Same-sex marriage: Court on the couch

By Richard L. Hasen
March 26, 2013

Will Justice Anthony Kennedy’s support for a constitutional right to gay marriage doom the constitutionality of affirmative action and a key provision of the Voting Rights Act?  To answer this question, legal scholars need to know less about constitutional law and more about human psychology.

Consider  last year, when Supreme Court Chief Justice John Roberts, for example, surprisingly sided with the court’s four liberal members in upholding President Barack Obama’s healthcare law against constitutional challenge. It was a stunning choice for the conservative jurist. The reaction of Nate Persily, a leading U.S. election law scholar, was: “There goes the Voting Rights Act.”

At first, the connection between the two cases may seem tenuous. They don’t involve the same issues. The healthcare case was based on Congress’s power to regulate commerce and to tax. In Shelby County v. Holder, heard last month and expected to be decided in June, the court is considering whether Congress’s power to enforce equal rights, especially in voting, includes the power to continue federal oversight of elections in certain states that have a history of racial discrimination.

But Persily’s observation seems correct, and it illustrates how Supreme Court watchers often use amateur psychoanalysis of the justices. For example, a chief justice, feeling constrained by public opinion or concerned about the court’s legacy, may give in on one case in order to gain more political capital to spend on another controversial case.

This is the same premise I used a few years ago in predicting that a Supreme Court that would strike down the Voting Rights Act would be more likely to then uphold health law — and for me to predict now that Kennedy’s decision to side with proponents of same sex marriage in the two cases the court is due to hear this week could doom affirmative action and the Voting Rights Act.

In many controversial cases, the justices can appear impervious to public opinion. They may even relish voting against popular sentiment in the name of protecting free speech.

Consider Citizens United v. Federal Election Commission, the 2010 Supreme Court case in which the five conservative justices allowed corporations to spend unlimited sums in candidate elections, sending campaign finance regulation down a path of ruin. The justices had a chance last year to reconsider Citizens United, in a case out of Montana, and the pitch was that increasing public outrage about the flood of outside money in federal campaigns should push the court to reconsider. But no dice. Court observers tell me that the five conservative justices have no regrets about their opinion in Citizens United ‑ and see no reason to reconsider the outcome.

But other cases touch the public consciousness in different ways. For the Supreme Court to strike down the healthcare law, using legal theories that seemed to deviate sharply from how the court had analyzed economic legislation in past, would have been a hugely controversial decision.The justices knew it. Press reports after oral arguments in the healthcare case indicated that Roberts had gone “wobbly” on striking down the law and ultimately, in an act of statesmanship or fear (depending on one’s perspective), he backed down and sided with the liberals.

Kennedy may now hold the key to three major sets of decisions involving gay rights, affirmative action and the Voting Rights Act. In the gay rights cases, Garrett Epps noted, “Kennedy may have to choose between his two great legal loves, the sovereignty of the states on the one hand and the dignity and rights of gay men and lesbians on the other.”

But Kennedy has already written two Supreme Court decisions expanding gay rights. Though it is unclear how far he will go in the current cases, many expect him to move the court in the same direction.

Doing so may make Kennedy feel freer to go further than he has in the affirmative action and voting rights cases now before the court. He has long expressed skepticism about the use of race in college admissions and employment considerations, as well as its use in drawing legislative districts and promoting minority voting rights through the Voting Rights Act. But he has never gone so far on these issues as some of his more conservative colleagues, including Roberts, Justice Antonin Scalia and Justice Clarence Thomas, who seem ready to pull the plug on most race-based remedies.

The court could well move toward dismantling affirmative action in education this term, and put the nail in the coffin next term — in a Michigan case it just agreed to hear. It could end Section 5 of the Voting Rights Act this term, and then consider further challenges to remaining provisions in future years.

Kennedy, 76, could now be thinking about his legacy — and he might rest easier going all the way in the race cases if he feels his reputation as an expander of rights is secure thanks to his opinion in the gay marriage cases.

Indeed. Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, observes that this might be the ideal term for a Kennedy retirement, putting aside the fact that a Democratic president would appoint his successor. “Consider what Justice Kennedy might have accomplished when the Term ends,” Tushnet writes, “further restrictions on affirmative action; gutting or finding unconstitutional Section 5 of the Voting Rights Act, and ‑ of course ‑ substantially advancing the cause of gay marriage. From his point of view, that’s a near-perfect term.”

It is disconcerting the think that the future of these major issues turns on the justices’ deep subconscious considerations. It is sometimes said that a judge’s ruling depends on what he or she had for breakfast. While that is not true in the run-of-the-mill legal cases, it may be more true in contentious high-profile Supreme Court cases like these.

As one close observer of the court recently remarked, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”

That observer was Kennedy.



PHOTO (Insert B): Associate Justice Anthony M. Kennedy October 8, 2010. REUTERS/Larry Downing






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