only nine members, the Supreme Court is our most intimate institution.  Its members sustain over long periods of time. Some, such as Ruth Bader Ginsberg, achieve rock star like status is American popular culture.  For Court watchers like me, it is like watching a sports team where you know the player’s and the outcome of each game is carefully studied. I expect a larger court, rendering more decisions, would be more challenging to follow.

In closing, change is inevitable in governments and the law.  Our Supreme Court has remained relatively unchanged for more than 150 years.  It is time for us to reexamine our highest court and the needs of a 21st century nation.  We need to take heed of those who measure us to be a “flawed democracy” and the decline in our rule of law.  I believe we are at an inflection point in American history and the road we chose will determine whether we restore ourselves as an example of a healthy democracy with a strong rule of law, or as a nation that became so mired its own traditions that it failed to change with the times and lost itself in the process.       

Confirmation Chaos

I haven’t watched very much of the Senate confirmation hearings of Supreme Court appointee Judge Kavanaugh.  The few minutes that I did watch were so awful that I had to turn away and get my mind someplace else.  The confirmation hearings have degraded into a side-show spectacle of partisan politics that are undermining the legitimacy and authority of the once majestic United Supreme Court which is supposed to sit above politics and be an institution of reason that our nation can turn to with its most important and difficult legal questions.  In order to serve its role, the Supreme Court must be a court of all the people – Republicans, Democrats, Conservatives, Liberals, Progressives, Capitalists, Socialists, Black, White, Asian, the Religious and the atheist.  It is clear that many Americans, including many of our elected representatives, no longer see, and maybe no longer desire, an apolitical court.

I don’t know much about Judge Kavanaugh or whether he’d be a good Supreme Court Justice.  The truth is, it’s impossible know how well a Justice will perform until the robe is put on because, once on the bench, Supreme Court Justices often surprise us.  Consider that the most famous dissent in Supreme Court history was written by Justice Harlan in Plessy v. Fergusen, the case that, in a 7-1 decision, upheld segregation and created Jim Crow based upon the decision that “separate was equal”.  Most scholars and historians now view it as one of the worst decisions in the Court’s history.  If I had lived back then and looked at that Court, I doubt that I would have expected Justice Harlan to have been the lone dissenting voice of reason.  Justice Harlan was a supporter of slavery prior to the civil war and had grown up on a farm that owned slaves, yet he was the lone dissent in Plessy and other cases where the Court denied equal rights for Black Americans.

Also, it might surprise some to learn that when Justice Ruth Bader Ginsberg was going through her nomination process, there were those who were concerned that she might pose a threat to the decision in Roe v. Wade based upon statements she had made criticizing the decision during a speech.  Justice Ginsburg had commented that she thought the reasoning was incorrect, and that, although she agreed with the outcome, she felt the case should have been decided on equal protection grounds rather than on privacy.  These concerns did not cause great disruption in her appointment and she was confirmed by a 96-3 majority in a Congress that only had a slight majority of Democrats. Also, it’s important to note that it was Justice Scalia who recommended that President Clinton appoint her to the Court.

Speaking of Justice Scalia, it is well known that he and Justice Ginsburg became very close friends while on the Court together.   Justice Scalia, despite his clearly Conservative jurisprudence, was confirmed in a unanimous vote by the Senate that was composed of only a slight majority of Republicans.

Supreme Court appointments have become far too political and we’re seeing the result of this with this awful disgraceful confirmation hearing where  we see open warfare being waged between Senators who insult each other and many Americans in their comments. Part of the problem is that politicians are making promises to appoint judges who will produce politically favorably outcomes to hot button topics such as abortion.  This damages the process because it undermines our faith that we can come to our Courts and receive a fair hearing before a neutral judge.

The other issue that is lingering in the background of all this is Democratic anger and resentment over the Republican refusal to give a hearing to President Obama’s appointment of Merrick Garland.  Keep in mind, it wasn’t just Merrick Garland, the Republicans also refused to hold hearings on many of President Obama’s appointments to the lower Federal Courts, leaving many judicial positions unfilled.  Adding insult to injury, since gaining the Presidency, the Republicans have been basically packing the Courts with appointments of individuals, largely drawn from the ranks of the uber Conservative Federalist Society, who some feel are patently biased or unqualified judges. This unprecedented obstruction of a President Obama’s appointees, followed by gleeful court packing, has  greatly deepened the political divide in our government and our nation.  Furthermore, it undermines the dignity and the moral authority of our Judicial system.  I fear that it will take a generation before this wound is healed, provided the political divide does not consume our democracy and the rule of law before the healing can take place.

