The Divisive Supreme Court
2017; University of Chicago Press; Volume: 2016; Issue: 1 Linguagem: Inglês
10.1086/692163
ISSN2158-2459
Autores Tópico(s)Judicial and Constitutional Studies
ResumoPrevious articleNext article FreeThe Divisive Supreme CourtEmily BussEmily BussPDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreObergefell v Hodges,1 the Supreme Court's decision invalidating state same-sex marriage bans, was widely perceived as the work of a partisan elite imposing its policy preferences on the American people. Two aspects of the decision support this conclusion. First, the case was decided by the narrowest possible margin, with Justices splitting along ideological lines. Second, the majority opinion is not well reasoned, suggesting that the Justices' decision was weakly supported by law. This perception of Obergefell as an elitist, partisan power grab to resolve a controversial social issue reflects broader concerns about intensifying divisions in our society, and their harmful effects on our political discourse.I agree with these criticisms, but I argue that the fault lies, not in the recognition of a federal constitutional right to same-sex marriage, but in the Supreme Court's intervention. Before the Supreme Court took over, the federal right to same-sex marriage was protected by a growing patchwork of cases decided by a politically diverse group of federal judges who were deeply connected to the states whose laws they were reviewing and who applied constitutional doctrine with considerable care. Taken together, the nineteen federal district court decisions that struck down same-sex marriage bans on federal constitutional grounds in the two years leading up to the Obergefell ruling manifested the ongoing emergence of a national consensus in favor not only of same-sex marriage but of a federal constitutional right protecting those marriages. But when the Supreme Court stepped in, it transformed this emerging, bipartisan, locally grounded legal consensus into a legally questionable political act of a coastal elite who barely outvoted their colleagues who passionately disagreed.In Part I, I set out the majority's analysis, with a focus on the objections raised by the Obergefell dissenters and echoed by its political critics. In their view, a partisan majority on the Court effectively enacted its own policy preferences, in violation of principles of federalism and democratic self-rule. I endorse many of the critics' objections, but not their disagreement with the outcome of the case. In Part II, I consider the federal district court decisions in which the federal right to same-sex marriage was originally developed and the extent to which the Obergefell critics' objections could be applied to this aggregation of cases. I conclude that the challenges of elitism and partisanship have no application to the patchwork of lower court decisions authored by judges of all political stripes whose life histories are those of local rather than national prominence. These judges oversaw the same-sex litigation as federal representatives of the people of their states, sharing not only a common background but also an ongoing connection to these constituencies. As a result, the dissenters' worries about federalism and even democratic governance are blunted when applied to this aggregation of lower court decisions.The doctrinal analysis is far more disciplined and thorough in these lower court decisions, producing a series of well-reasoned opinions that follow a variety of doctrinal paths. In my view, we were better off when the law was controlled by multiple, well- (if variously) reasoned opinions, than when the Supreme Court finalized these legal developments in a doctrinally weak opinion likely required to secure its bare majority of five votes. In deciding the case itself, the Court obscured the emerging consensus, and rendered the law, and the Court that declared it, more vulnerable to attack.In Part III, I address some likely objections to my suggestion that the Supreme Court should have left the law in the hands of the lower courts rather than deciding Obergefell. The first is that the federal district court decisions did not truly reflect the emergence of a noteworthy consensus; if those courts thought they were following the clear direction of the Supreme Court set out in United States v Windsor,2 they should not be credited with discerning or developing a local consensus. The many backgrounds, politics, and local connections of the deciding judges are immaterial if those judges were simply doing what the Supreme Court had already told them they must do. But in fact there is ample evidence of the district courts' independence—particularly in their rejection of Windsor's analysis, in their willingness to treat their own circuit precedents as obsolete, and in their resistance to issuing stays pending appeal—that they perceived their role as interpreters, rather than simple implementers, of the law.A second objection is that whatever value came from state-level decision making in the district courts was already significantly attenuated when the cases were affirmed in the federal courts of appeals, courts much closer to the Supreme Court in their makeup and national orientation. But the tone of the court of appeals decisions that affirmed the district court rulings, and the fact that the court of appeals decisions