How Do You Solve a Problem Like Scalia?

     Chief Justice John G. Roberts Jr. opened the Supreme Court’s October 2011 term by noting that it was the 25^th anniversary of Justice Antonin Scalia’s first day on the court. “The place has not been the same since,” Roberts added.

      It was true then and, at the end of a politically contentious term four years later, all the more true today. For his efforts, Scalia has earned admiration from his ideological followers and attention from court watchers and the general public. But he went so far in the final days of the October 2014 term as to prompt debate about how to deal with the spotlight-grabbing behavior that some commentators viewed as tarnishing his legacy and bringing disrespect on the judiciary.

      Scalia has made an important if controversial contribution to the court’s jurisprudence by emphasizing “original meaning” in constitutional interpretation and “plain meaning” in statutory construction. He can also be credited with starting the transition from the lukewarm bench of the Burger Court to the hot bench of the Rehnquist era and the now very hot bench of the Roberts Court.

      Early on in Scalia’s tenure as a junior justice, his senior colleague Lewis F. Powell Jr. turned to another senior colleague Thurgood Marshall to say, “Do you think he knows that the rest of us are here?” (Credit Scalia biographer Joan Biskupic for recalling the story in her 25^th anniversary piece.) As the story illustrates, Scalia has delighted from the start in playing the role as the court’s bad boy —  or perhaps the court’s cattivo ragazzo. But never more so than with his snarky dissents from some of the past term’s most important decisions.

      Scalia dismissed Roberts’ opinion for the six-justice majority in the Obamacare case, King v. Burwell, as “quite absurd” and, for good measure, as “pure applesauce.” The next day, Scalia was even more contemptuous of the majority decision in the marriage equality case, Obergefell v. Hodges. He managed simultaneously to insult the author of the decision, Justice Anthony M. Kennedy, and the four liberal justices who joined the opinion. After dismissing Kennedy’s attempted eloquence as “mummeries,” Scalia sneered at the liberals for going along. “I would hide my head in a bag,” he wrote, before joining such an opinion.

      Scalia was not yet through. In the lethal injection case, Glossip v. Gross, Scalia mocked Justice Stephen G. Breyer for arguing in dissent that capital punishment may be unconstitutional because of inevitable delays in carrying out executions and because of declining public support for the death penalty. As for delays, Scalia said that Breyer has been “the Drum Major” for judicial decisions that slow capital cases. And he dismissed Breyer’s count of fewer states that carry out the death penalty as “creative arithmetic.”

      Scalia’s snarky dissents are nothing new. Back in 1989, Scalia vented his anger at Justice Sandra Day O’Connor for not providing a fifth vote to overturn the abortion rights decision Roe v. Wade. O’Connor’s position, he said, was “irrational” and “cannot be taken seriously.” In recalling that anecdote in 2011, the New York Times’ great Supreme Court correspondent Linda Greenhouse said she knew of no instance when Scalia’s barbed comments had helped sway other justices to his position.

      Greenhouse might have to amend her comment today. In June 2011, Scalia argued in dissent for ruling a part of the Armed Career Criminal Act unconstitutional despite successive decisions grappling with how to interpret the provision. The ruling “will sow further confusion,” Scalia wrote. “Four times is enough.” But this term Scalia put together a six-justice majority to rule the provision unconstitutional, just as he had argued twice before.

      Some evidence suggests, however, that Scalia’s colleagues are at best ambivalent about his behavior. I recall a panel discussion from years back in which O’Connor complained about the argumentative style of unnamed ex-professors on the bench. Scalia taught at two law schools before becoming a justice.

      The liberal academic Erwin Chemerinsky, dean of the University of California-Irvine Law School, argued more pointedly in a post-term wrap-up that Scalia’s opinions marked a new low for the court. “The level of personal attack and invective is something that has never been seen in Supreme Court opinions,” Chemerinsky said. A lawyer who put such language in a brief could be sanctioned, he said. “It’s less acceptable from a Supreme Court justice.”

      More charitably, Eric Segall, a law professor at Georgia State University, says Scalia is tarnishing his legacy by “becoming . . . a caricature of the bitter old man despondent of the good old days.” Michael Dorf, a professor at Cornell Law School, sees the increased snarkiness from Scalia and junior justice Elena Kagan as the inevitable product of the Internet culture. But David Kravitz, an ex-O’Connor law clerk now in private practice in New York City, argues with more concern that Scalia’s “zingers” should simply be ignored. Scalia’s “zinger-laden opinions are titillating,” Kravitz writes in The Washington Post, but “over time they coarsen the culture.”

      Alas, Scalia knows how to tease the media into recirculating his quote-bites. The only solution, it would seem, is an intervention by his colleagues. “Just knock it off, Nino,” one imagines the rest of The Nine telling him. But there is little reason to think Scalia would take the advice.