Lastly, as I listened to the Senators speak about each other, I felt a great sense of loss.  Senators spoke about each other and their political rivals as if they were discussing a foreign enemy rather than fellow Americans.  As I watch the rule of law being weakened by a profoundly dysfunctional government and witness a nation that it is tearing itself apart from within, I cannot help but feel that we at great risk of losing all that ever made America great.

Scalia’s Legacy of Civility

The death of United States Supreme Court Justice Antonin Scalia is an unexpected and massive change in the American legal and political landscape.  Consider for a moment the length of Justice Scalia’s tenure on the Court.  He was appointed in 1986 by President Regan and served for nearly 30 years.  His time on the bench spanned 5 Presidents.  He joined the Court while Thurgood Marshall, the first Black Supreme Court Justice, was still a member and the first female justice, Sandra Day O’Connor, had only joined the Court a few years earlier.

It is ironic that Justice Scalia, who joined the Court during a time of modernization and diversification, has become iconic to many for being antiquated in his thinking and unreasonably rooted in the past.  For Justice Scalia, the answer always seemed to begin with the question, “What did the framers intend?”  It always seems to me that Justice Scalia rejected the idea that one generation should interpret the constitution any differently than the generations that came before it.  In legal circles he is what we call a “textualist”, that is, he looked, almost exclusively, to the text of the Constitution.  Emerging understandings of justice and human rights had no place in his analysis. When interpreting the Constitution, his approach was to always seek to understand the issue from the perspective of the framers and view the issue from the perspective of the 18th century.   His answer to injustice, as viewed from the modern world, contained within the Constitutional text, wasn’t reinterpretation based upon new understanding, but amendment.  I think it is fair to say that he did not see the Constitution as a living document, but as a static piece of writing.

I believe that the accurate perspective of Justice Scalia is to view him as a fundamentalist.  He did not seek out deeper meaning in the text, but simply viewed it at its most fundamental level, looking at little more than the simplest meaning of the text.  He was not one to look at the spirit of the language or the document.  In his opinions, especially his dissents, he writes as if problems of unjust outcomes are beyond his and the Court’s concern.  One can’t help but read is writings and wonder if he lacked compassion, or if empathy was lost at the expense of his adherence to dogma.

This is not to say that Justice Scalia never raised thought-provoking questions or persuasive arguments.  Many times I’ve read his writings in which he argued positions with which I disagree, but I came away thinking that he raised interesting arguments.  Sadly, I often can’t help but wonder if his arguments would have been more compelling absent his often denigrating statements about those justices and people who disagreed with him. 

Perhaps the most interesting thing to me about Justice Scalia is his close friendship with Justice Ruth Bader Ginsberg, a justice with whom he rarely agreed.  This is really the quality that I most admire about Justice Scalia.  Regardless of his almost unwavering loyalty to his fundamentalist legal dogma, he was able to find connection with a person who completely disagreed with the reasoning that he used to define himself. In many ways, Justice Scalia and Justice Ginsberg were a model for the civility that should exist between lawyers.  Indeed, it should exist at some level between all people.  Yes, we may disagree, we may see the world from very different perspectives, but we have to look beyond that and see the commonality and the beauty that exists in our fellow human beings.



The Roberts Dissent – The Sky Is Falling! Part 2 of 3

In this posting I explore Justice Roberts’ dissent in the same sex marriage decision, Obergefell v. Hodges. I will deal with the dissents of Justice Scalia and Justice Thomas in a third and last installment of posts on this decision. I want to deal with Justice Roberts individually because I find his dissent to be more interesting and much more reasoned than the dissents of Scalia and Thomas.

The opening of Justice Roberts’ dissent is quite characteristic of the tone and balance that I feel he uses throughout the entire dissent. The dissent opens with the following:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal.”

It is an opening paragraph that when I read it seemed to me to be an attempt to create a distance between homophobia and his argument that there is no Constitutional right to same sex marriage. The message seems to be that, while allowing same sex marriage may seem to be the right thing to do, what is right is not appropriate for the Court to consider. He immediately dismisses the arguments of fairness by stating:

“Whether same-sex marriage is a good idea should be of no concern to us.”