were also diverse and were subject to further review, preserved the relevance of the district court decisions in the appellate decisions and in the press coverage of those decisions. The effect of the appellate court decisions was more additive than preemptive, an effect Obergefell did not, and probably could not, preserve.A third objection is that, once a circuit conflict emerged, the Court had no choice but to take the case. But the Court always has a choice, and that choice should take into account what will be gained and lost through Supreme Court intervention, a balance tipped heavily against intervention in this case. A fourth objection is that the Supreme Court's decision could be understood to be built upon and to preserve the consensus reflected in the lower court opinions: after all, Justice Kennedy's majority opinion in Obergefell not only mentions the lower court developments but catalogs all of the relevant lower court decisions in an appendix.3 The crucial point, though, is that the displacement of lower court antecedents is an inevitable aspect of a Supreme Court decision. This displacement of multiple lower court decisions with a single final decision by the Supreme Court is often beneficial, providing clarity and certainty in the law. But in Obergefell, the Court failed to deliver that.I. Obergefell's FailingsA. Obergefell's Doctrinal FailingsThe majority opinion in Obergefell was widely criticized, by supporters as well as opponents of same-sex marriage rights, as a poorly reasoned opinion.4 This did not come as a surprise, as it followed Windsor, another weakly reasoned opinion, with the same five Justices in the majority, and the same incentives among them to join a single opinion authored by swing and senior Justice Kennedy.5 The doctrinal issues raised in the same-sex marriage litigation were difficult and contested. Even among champions of same-sex marriage, there was considerable disagreement about the best doctrinal path to that end. The value of solidarity the Justices in the majority could achieve by signing on to Justice Kennedy's opinion may have given them some comfort that the issue would be favorably resolved without forcing difficult and contentious doctrinal development among them. But, I will argue, that exaggerates the value of a Supreme Court ruling and underestimates the harm it can cause.The doctrinal issues pressed in Obergefell were, to simplify, whether a right to same-sex marriage was protected under the Due Process Clause, the Equal Protection Clause, or both and, depending on how that threshold question was answered, how those two clauses should be applied. The due process analysis required an account of "substantive due process" rights that included same-sex marriage within the "fundamental liberties" afforded special protection. Precedents suggested, somewhat murkily, that marriage was a fundamental right, but did not answer the difficult question of how "marriage" that qualified for constitutional protection was to be defined. Any definition that broadened the scope of the definition beyond the long-held, traditional definition of marriage as the union between one man and one woman raised questions about whether the arguments for that expansion to same-sex couples might equally support an expansion to other aspects of that definition (e.g., why one and not two?). Equal protection doctrine, for its part, called for a determination, first, of the level of scrutiny to be applied to the same-sex marriage ban (heightened scrutiny or rational basis?), and then the application of a specific standard, tied to the level of scrutiny required.In his majority opinion, Justice Kennedy engaged none of these doctrinal questions, even leaving ambiguity about the constitutional clause his opinion rested upon.6 That said, it is fairly clear that the core of his opinion qualifies as substantive due process analysis, manifesting all of the hazardous potential for ill-reasoned invocations of liberty warned against by the doctrine's opponents.The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. … The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.7In issuing a decision that avoided engagement with the doctrine, the Court left the ruling vulnerable to the suggestion that the conclusion it reached was not merely unsupported, but also unsupportable, a suggestion effectively exploited by the Justices who opposed the recognition of the right.In his criticism of the majority's analysis, Chief Justice Roberts remained polite, though he did not mince words in suggesting that the majority's opinion lacked any legal foundation. On the substantive due process analysis, Justice Roberts noted that the majority opinion articulated four principles and traditions weakly tied to precedent; the majority relied, he said, on the "driving themes that marriage is desirable and petitioners desire it."8 The Chief Justice noted that, "although the majority randomly inserts the adjective 'two' in various places, the majority offered no reason at all why the two-person element of the core definition of marriage may be preserved, while the man-woman element may not."9 On the majority's equal protection analysis, Justice Roberts noted that it "does not seriously engage" the equal protection claim, and that its discussion of the Equal Protection Clause was "quite frankly, difficult to follow."10 He further