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L.Steven Emmert
Virginia Appellate News & Analysis by L. Steven Emmert - Inside the Case Decisions, RUlings & Opinions




[Posted June 26, 2015] The ink isn’t even dry on yesterday’s signal ruling in King v. Burwell; this morning, the Supreme Court issues Obergefell v. Hodges, the much-anticipated ruling on marriage equality. By a 5-4 vote, the Court reversed the Sixth Circuit and rules that states must license same-sex marriages. Justice Kennedy announces the decision of the Court; as I understand it, each of the four dissenters has written a separate opinion.


This one is going to take a while to digest, as it looks to be quite long. I’ll post analysis of it a bit later in the day. One thing I can tell you: this isn’t the partial victory that some analysts had forecast, where the Court would have required states to recognize such marriages celebrated elsewhere but stopped short of requiring them nationwide. This is an undiluted win for the proponents of marriage equality, as now all 50 states must allow the ceremony.

Okay, I’ve read all five opinions and all 103 pages. As usual, I won’t go into the level of detail that you’ll find elsewhere; for that, you can check out Adam Liptak’s analysis for the New York Times, or SCOTUSblog’s two discussions – one in “Plain English” by Amy Howe and one by courtwatcher Lyle Denniston. These will be my thoughts on some of the forest-level issues, with an occasional foray into leaves and branches.


As we’ve often seen before, Justice Kennedy maintains his role – in my eyes, anyway – as the most powerful man in American government, because when the Court is closely split, he gets to decide what American law is. Obergefell emphatically produced just such a close split, and today, as in US v. Windsor two years ago, he sides with the four liberal justices to decide the case. You’ll find his opinion to be packed with noble rhetoric, and if you happen to agree with his vote, you’ll find yourself cheering, or maybe shedding a tear of joy. If you disagree with him, the citations to lofty principles will start to get old quickly.


Kennedy begins by setting out the historical framework for the issue, noting that until very recently, no one even entertained doubt about the male-female component of a marriage. He then cites some of the same principles that decided Windsor, including the fact that same-sex-marriage bans demean the couples who just want the same rights as everyone else.


The meat of the discussion lies in the realm of due process, specifically of the substantive variety. He finds four justifications for a due-process right to marriage in this context, and understandably consigns the contrary position to the losing arguments in Loving v. Virginia, when the Court overturned our Commonwealth’s antimiscegenation statute.


He then refers to the Equal Protection Clause as a supplemental justification for his conclusion, noting that the government conveys a swarm of benefits upon spouses. He sees no legitimate basis for restricting those benefits to opposite-sex couples.


As I mention above, each of the four dissenters writes an opinion. The chief justice’s acknowledges that many Americans will cheer this news, and he refuses to throw a wet blanket on their celebration, but he warns that the path the Court took to get to this destination is a dangerous one, since in his view it puts important policy decisions in the hands of nine unelected men and women. Marriage equality may even be a good idea, and the nation is unquestionably moving toward full acceptance of it; but the Supreme Court has just blown through the façade of democratic decisionmaking and forced a single conclusion upon everyone.


The majority acknowledges this fact and has an answer for it: when a subset of our citizenry is being deprived of a right, the courts needn’t wait for the political process to carry it out; courts exist to protect the rights of minorities against the tyranny of the majority.


The chief justice compares today’s decision to the only case that he thinks can justify it – the infamous Lochner v. New York ruling, which the Court long ago abandoned. That case, too, turned on an ostensible liberty interest: the right of bakery employees to contract to work as many hours per week as they felt like. Of course, the real rationale was that bakeries wanted to get as many hours out of their employees as they could, regardless of the health consequences. The chief sees this as the reincarnation of that approach.