He returns to this concept of judicial restraint several times in the opinion with statements such as:

“It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.

Justice Roberts argues that establishing the definition of marriage is an issue relegated to the States that should be resolved through the ballot and legislative process. While he concedes that the historical precedents of the Court view marriage as a fundamental right, he would have the scope of that right be decided at the state level. What he doesn’t do though, which is considered by the majority opinion, is consider the Constitutional ramifications of allowing marriage to be defined at the State level. He doesn’t seem to be bothered by a result where marriages are recognized in one state, but not another. Although he returns to the argument time and time again in his long and largely repetitive dissent, he never addresses how under his paradigm one reconciles the fundamental inequality that arises. Roberts either does not seem to notice, or is not bothered by, an outcome where for opposite sex couples, marriage is a fundamental right protected by the Constitution that is beyond the reach of voters or the legislature. Whereas for same sex couples marriage would only exist as a matter of statutory law, subject to changes by the voters and legislature, and without Constitutional protection.

Justice Roberts conducts an analysis of marriage and its historical roots. In my opinion this is probably the weakest part of his dissent. His examination of marriage is incredibly limited in scope. Regarding the reason for marriage’s existence he writes:

“It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.”

Justice Roberts never explores the idea of marriage beyond what he claims is its biological roots.   He claims that this is the “singular understanding of marriage” throughout American history. He spends quite a bit of time over several pages making the argument that marriage is tied to procreation. He concludes this discussion of traditional marriage by conceding that the majority is correct that marriage has changed over time, but limits this concession by stating that the “core meaning” has not changed.

He never addresses the fact that we don’t limit marriage to only those who can procreate, or that recognition of marriage carries with it many benefits and privileges not associated with procreating such as who would be appointed as a natural guardian of an incapacitated spouse, intestate property distribution, etc. His writing completely ignores the reality that many couples marry with no intention of ever having children and that there is no less protection given to childless marriages.

When Justice Roberts addresses the Equal Protection and Due Process protections that underlie the majority decision he begins by again returning to the judicial restraint argument:

“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

It is from this point that his dissent starts to get a little weird. He looks to the Dred Scott decision as a justification for severely limited substantive due process (Equal Protection and Due Process Clauses) in which the Supreme Court struck down the Congressionally enacted Missouri Compromise on the basis that it resulted in a slaveholder loosing his property interest in a slave when they crossed into a non-slave state. He then basically claims that it was the Dred Scott decision that led to the Civil War and that the reasoning behind majority decision is analogous to Dred Scott.

Here’s what’s weird about this. The Due Process and Equal Protection clauses contained in 14th Amendment that were relied upon by the majority in deciding the issue of same sex marriage are post-Civil war amendments. They did not exist in the Constitution when Dred Scott was decided. He declares that  Dred Scott that was overruled by the Civil War, which is an argument that I’ve never heard anyone make in any context.

He accuses the majority of readopting the due process analysis long disfavored from the Lochner opinion, which involved the Court investigating whether or not a particular law was justified where a liberty interest is involved. In other words, the Supreme Court was acting to review the wisdom of a law rather than the Constitutionality of a law. All of this is argued in support of the overall theme of his dissent in which is he sees the decision as judicial activism.

“The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”

One challenge that Justice Roberts faces in justifying his dissent is that the majority decision points to the numerous prior decisions holding that marriage is a fundamental right that cannot be restricted by the State without justification. Justice Roberts, in what appears to me to be a weak argument, tries to get around this by stating that none of those cases involved a change in the “core definition” of marriage.

In many ways, his entire argument comes to down to whether or not the state laws in question are viewed as a “definition” of marriage or a “restriction” on marriage. Justice Roberts appears to be with the majority when it comes to recognizing that the states face a high burden when justifying a restriction on the right of marriage. However, he believes that they’re free to do as they see fit when it comes to the “definition” of marriage. This is clearly articulated when, in distinguishing the right to marry cases, he writes:

“In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.”

Numerous times returns to beating the long dead horse of Lochner in what is a lot of repetitive language covering arguments made earlier in the dissent. However, when he finally tires of arguing Lochner, he actually moves into what I think is the most interesting part of his dissent in which he asks the question:

“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. “

In this portion of the dissent, I think he’s actually onto something. He points out that there is a strong historical basis for plural marriage and that the reasoning adopted by the majority could equally apply to a person seeking plural marriage. I suspect that he’s asking this question for the purpose of raising fears of the majority decision, but I do think it’s an accurate insight into the potential impact of the holding. Interestingly, he does leave himself an exit strategy should the issue of plural marriage come before the Court by stating: “there may well be relevant differences that compel different legal analysis.”