noted the absence in the opinion of "anything resembling our usual framework for deciding equal protection cases," the sort of complex "means-ends"11 analysis applied so exhaustively in the lower courts.Justice Scalia was far less polite. The majority's was "an opinion lacking even a thin veneer of law"12 that was "profoundly incoherent."13 "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."14 While this was characteristic Scalia acerbity, less usual, perhaps, is the extent to which many, including many who supported the majority's outcome, shared his harsh view of the opinion's incoherence.15 And among same-sex marriage opponents, that was strong evidence that the granting of same-sex marriage rights was a raw exercise of power.16B. Obergefell's Representational FailingsWhile the four Obergefell dissenters focused on different doctrinal details, they shared a common central complaint: The Obergefell majority opinion reflected nothing more than the policy preferences of five Justices. "Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,"17 Chief Justice Roberts lamented, calling the majority's decision "an act of will, not legal judgment."18 Justice Scalia, too, recast the Justices as partisan advocates, or "lawyers," and announced that "[t]oday's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."19 Justice Thomas argued that the majority opinion "roa[med] at large in the constitutional field, guided only by their personal views."20 And Justice Alito warned against "five unelected Justices" "invent[ing] a new right"21 and "imposing their personal vision of liberty upon the American people."22The dissenters suggested that the imposition of the Justices' views on the American people was particularly problematic because the decision came as close as a Supreme Court case can come, with nine sitting Justices, to a tie.23 But Justice Scalia went further in making the case that the Justices as a group were particularly unqualified to decide the issue, arguing that the elitism and lack of connection between the Justices and the American people made the Justices' control of marriage policy especially disturbing:This Court … consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. … [T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.24The dissenters' objection to what Justice Scalia called a judicial "putsch" focused on the decision's interference with both the democratic process and the balance of authority between nation and state. Notably, the interference with the democratic process, and the control of law making by "the people," got higher billing in all four dissents, despite the fact that the federalism issue was more directly at stake. Absent a federal constitutional right, state courts could, and often already had, rejected state legislative bans on state constitutional grounds.This failure to protect the state lawmaking process was especially problematic, the dissenters suggested, when that process had been so productive and dynamic. Justice Scalia noted:Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their view. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.25Chief Justice Roberts noted the special problem of the Supreme Court "seiz[ing] for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question,"26 and added to the eleven states that legalized gay marriage by majority vote the five states whose highest courts "decreed that same result under their own Constitutions."27The state-level developments in same-sex marriage law preceding Obergefell were, indeed, a remarkable display of democratic engagement and state experimentation and learning. And all signs suggested that the trend was shifting in favor of same-sex marriage, though the enactment of constitutional amendments banning same-sex marriage in a number of states prevented simple majorities from reversing policy there. The dissenters noted the loss, to people's perception of legitimacy, of a law imposed by the Court, rather than worked out over time in the states, a loss marriage equality advocates would not have had to incur, some of the dissenters hinted, in order to vindicate their views:[H]owever 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.28We should be particularly worried, Chief Justice Roberts suggested, about the impact the decision would have on the attitudes of those who disagreed with its conclusion. "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."29 Justice Alito shared this concern about the divisive effect of the decision, forecasting the "marginalization" of many Americans and the infliction of "bitter and lasting wounds,"30 a theme that is routinely invoked today, in a broader political context, as a source of serious concern.31Even worse, the dissenters argued, the majority opinion disparaged same-sex marriage opponents, many of whose positions are grounded in religious belief. "Perhaps the most discouraging aspect of today's decision," Chief Justice Roberts wrote toward the end of his dissent, "is the extent to which the majority feels compelled to sully those on the other side of the debate."32 "These apparent assaults on the character of fair minded people will have an effect in society and in court," he warned.33There is much to be said for this set of objections, pressed in the dissents and echoed by critics in the popular press and our political discourse. A small group of liberal