      Schedule note: This column takes a two-week break for the rest of August. If the French can do it, so can we. See you in September.

Partisan Attacks on Voting Rights Tested in Court

      John Roberts was right. A lot has changed in the 50 years since President Lyndon B. Johnson signed the Voting Rights Act into law. Voting rights, celebrated on a bipartisan basis back then, have now become a political tug-of-war between the two major political parties.
      The Democratic president signed the bill on Aug. 6, 1965, with prominent Republicans such as Senate GOP leader Everett Dirksen and Barry Goldwater looking on with approval. Today, however, the Republican Party is working to enact voter ID laws and other measures to make it more difficult to exercise the supposedly cherished right to vote.
      Texas Republicans got their come-uppance last week [Aug. 5] in a decision by the Fifth U.S. Circuit Court of Appeals that found the Lone Star State’s toughest-in-the-nation voter ID law to violate the Voting Rights Act. The law is illegal, according to a unanimous opinion written by the Republican-appointed judge Catharina Haynes, because it has a disproportionate impact on voting rights for African Americans and Hispanics.
      The Texas case and a separate pending case in North Carolina are being litigated under a weakened version of the Voting Rights Act thanks to Chief Justice Roberts and his four Republican-appointed colleagues. Roberts spoke for the conservative majority in the 2013 decision, Shelby County v. Holder, that effectively eliminated the law’s most effective provision in blocking anti-voting policies and practices by states with records of racial discrimination in voting.
      Roberts explained the court’s decision to block enforcement of the so-called preclearance provision by claiming that blatant discrimination against African Americans in the Deep South states and other covered jurisdictions is gone. With the law having rid the South of the worst forms of racial discrimination, Roberts decided to deep-six the old formula Congress had crafted in 1965 for applying the preclearance provision. Roberts said Congress could rewrite a new formula, but surely Republican obstructionism in Congress has blocked block any rewrite of the law.
      Roberts ignored the evidence that Congress had amassed to show the continuing instances of restrictive voting rights practices in the Deep South states. And, as could have been predicted, the states freed of the preclearance provision turned immediately to enacting restrictive laws that the Justice Department would have found to violate the law by “abridging” minority voters’ rights.
      After a fierce partisan battle, the Republican-controlled Texas legislature enacted a stringent voter-ID law that required would-be voters to present a government-issued photo identification at the polls. Tellingly, a concealed-carry gun permit satisfied the requirement, but a state university-issued student ID did not.
      Civil rights groups, joined later by the Justice Department, sued the state under part of the Voting Rights Act that remained intact. The act’s section 2, as significantly amended in 1982, prohibits any state from imposing “any prerequisite to voting” that “results in a denial or abridgement” of the right to vote “on account of race or color.” The “results” test was adopted after a Supreme Court decision that required proof of intentional discrimination under the provision.
      The plaintiffs presented detailed anecdotal and statistical evidence that Texas’s law was indeed having a “disparate impact” on minority voters. In her 147-page opinion, U.S. District Court Judge Nelva Gonzales Ramos agreed with the plaintiffs not only that the law was hurting minority voters but also that the Texas legislature intended to discriminate. Despite the ruling, the Fifth Circuit and the Supreme Court allowed the law to go into effect for the 2014 elections.
      Now, the appeals court panel has upheld Ramos’s disparate impact finding but rejected the finding of intentional discrimination. Ramos had relied too much on Texas’s past history of racial discrimination and the accusations from opponents of the law in finding intentional discrimination, the appeals court found. But the panel found that Ramos’s finding of disparate impact were “well supported” and many of the underlying factual findings uncontested by the state.
      The appeals court sent the case back to Ramos with an admonition that the parties should “work cooperatively” with the court to fashion a voter ID law that would not hurt minority voters. But Texas officials seem intent on trying to reverse the decision by asking either the full Fifth Circuit or the Supreme Court to hear the case.
      Meanwhile, a federal judge in North Carolina is weighing that state’s post-Shelby County voter law. Along with a photo ID requirement, the law also eliminated same-day registration, trimmed early voting, and abolished advance registration for 16- and 17-year olds.
      As in Texas, the risk of in-person voter fraud was used to justify the photo ID requirement despite the lack of evidence of actual voter impersonation. As for the other provisions, the GOP-controlled legislature cited only the flimsiest of administrative-convenience justifications in passing the law. Legislators declined to testify in the two-week trial that ended July 29. U.S. District Judge Thomas Schroeder now has the case under advisement.
      The Supreme Court gave the green light to voter ID laws in a fractured decision in an Indiana case back in 2008. The new cases flesh out the real impact these laws are having on minority voters. When one or both of these cases reach the Supreme Court, the justices need to give more attention than before to the obstacles that latter day vote suppressionists have devised to limit a cherished American right.