Justice Roberts closes the decision with several pages of what can best be described as “the sky is falling” rhetoric.   He claims that today’s decision will undermine the respect for, and authority of, the Court.   He even does so far as to claim that the petitioners in the case have actually lost in the long run:

“however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.”

After accusing the majority of sullying the names of people opposed to same sex marriages, Justice Roberts closes with what I feel comes across as a very sarcastic ending:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. “

I’m honestly disappointed that he decided to end with such a spiteful statement. Although I’m not persuaded by his arguments, he raises what I feel are some interesting questions and concerns. However, I find the issues he raises lose their dignity when coupled with his closing. Is Justice Roberts a sore loser, or someone who truly sees the role of the Court as so limited that it must ignore emerging concepts of justice at the expense of honoring tradition? I don’t know. Numerous times in the decision he explains that the outcome is not of concern to the Court because that is a policy consideration for the legislature. While I respect the idea of judicial restraint, I’m not convinced that our founders envisioned our Judicial branch to be little more than a potted plant that is intellectually impotent in the face of injustice. It is the refusal of the Court to act in the face of injustice through decisions such as Dred Scott, Plessy (upholding separate but equal), and Korematsu (upholding internment of Americans of Japanese descent) that have brought shame upon the Court. I do think Justice Roberts’ concerns about short-circuiting the democratic process are of legitimate concern whenever a case such as this is before the Court.  However, I don’t feel that he’s even begun to adequately distinguish a law that “defines” marriage as only applying to certain people from a  law that “restricts” marriage in a way that violates the Constitution.  I suspect, that if this could have been done, this case would have been decided differently.

Justice Kennedy and Same Sex Marriage – Part 1 of 3

It’s been about a month since the Supreme Court issued its decision in Obergefell v. Hodges in which it held that the Constitution protects the right of marriage for same sex couples. I read the decision immediately after it was published and I’ve been contemplating what to write about it since then.   Journalists have already written much about this opinion and I’m certain that the future will bring even more commentary by formal legal scholars. There is much about this opinion and the dissents that I find intriguing and worthy of discussion. In many ways, I see a reflection of the different perspectives of the American people in the writings of the Supreme Court Justices. Because of the complexity of the various approaches by the jurists in the opinion and multiple dissents, I’m going to divide this into 3 parts in order to keep this from becoming too lengthy and to better focus on the writings of the individual justices.

The 5-4 decision is the narrowest possible victory for the petitioners and the split decision is reflective of the societal split and legal difficulty regarding the topic of same-sex marriage. My experience has been that, at its best, the intersection between law and family is difficult. The law seeks certainty and predictable outcomes. It favors statutes and rules that can be applied uniformly to all that appear before a Court. Families and relationships are anything but formulaic. What is just and proper in one family, or relationship, might not be in another. However, there is a tradition among judges that wherever possible they will decide a case on the simplest basis and in the manner that leaves the law as untouched as possible. Despite all the talk of this case as being a historic groundbreaking decision, I believe the Court kept to this tradition, as I will explain below.

Justice Kennedy, author of the majority opinion, begins the opinion by examining the history of marriage. He notes that marriage has evolved throughout history and “has not stood in isolation from developments in law and society.” I feel that he treats the subject and the people involved with a great deal of compassion. He humanizes the case by reciting the backstories and struggles of the petitioners. The case is actually a consolidation of cases from different states involving 3 different couples, each with a unique and compelling story of the harm they suffered from denial of their request to marry or have their marriage recognized by their home state. This humanization of the issue continues throughout the majority decision with language such as:

“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

It is important to remember that the role of the US Supreme Court is one of Constitutional Interpretation.   It is not a trial Court that decides issues of fact. Its fundamental role is to be the final decision-maker on Constitutional issues. Therefore, it is appropriate to ask, what does the Constitution have to say about marriage, a historically religious ritual often performed by clergy? After all, we don’t hear of issues regarding baptism or Bar Mitzvahs coming before the Court.   On the other hand, the marriage relationship, as is noted in the opinion, is a major part of American law with many benefits and privileges being granted through law to married couples. It is this dichotomy of marriage as both religious and secular that makes it such an emotionally charged subject. Interestingly, religion is mentioned in the Constitution, but the word “marriage” doesn’t appear even once in the US Constitution.

