No Panaceas

Friday, June 27, 2003
On Stevens, Kennedy, O'Connor, Scalia, and Thomas: Well, the Supremes certainly know how to go out with a bang. In the last week they upheld affirmative action, overturned a death penalty case, decided a stealthly little redistricting/race case, and, of course, waxed the nation's sodomy laws.

Boy howdy.

I want to touch on some issues related to the sodomy case. First, no one in the press seems to have noticed this, but I'm struck at the role that John Paul Stevens played in this case. He wrote one of the dissents in Bowers, so you just know he was itching to write the majority decision in Lawrence. It was his call. On the Court the Chief Justice gets to assign the opinion if he is in the initial majority. If he is not, then the choice goes to the most senior justice in the initial majority. Thus for this case Stevens got to make the assignment, since Rehnquist sided with the minority. Stevens could have kept the opinion for himself. Instead, he gave it to Kennedy. It was a brillant strategic move. By giving the case to the most conservative member of the 5-4 "privacy" majority, Stevens guaranteed that the five-member majority would stay together. Were Stevens to write the decisions it was very possible that eventually Kennedy would get coopted by the opposition. (This might have led to a complicated split decision with five votes for overturning the Texas law, but only four for overturning Bowers, or O'Connor might have flipped to other side thus leading to the upholding of Bowers and the Texas law.)

In the end Kennedy wrote a decision that I doubt strayed very far at all from what Stevens himself would have written. (It is in a way reminiscent of the way Blackmun wrote Roe as liberal or even more liberal than Douglas, who desperately wanted the opinion for himself, would have written it.) Kennedy is a rather enigmatic figure. He is a conservative justice, both in terms of his judicial philosophy and his personality. (He is a devout Catholic, for example.) Yet, he wrote a decision that symbolically, even more than substantively, strikes a powerful blow for the civil rights of gays and lesbians: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice," (p. 6).

If you look at his overall voting record, it is very hard to characterize Kennedy as anything other than a conservative. Yet, his reputation among conservative observers is really rather spotty. He has the reputation of being vulnerable to liberal persuasion, supposedly because he wants to be liked and praised in the press (the so-called "Greenhouse Effect," after NYT reporter Linda Greenhouse.) This reputation was dramatically enhanced by Kennedy's participation in writing Planned Parenthood v. Casey . Well, if conservatives were griping about him after Casey, I can only imagine what they will be saying now.

As for O'Connor, I suspect that people will make all kinds of assumptions and assertions about her here. People will say that she was unable to admit she was wrong in Bowers and thus she had to go the Equal Protection route. Thus her concurring opinion. (The decision was 6-3 on overturning the Texas law but only 5-4 on relying on Substantive Due Process (privacy protections in this context) to overturn Bowers.) People continue to say that she has no real judicial philosophy -- as if liberal and conservative are the possible choices -- and thus always goes for the compromise decision (as with the Michigan cases.) Whatever. You can make the case -- as I largely did the other day -- that the Equal Protection route has the wider reaching implications. Sure, the privacy route directly affects more laws, since it nullifies all sodomy laws, not just those criminalizing gay sex. But I believe it's the Equal Protection route that promises gays and lesbians things like marriage and open membership in the military. It's very hard to make any kind of a privacy case for those items, which is a big part of the reason why people are wrong in framing this decision as 1:) mainly about homosexuality; and 2) a decisive step on the path towards much stronger civil rights for gays and lesbians. O'Connors decision, its explicit denials aside (see p. 7 of O'Connors concurrence), were it the majority opinion would have laid a stronger groundwork for gay equality.

To be sure, the decision is important for gays and lesbians. It is important for symbolic reasons, as I've said, and it does have key substantive effects for homosexuals, too. For examples, in adoption cases judges have presumed that gays and lesbians were criminals because of the sodomy laws. So in Virginia, for example, a gay couple may be denied adoption not because they are gay per se but rather because as a couple they are assumed to have criminal sex. In contrast, if my wife and I, as residents of Virginia, attempted to adopt a child a judge would make no such presumption, since as a couple we have the option of engaging in strictly sodomy-free sex. This decision takes away this presumption of guilt for gay couples and, more generally, it carves out a zone of privacy for intimate relations between consenting adults, whatever their orientation.

This then brings me to Scalia. Without question Scalia is among the most intellectually brilliant judges to ever sit on the Court. Unfortunately, I suspect that when scholars, including conservative scholars, look back at Scalia's full career they will view it as largely one of opportunities lost. Here again Scalia had an opportunity to write a measured, powerful legal dissent to a case, a dissent that might form the basis for a future reversal, the way Stevens's dissent formed a basis for the eventual reversal of Bowers. Instead Scalia chose to write a screed. For the most part he demonstrates that he just can't get over Casey, so he chooses to make this case about Casey. Why is, he asks, the precedent of Bowers so unimportant when this same writer (Kennedy) participated in the argument that Roe was a crucial precedent. To be sure, Scalia makes some good points, he just does not develop them very well because he'd rather engage in vitriol and sky-is-falling slippery slope scenarios then actually put his brains and writing skills to use. In the end his comparison of Roe to Bowers is utterly hollow, especially given the way that one of the Bowers majority (Powell) later completely disavowed his Bowers vote. Really, Scalia should have celebrated that the Court had the good sense -- from his perspective -- to disavow Equal Protection in this case and he should have then gone on to muster a powerful argument about the very flimsy constitutional ground upon which Roe and now Lawrence reside: the right to privacy. I wonder if conservatives realize just how terrible a Chief Justice Scalia would make. I think he would demonstrate an uncanny ability to turn potential conservative victories into conservative defeats. Perhaps, the Democrats should actually hope for a Scalia appointment when (if?) Rehnquist retires. ("Oh, please don't put me in the briar patch...")