The next dissent comes from Justice Scalia. In my analysis of King v. Burwell yesterday, I chided Scalia for his intemperate language in dissent. Today’s opinion is more of the same; in my opinion, it’s strident and almost childish. I write this even as I acknowledge that he has an excellent legal point to make – more on that below – but he makes it in a way that turns the reader off instead of furnishing a reason to agree. Ridicule is not a substitute for reasoned argument, but Scalia has chosen to employ it twice in a row.


In this regard, I was reminded today of this passage in a book on how to convince judges: “Don’t show indignation at the shoddy treatment your client has received or at the feeble and misleading arguments raised by opposing counsel. … Ideally, you should evoke rather than display indignation.” A. Scalia and B. Garner, Making Your Case: The Art of Persuading Judges (2008) at 34.


Justice Thomas’s dissent focuses on his utter rejection of the concept of substantive due process. As he sees it, liberty means freedom from governmental oppression, not a right to governmental benefits. And in his view, the latter is what the petitioners want – the same marital privileges that heterosexual spouses enjoy. But the due process clause doesn’t convey the right to receive benefits; it prohibits the government from doing three things to you unless it uses due process of law.


Justice Alito adds many of the same points, but writes to warn of the future of judicial review if Supreme Court justices can create unenumerated civil rights merely because they find those rights to be a good idea.


A word about the Equal Protection Clause: there isn’t nearly enough discussion of it. The chief is right that Kennedy deals with it in an offhand way – “And, oh, by the way, the Equal Protection Clause helps the petitioners, too” – without engaging in serious equal-protection analysis. But the chief doesn’t exactly go through that analysis to reach the opposite conclusion, either; he summarily says that there’s a rational basis for the distinction between the two types of marriage.


That’s fine, but having read briefs on this point, I believe that this challenge calls for at least heightened scrutiny, rather than the hands-off approach that rational-basis analysis provides. No one – not one justice – really analyzes today the question whether same-sex-marriage prohibitions deny homosexual couples the equal protection of the thousand-plus legal benefits that the law confers upon spouses. This, to me, is potentially the most powerful argument on behalf of the petitioners. It is the redheaded step-child of today’s opinions.


Two years ago, when I wrote about US v. Windsor, I noted that I was glad the case came out the way it did, but I absolutely hated the path that the majority followed to get to it. In Windsor, the Court took the case even though it didn’t really have an appellant, so I didn't think it had jurisdiction. The named petitioner, the United States, asked the Court to grant cert and then affirm. I wrote back then that I had always believed that you have to be aggrieved in order to appeal; while it’s possible to proceed without an appellee, if you don’t have an appellant, then you don’t have an appeal.


I find myself looking at Obergefell the same way. I believe that same-sex couples should be allowed to marry. The usual justifications for restricting marriage to opposite-sex couples just don’t hold up under even surface-level analysis. (For example, the rationale relied upon by the several dissents is the promotion of procreation. Under that theory, the government could prohibit a post-menopausal widow from remarrying late in life, because she could never have children. But nobody on the court thought of that, I suppose.) These people are just that – people – and they deserve the same rights and privileges that the rest of us have.


But basing this ruling upon an amorphous liberty interest and the Due Process Clause really is scary, assuming you want your legislatures instead of your judge making laws for you. The dissents harp on the fact that rights can’t be conjured up by a simple majority vote of the nine Robes; they have to have their bases in the Constitution or in statutes. Cynics have been known to complain that American law is just what five votes can agree upon – nothing more and nothing less. If that’s true, as today’s dissenters repeatedly warn, it’s very bad news for our democratic republic.



[Posted June 25, 2015] On a day that could have been “Obamacare’s Last Stand” (my fellow history fans will catch the reference to today’s anniversary of Col. Custer’s unfortunate foray into what the Lakota called Greasy Grass), the Supreme Court of the United States delivered a signal win to the Obama Administration. Today’s vote in King v. Burwell was 6-3, with the Chief Justice writing the majority opinion. Justice Scalia fires up his dissent pen, writing on behalf of Justices Thomas and Alito.