One might expect that the Court would decide this issue on the basis of religious freedom. That is, if a clergy person will marry you, then by virtue of your right to religious freedom, the state must recognize your marriage. However, the Court, I believe very wisely, didn’t base its decision upon religious freedom. To have decided the issue on the basis of religious freedom would have elevated clergy to the role of legislating marriage from their pulpits and created a de facto violation of the separation of church and state.

The Court decided the issue based upon the Due Process and Equal Protection clauses contained 14th Amendment of the Constitution, which is familiar territory for the Court when deciding issues of family life. The Constitutional text that the Court considered is:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

While marriage is not a mentioned in the Constitution, the Supreme Court long ago determined that marriage is a fundamental right that must be highly protected against government intrusion. The Court has used this reasoning in prior cases to conclude that state laws restricting marriage based upon race, prohibiting marriage for inmates, laws restricting the right of marriage for fathers with unpaid child support were all unconstitutional. The opinion plainly states that the Court does not see itself as creating a new marriage right, but as affirming a deepened understanding of an existing right. Justice Kennedy writes:

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

In other words, the concept of liberty and equality in the United States is not static, but changes as our understanding and insight expands. The Court gives an excellent example of this concept of emerging understanding by discussing the abolition of the laws that treated married women unequally known as the “doctrine of coveture”. Historically, married women in the United States lacked legal capacity, they were considered subjects of their husbands, and all their property belonged to their husbands. Contracts by married women were unenforceable unless her husband ratified the contract.  Such laws persisted in our country up through 1981 when the US Supreme Court declared them to be unconstitutional. As noted by the Court, if the Court had not looked to emerging insights of liberty and equality, married women in the United States would have remained subjects of their husband.

One interesting aspect of this decision that I expected to see but wasn’t included, is the application of the “strict scrutiny test”. In prior cases involving fundamental rights, the Court has utilized an analysis known as “strict scrutiny”. In this analysis, once the Court has found that a fundamental right is at issue, the State then has the burden of showing that there is a compelling state interest at stake to justify the intrusion upon the fundamental right and that the state action is narrowly tailored to further the compelling interest while limiting the intrusion upon the fundamental right. For example, if a state wants to remove a child from a parent it is infringing upon the parental right of privacy and it must show a compelling interest such as protecting the child from abuse. The removal must be no more than is necessary to protect the child, thus if supervised visits can be done safely, they must be allowed. I am not sure why the Court omitted the strict scrutiny analysis in this case. Perhaps, it felt this was unnecessary given the citation to prior cases.

Having found that marriage is a fundamental right that cannot be denied to same sex couples, the Court then discusses why this issue cannot be left to the voters through the democratic process. I will discuss this issue further when I address the dissent filed by Justice Roberts who argues this point quite strongly.

I believe Justice Kennedy could have ended the decision at this point, but I suspect he understood the controversial nature of the decision and the need to thoroughly explain the reasoning and scope of the decision. Just before ending, he addresses the issue of same-sex couples whose marriages are valid in one state, but not recognized in another. He describes this situation as “the most perplexing and distressing complication[s] in the law of domestic relations” and then describes the hardship and risk this creates for same sex couples. He concludes his discussion of that topic by stating “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

There is another aspect to consider when analyzing Justice Kennedy’s writings.  That is, whether or not Justice Kennedy is writing for the present or for future generations.  The US Supreme Court has too often been on the wrong side of history and justice when it comes to issues of equality and civil rights.  The Court spent a generation upholding and defending segregation.  It upheld internment of Americans with Japanese heritage during Word War II.  Such decisions have not enhanced the historical reputation of the Court as a place where justice was found.  Justice Kennedy clearly writes this opinion from a position of enlightened moral authority.  I suspect that he has a vision of the future and he writes to bring the Court into alignment with the vision.

In the closing paragraph, the opinion returns to the aspirational language seen at the beginning. The language is much more akin to that used in a marriage ceremony than what is usually seen in a Supreme Court opinion, but I think it fits well with the overall compassionate tone of the opinion. I believe this paragraph will be of great value to future generations and I would not at all be surprised to see it become a part of same-sex marriage ceremonies. I think that, even if you read nothing else of the actual opinion, the final paragraph is well worth reading:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”