Then there is Thomas. In a deliciously concise dissent he basically says something like what I said the other day: This is a really dumb law, but it's not our job to tell legislatures not to pass dumb laws. Of course, as I'm sure many many pundits will point out, he also says that he does not believe that the Constitution includes a right to privacy, which directly contradicts his testimony before the Senate Judiciary committee way back when. How long before someone calls for his impeachment for perjury? I mean, perjury is an impeachable offense, right?

Thursday, June 26, 2003
Quote on Bowers: I'm just in the early bits but here' s a rather decisive quote (p. 3): "Bowers was not correct when it was decided, is not correct today, and is hereby overruled."

Goodbye sodomy laws?: The early press reports have the Supreme Court striking down the Texas sodomy law on privacy grounds. Apparently it was a 6-3 decision in whole or part. Kennedy wrote, joined by Stevens, Souter, Breyer, and Ginsburg. O'Connor apparently agreed in part but wrote separately. Scalia, Rehnquist, and Thomas disstented. So the split is pretty classic. I am always very dubious about initial press reports.

Wednesday, June 25, 2003
Waiting for Lawrence v. Texas: The two Michigan cases continue to garner a tremendous amount of attention, deservedly so since it is a case that might have changed things dramatically. It seems to me that the issues in Grutter v. Bollinger and Gratz v. Bollinger presented rather straightforward legal and political issues (as difficult as those issues are to resolve). The case that really intrigues me though is Lawrence v. Texas. This is the kind of case where I'd like to be a "fly on the wall" during private Court deliberations.

At first blush this case looks simple. Texas law criminalizes same-sex sodomy while leaving heterosexual sodomy unregulated. I don't have proof, but I suspect that most Americans look at sodomy laws as rather silly governmental intrusions into the private sexual conduct of consenting adults, whatever their orientation. But just because a law is stupid doesn't mean it's unconstitutional. Legislators make dumb laws all the time. For good reason, the Courts are always hesitant to override laws passed by democratically-elected representatives. A generally agreed upon standard of "stupid" doesn't fly; after all, in theory the Texas legislature could simply repeal the sodomy law, if enough Texans see it as stupid. (I say in the theory because even if most Texans oppose the law (no idea) it's still very hard to pass legislation opposed by a committed minority.)

So, what is the constitutional basis for tossing the Texas sodomy law? Here is where things get really interesting. There are two main routes: equal protection or privacy. At first blush either or both seem really simple. But when you push at it a little you realize that both paths get rather tortuous and, to mix metaphors, those cans of worms start getting opened.

Let's take equal protection first. The case here is that in Texas, unlike in some other states, only same-sex sodomy is illegal. Thus the legality of a private, consensual oral sex, for example, depends soley on the sex of the person performing the act. (There is a Gertrude Stein quote here that I'm going to resist.) Consequently, there appears to be an equal protection claim. Why are homosexuals being singled out for sanction? That's a very compelling line of argument and I personally find it more than persuasive. However, think about the implications. Homosexuals are singled out for specific sanction in numerous areas, the prohibition of gay marriage, for example. If equal protection applies to sodomy then perhaps it should apply to these other areas as well. So would an equal protection finding in the sodomy case create a crucial precedent that applies to these other areas? Perhaps, and I suspect that such a prospect gives conservatives and even a few moderates plenty of pause.

Privacy is the other route. In Bowers v. Hardwick (1986) the Court ruled sodomy laws were not protected by a right to privacy. This helped add to the overall confusion and controversy regarding whether or not a right to privacy resides in our Constitution. The Court may decide that it was wrong in 1986 and rule that a state has no compelling interest to interfere in this sort of private consensual sexual activity between adults. Almost certainly such a finding would nullify not just Texas law, but even the sodomy laws in other states that make no distinction between gay and straight sex. But think about what this means. The Court would reverse itself from Bowers. That is not a small step. More importantly the Court would buttress privacy rights. That potentially lends more heft to abortion-rights protections -- since Roe remains largely founded on a right to privacy -- and perhaps, just perhaps, it will strenghten privacy rights in other realms, such as other claims by gays and lesbians, and even claims against the Patriot Act. (Frankly, I think the Court will easily parse the difference between compelling interest in sexual matters versus those potentially related to a terrorist threat.)

So, whichever route the Court goes raises some very interesting implications. This case is about a lot more than just sodomy. What will they do? I think there is a real possibility that the Court will cope out and dismiss the case on some technicality. Maybe they will find that the police mishandled the case and and thus find for the petitioners on that basis. But if they do decide to take this on, then I have to think that they will find against the law in some fashion. It will probably be 5-4 or 6-3 with Kennedy and O'Connor as the key players here. My gut feeling is that they overturn their Bowers decision on privacy grounds but will nonetheless try to draw the decision as narrowly as possible. We should know pretty soon.

Tuesday, June 24, 2003
How about them Rice Owls?

Monday, June 23, 2003
It's a split decision: So the Supremes hand down a mixed decision on the Michigan Affirmative-Action cases. At first blush it all looks like only a minor modification to Bakke. Race remains a constitutional criteria but the Michigan undergraduate point system goes too far towards the quota side of the fence. A while back I wrote a post describing the details of the programs. Here and here are today's decisions.