This essay will be abbreviated; there will be plenty of legal and political coverage of the decision elsewhere, and I don’t propose to compete with that. I’ll mention here a few items that caught my attention as I read the 42 pages that constitute the majority and dissenting opinions.


This appeal involves the Affordable Care Act’s tax-credit provision. The Act requires states to set up health-insurance exchanges. If a given state – say, for instance, Virginia – refuses to set up an exchange, then the Secretary of HHS is authorized to establish “such Exchange” in that state.


In order to make required insurance affordable, the Act provides federal tax credits to citizens who enroll in insurance coverage through “an Exchange established by the State under §1311” of the ACA. The question in this case is whether people in states with federally established exchanges are entitled to the tax credit. That matters a lot, because without the tax credit, millions of citizens in many states will not be able to afford insurance, defeating the legislation’s purpose.


The majority’s first task is to decide whether the phrase “established by the State” is ambiguous. On its face, it looks like it isn’t; the Act elsewhere defines State as including the fifty states of the Union, plus the District of Columbia, and the HHS Secretary doesn’t fit under that tent. If you look only at this clause, it seems that only state-established exchanges will generate the tax credit, and Virginians are out of luck.


But ambiguity can be latent as well as patent, and the Court takes that approach to resolve the case. It finds that when viewed in the context of the entire Act, the questioned phrase can include exchanges established by the feds in addition to those directly established by states. Given that key to the analytical kingdom, the majority finds that the proper way to interpret the provision is to include all exchanges. 

The Court finds that this is the only way to avoid the very problem that prompted Congress – okay, the Democrats in Congress – to pass the act in the first place; if the subsidies fall, the entire program risks entering a “death spiral.” As the Chief concludes, "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them." The only way to carry out Congress's purpose, he believes, is to ensure that subsidies apply across the nation.


Cue the Court’s current Great Dissenter, Justice Scalia.


I agree with Scalia sometimes; I disagree with him other times; but in most instances I enjoy his scathing dissents, if only for the bloodbath of words. Today’s effort is 21 pages of blasting the majority’s reasoning. But irrespective of the merits of this case, I found that this particular dissent turned me off at times; it was less legal analysis than simple ridicule. More than once, after he trashed a majority holding, I found myself thinking that, even where I agreed with him, he could have made his point in less offensive terms.


But I don’t get any input into his Honor’s approach, and I won’t even pretend to deny that he has some unassailable points. The majority unquestionably engages in some analytical contortions in order to make the case come out the way it does. But Scalia’s response to the majority’s strongest points – parts C and D of the slip opinion – is, in my view, half a step above name-calling. For example, he half-jokes that the Court has taken such good care of the Act in its decisions, it should be called “SCOTUScare.” And in his concluding paragraph, Scalia laments “the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorite.”


This, translated, is a charge that the majority has taken an outcome-driven approach to the legal analysis – deciding first how it wants the case to come out, and then figuring out by what convoluted route it can possibly get there, sweeping inconvenient facts and legal principles under the rug if necessary.


Does that sound backward to you? Perhaps you believe that reasoned legal analysis should determine the outcome of appeals, instead of a desired outcome’s forcing the legal analysis, no matter how strained that reasoning has to be. Perhaps you think that courts should deal with even troublesome facts, rather than ignoring them when they become inconvenient to that desired result. Maybe you even believe that such an inversion of outcome over principle never actually happens in legal proceedings, and that those sweeps under the rug never happen.

If so, I won’t insist that you leave Fantasyland and come over to Earth; but trust me, this kind of thing happens here. It happens at One Capitol Street, it happens at Ninth and Franklin, and it even happens in your local traffic court. This is reality. I'm not saying that it happens in every case, or even a majority of the time; but it happens a lot more often than you probably imagine.