judges who are out of touch with the country's " vast expanse in between" the coasts ruled that the Constitution protects the right of same-sex marriage, without engaging in any disciplined legal analysis, thereby putting to an immediate stop the vibrant debate and development of the issue in the states. But what the Obergefell dissents obscured is the fact that leading up to that elitist and ill-reasoned decision of five partisans were nineteen carefully reasoned decisions of federal judges from all parts of the country, party affiliations, and walks of life that lined up, one after the other, in favor of a right to same-sex marriage.In the following part, I will suggest that the federal litigation, particularly in the district courts, played an important bridging role between the emergence of same-sex marriage law in a growing number of states and the recognition of a federal right protecting those marriages. That remarkable aggregation of lower court rulings offered a better grounding for the right than the Obergefell decision that displaced it. In a sense, of course, the lower courts will always be better situated to represent the people in whose states they sit than the small Ivy League educated group in Washington, but it was the broad uniformity of the district courts' rulings that made the Supreme Court's intervention particularly unnecessary, and the foreseeability of a weak Supreme Court opinion that made the intervention reckless.II. The Right to Same-Sex Marriage in the Federal District CourtsA. Windsor and the Justices' Anticipation of Lower Federal Court LitigationTwo years prior to its decision in Obergefell, the Supreme Court decided United States v Windsor,34 the case in which the Justices, by the same bare majority, struck down the Defense of Marriage Act (DOMA), which limited federal marriage benefits to opposite-sex couples. In his dissent in Windsor, Justice Scalia warned that it would lead to Obergefell's result:It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is. … I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.35Scalia made a point of distinguishing "this Court,"36 and potential "panel(s) of like-minded federal judges," that is, other appellate judges, from the federal district courts and state courts, whom he called upon to exercise independence in assessing the constitutional challenges to state same-sex marriage bans that were headed their way:I do not mean to suggest disagreement with the Chief Justice's view … that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples. … Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.37In separate dissents, Chief Justice Roberts and Justice Alito both offered the district courts doctrinal ammunition for their resistance. For his part, Chief Justice Roberts emphasized that the Windsor majority opinion depended upon a finding that the authority to define marriage rested with the states, not the national government.38 And Justice Alito plotted a course through the doctrine that led to the conclusion that neither the Due Process Clause nor the Equal Protection Clause of the Constitution prevented states from prohibiting same-sex marriage.39 Endorsing the majority's declaration that the Windsor decision only protected the marriages authorized by state law, the dissenting Justices reminded the district court judges that the constitutionality of same-sex marriage bans was an open question.The district court (and state court) judges did—in one sense—take up Justice Scalia's call. In a rapid and steady stream of decisions, they exercised independent judgment, giving the attention to the "arguments put forward" by the defenders of state bans, which Justice Scalia complained had been ignored by the Windsor majority.40 Those courts also substituted careful doctrinal analysis for what Justice Scalia called the "disappearing trail of legalistic argle-bargle"41 set out by the Windsor majority. But the independent, careful work of this large, far-flung, locally grounded set of lower court judges led them to the result that Justice Scalia feared would be imposed upon them by five Justices in Washington, D.C. These judges agreed with the Chief Justice that Windsor did not decide the issue, and they agreed with Justice Scalia that it was their job to carefully analyze and decide it for themselves. But with near unanimity they rejected Justice Alito's constitutional analysis, not because they thought Windsor required them to reject it, but because they concluded that his analysis was wrong.Justice Scalia's dissent in Windsor ended on an eloquent note. He lauded the evolution of society's debate over same-sex marriage, with it "victories in one place for some … offset by victories in other places for others,"42 and he worried that the Windsor decision would "rob the winners of an honest victory, and the losers of the peace that comes from a fair defeat,"43 a worry echoed by some marriage equality proponents in the period leading up to Windsor.44 The explosion of district court decisions striking down state same-sex marriage bans that followed, while certainly a shift in the direction of national control over the issue, should be understood as another chapter in the progress toward an "honest victory." From the beginning, state courts were active players in those victories and defeats, and the emerging consensus reflected a complicated interaction