Marriage Equality: A Work in Progress

      Angie and Kami Roe married in Utah after a federal court struck down the state’s ban on same-sex marriage and then decided to start a family using assisted reproduction. Kami was delivered of a healthy baby girl early this year. But when the happy couple tried to list both women as mothers on Lucy’s birth certificate, the Utah Health Department’s Office of Vital Records and Statistics refused.
      Utah law allows a husband and wife both to be listed as parents if the couple uses a sperm donor to conceive. But officials told the Roes that Angie could be listed as Lucy’s parent only if she filed for stepparent adoption, an expensive and time-consuming procedure.
      With the same-sex marriage case pending at the Supreme Court, the Roes sued the state agency in federal district court in April, represented by the state affiliate of the American Civil Liberties Union (ACLU). The ACLU lawyers contended that the state’s decision violated the Roes’ right to equal protection of the law.
      In a hearing after the Supreme Court ruling in favor of marriage rights for gay and lesbian couples, state officials still tried to defend their decision in the Roes’ case, according to the account in the Deseret Morning News. Parker Douglas, Utah’s federal solicitor, told Judge Dee Benson that the records office wanted to ensure accurate statistics on genetic data. The state also had an interest in making sure parental obligations were assumed voluntarily and knowingly.
      Joshua Block, a lawyer with the ACLU’s LGBT Rights Project, told Benson the Roes should be treated just like an opposite-sex couple. “A married couple is a married couple is a married couple,” Block said. And Benson agreed. “I don’t think it’s a hard case,” the judge said as he issued a preliminary injunction in the Roes’ favor on July 15. A few days later, the state attorney general’s office said it would not appeal.
      Benson’s ruling is believed to be the first to deal with same-sex couples’ rights in the context of assisted conception since the Supreme Court decision, but there will be many more issues for courts to sort out in the brave new world of marriage equality. It will take time even for officials with no problems with same-sex marriage to sort out the implications of two moms, two dads, etc. And some of those who opposed same-sex marriage rights before the Supreme Court decision show no signs yet of accepting the ruling lying down.
      The most visible of those battles, the fights over same-sex wedding cakes, continued last month in Colorado. Jack Phillips, a baker in the city of Lakewood, asked the Colorado Court of Appeals to rule that he had a First Amendment right to refuse to make a cake for a gay couple’s wedding reception. The Colorado Commission on Human Rights rejected the argument and found him guilty of discrimination under state law.
      Lawyers for Phillips, an evangelical Protestant, told the judges in the July 7 hearing that Phillips also refuses to make Halloween cakes or cakes with racist themes, according to the account in the New York Times. Ria Mar, the ACLU lawyer representing the gay couple, said that Phillips’ religious beliefs were no license to discriminate. “[W]hen he opens a business that is open to the public, he is not free to sue those beliefs to discriminate,” Mar said outside the hearing.
      Colorado is one of 22 states that include sexual orientation in anti-discrimination statutes. Kentucky does not. So when a similar case arose there, the result was different. Hands on Originals, a Christian outfitter in Lexington, was sued after it refused to print T-shirts for a gay pride festival, according to a wrap-up by USA Today’s Richard Wolf. The county human rights commission ruled against owner Blaine Adams, but a county court reversed the decision earlier this year.
      Gay rights advocates say they are winning most of these cases. “The courts have very consistently held that this is not a free speech or religious freedom issue,” Sarah Warbelow, legal director at the Human Rights Campaign, told Wolf. But, as Wolf notes, the Supreme Court has yet to be heard on the issue. The court declined a year ago to hear a New Mexico photographer’s First Amendment plea to overturn a finding that he violated state law by refusing to photograph a same-sex wedding.
      Battles are also forming in Congress and in state legislatures. LGBT rights advocates responded to the marriage decision by renewing efforts for more anti-discrimination laws in the states even as religious conservatives were vowing to fight for religious freedom exemptions. Meanwhile, conservatives in Congress are pushing a bill, entitled the First Amendment Defense Act, aimed at protecting tax exemptions for religious or charitable organizations that refuse to recognize same-sex marriage.
      The fights seem to belie Chief Justice John G. Roberts Jr.’s complaint in dissent that the court’s ruling had cut off debate over same-sex marriage. In time, however, Roberts may prove to be right.
      Interracial marriage was still somewhat controversial when the court struck down anti-miscegenation laws in 1967. Today, mixed-race marriages occasion no comment whatsoever. “It’s my hope that the term gay marriage will soon be a thing of the past,” lead plaintiff Jim Obergefell said after the court’s new decision. “That from this day forward it will simply be marriage. And our nation will be better off for it.”