Meanwhile, it’ll be easy to predict some of the reaction to today’s decision. The far right will consign the Chief Justice to the category of Traitors to the Cause; the Obama Administration will breathe a sigh of relief; health-care providers’ stock prices will rise. It’s even conceivable that some of the handful of states that have created exchanges will abandon them, safe in the knowledge that Uncle Sam will cover them. Beyond that, I’d be too far into the realm of speculation.


Lost in today’s fuss over the ACA is the other decision handed down today, in Texas Dept. of Housing v. Inclusive Communities Project. For those who handle housing discrimination claims, this case has massive importance; the Court held that a plaintiff can state a claim based on disparate impact, without proving a discriminatory purpose. If you don’t practice in this field, trust me: this is a huge decision. It’s also a bit of a surprise, as I had expected the Court to rule the other way.


So, what’s left of this highly entertaining Term? There are five still-undecided cases remaining on the Court’s docket. The highest-profile one is Obergefell v. Hodges, the appeal involving same-sex marriage. That one looks likely to come down as a 5-4 split, with Justice Kennedy once again flexing his muscles as the most powerful person in our government, since he quite often gets to decide what American law is. We should also see a decision in an important redistricting case from Arizona, deciding whether the act of redistricting is inherently legislative, so it can’t be delegated to an independent commission.


In order to close out the usual end-of-Term rush, the Court will hand down decisions tomorrow and Monday. If you’re holding your breath waiting for it, my best guess is that Obergefell will come down on Monday.



[Posted June 19, 2015] Have you ever wanted to sit down and chat privately with the justices of the Supreme Court, to ask them to muse on judging and the life of a justice? Maybe ask for a few hints on how to become a better advocate? Well, I can’t offer you a ticket into the inner sanctum at Ninth and Franklin, but here’s the next-best thing: William & Mary’s Law School has produced a roughly two-hour video entitled, “The Art of Appellate Advocacy,” featuring a group interview with six members of the court. It’s been uploaded to the school’s website, and is available here.


The discussion is led by W&M Law Assistant Dean Laura Heymann, who sits down with former Chief Justice Kinser, current Chief Justice Lemons, plus Justices Goodwyn, Millette, Mims, and Powell. Justice McClanahan couldn’t attend the taping, and the program was shot before Justice Kelsey was elected to the court. Still, getting insight into the minds of five of the seven active justices is insight that’s well worth your time.


I got an opportunity to watch the entire program a couple of months ago. Technically, it’s beautiful; the video is sharp and the audio quality is exquisite. One minor technical flaw: occasionally the audio and video are out of sync by just a hair – perhaps an eighth of a second – and that can be disconcerting if you’re watching in high-def. But you’ll learn how the justices analyze a brief, how they divide the court’s chores, and even what life experiences shaped their careers. (This kind of information isn’t available at Target, or even at Saks Fifth Avenue.) You don’t have to set aside a block of two full hours to watch the entire program; it’s helpfully divided into segments. If you want, you can even click on a single justice and listen to a “filleted” version that’s all him, or her.


That being said, I’ll be candid: I think the program is misnamed. If it had been called “The Art of Appellate Judging,” or “The Art of Appellate Decisionmaking,” I would have been fine with it. But as I recall what I saw, there’s actually very little direct, practical advice for how to become a better advocate. It’s a great peek into the inner workings of the court, and even into the inner workings of some of the justices’ thought processes. But the viewer is left to try to figure out how to apply some of this new information into an appellate practice.


I’ll put it this way: It’s like a panel discussion among art critics on what makes a good sculpture. They can tell you how they go about judging an art show, but a critic can’t tell you how to turn a marble block into something remarkable. For that, you need to consult a sculptor. This project, in my opinion, tells you what the critics think but doesn’t contain anything from the sculptors.


Now, please don’t let this minor critique of the program’s name dissuade you from watching it. I enthusiastically recommend that you take the time to view it, and maybe go over some of the more important sections more than once. If you’re an appellate advocate, or even if you’re just curious about how the court operates on the inside, you won’t regret investing the time to watch it.

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