between state court decisions and legislative and popular voting. While the federal district judges shifted the analysis to federal law, they did so in a role firmly grounded in local politics and culture. In an area of law in which popular attitudes were shifting, not only about whether same-sex marriage should be permitted, but also whether it should be understood as a civil right, the federal district judges played an important role as state-affiliated interpreters of the federal Constitution. In this way, they manifested a sort of federalism within the federal courts.After setting the scene with a somewhat detailed account of the judges and their decisions that started things off in Utah,45 I consider in the aggregate the federal district court decisions striking down same-sex marriage bans between the Supreme Court's decisions in Windsor and Obergefell. I conclude that those decisions were not vulnerable to the same charges of partisan elitism and lawless decision making that have been legitimately aimed at the Supreme Court's decision in Obergefell.B. Utah, of All PlacesIn March, 2013, three months before Windsor was decided, three gay and lesbian couples filed suit in the United States District Court for the District of Utah alleging that Utah's statutory and constitutional ban on same-sex marriage violated their due process and equal protection rights under the Fourteenth Amendment of the United States Constitution. The case, Kitchen v Herbert,46 was assigned to Judge Robert Shelby, an assignment that might have provoked a mixed reaction from litigants on both sides. Judge Shelby was a recent Obama appointment, but he was also a Republican who had been heralded by Utah's two Republican senators Lee and Hatch as "pre-eminently qualified,"47 with an "unwavering commitment to the law."48 Judge Shelby had moved to Utah to attend college, and then made it his permanent home. At eighteen, he joined the Utah National Guard, later serving as a combat engineer in Operation Desert Storm alongside his fellow Utah guardsmen.49 After attending the University of Virginia Law School, he returned to Utah to pursue his legal career, a career that consisted of a strong but unremarkable private practice in Salt Lake City.On December 20, 2013, Judge Shelby issued his decision, striking down Utah's statutory and state constitutional bans on same-sex marriage and declaring that Utah's bans "deny its gay and lesbian citizens their fundamental right to marry." This declaration was significant, not only because it legalized gay marriage in Utah, but also because it announced the opinion's analytic independence from Windsor. While Windsor was a doctrinally opaque opinion, its emphasis on DOMA's problematic "discrimination of an unusual character"50 tied its analysis more closely to equal protection than to substantive due process. Judge Shelby's opinion, in contrast, clearly focused on due process and the fundamental right to marry, an analysis that looked to other decisions, rather than Windsor, for support.Kitchen was decided on cross-motions for summary judgment, focused on a legal question. That said, the judge's analysis depended upon findings of fact that were based on the undisputed testimony of the plaintiffs that plaintiffs' sexual orientation was "an inherent characteristic of their identities."51 From this adjudicative fact, he drew the conclusion that the state's prohibition of same-sex marriage constituted a complete denial of the right to marry for those who could only develop "feelings of deep intimacy" with persons of the same sex.52 Judge Shelby's opinion considered the source and scope of the fundamental right to marry at considerable length and went on to consider, and reject, the defendants' several arguments against the plaintiffs' fundamental rights claims.53 Judge Shelby then turned to the Equal Protection Clause, concluding that it, too, prohibited the same-sex marriage ban. His consideration of equal protection doctrine included some discussion of fundamental rights54 and heightened scrutiny,55 but he concluded that the laws could not even survive rational basis review.56Judge Shelby's opinion is notable for how he wrote both about the plaintiffs and about the people who voted for the laws he struck down. His detailed and personal descriptions of the plaintiff couples is unremarkable, the typical humanization of those whose rights an opinion goes on to protect. What is somewhat striking, however, is how frequently the judge tied the plaintiffs, in those descriptions, to Utah, and communities and institutions within Utah.57 More notably, he went to some pains to avoid ascribing animus to the Utah voters (at least some of them) who supported the laws, and while he emphasized the lack of guidance on defining and identifying animus from the Supreme Court in Windsor or its earlier decision in Romer v Evans,58 his conclusion that "it is impossible to determine what was in the mind of each individual voter"59 went further, saying, in effect, that even the most well-intentioned, unhateful Utah citizens had enacted an unconstitutional law. Judge Shelby very intentionally avoided the polemical language Justice Kennedy adopted in Windsor, where he characterized the Congress that enacted DOMA as having the "avowed purpose … [of] impos[ing] a disadvantage, a separate sta
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