Roberts Rules, Kennedy Soards...and Sparks Fly!

by Douglas W. Kmiec

Some years ago, I lunched with John Roberts in the U.S. Supreme Court dining room. Near the end of the meal, the newly confirmed chief justice told me he had been reading biographies and wondered what scholars might think were the hallmarks of judicial greatness.

John Marshall, our third chief justice, is often identified as "great" because of the manner in which he strengthened the institutional role of the Court. Marshall took the least-dangerous branch of government and gave it an unexpected stature by declaring that all branches of government would be subordinate to the Constitution. (Marbury v. Madison, 5 U.S. 137 (1803).) Legislative supremacy was to yield to constitutional supremacy, but which branch would have the final word on the Constitution's meaning? A high school civics student would quickly answer: "the courts."

Constitutional architect James Madison, among others, would see interpretation of the great charter as the peculiar function of the judiciary. Yet, here's the rub: One person's safeguarding of freedom is another's judicial activism. The application of judicial review, whether in statutory or constitutional matters, is far more difficult than the mere articulation of the concept. By this measure, Roberts already exceeds Marshall and fulfills Madison's vision, but that assessment is a concession usually made only by the prevailing party.

However, it is really too soon to declare Roberts to be Marshall's equal. At various times, the current chief justice has been pilloried by one or both of the elected branches. But then, the praise or criticism coming from Congress and the president tends to be merely an echo of partisanship. The incumbent president has not been hesitant to criticize the Court (remember that tongue-lashing over Citizens United?).

Roberts may have made a misstep here or there, perhaps, but perspective counsels that Congress and the president should send him a thank-you note. Much of the world is caught in the grip of authoritarian oppression. Far too many nations are dominated by sectarian strife, if not wholly irrational terror. Many of those nations also lack economic self-sufficiency, but such deficits are exceeded by the lack of any serious commitment to resolving dispute under law. That Chief Justice Roberts carries forward a Constitution made "for the ages" makes him great in his own time. Beyond that, Roberts's legacy will be defined by history yet to be written.

But as for last term, let's take a look at exactly what happened.

Lively Exchange

In the final days of the October 2014 term, Roberts mustered a 6-3 majority to save the Affordable Care Act's interlocking health reforms. (King v. Burwell, 135 S. Ct. 2480 (2015).) Those lacking enough money to buy insurance would receive a subsidy to acquire it from a so-called exchange. An isolated section of the ACA seemed to confine subsidies to insurance purchases from an "exchange established by the state." But to the consternation of dissenters, the majority found that the ACA allows for tax credits when purchases are made on federal exchanges as well. To the chief justice, the ruling manifested respect for the Congress to make reforms work as likely intended. To Justice Antonin Scalia, legal interpretation with an eye on consequences is "quite absurd." (Except, I suppose, when gun rights are at issue, but don't get me started.)

Equal Dignity

Was it absurd, though, for the chief justice to dissent from Justice Anthony Kennedy's soaring, near poetic, embrace of equality in the same-sex marriage case? (Obergefell v. Hodges, 135 S. Ct. 2584 (2015).) Roberts himself took his colleagues to task for displacing the ongoing democratic process in the states-36 of which, at the time the case was decided, had already secured equality for all in matters of marriage.

The loss of opportunity to democratically persuade was lamented in all four of the dissents. But passages in three mocked the writing of Kennedy as descending from the disciplined reasoning of the legendary Marshall to the "mystical aphorisms of the fortune cookie." One member was even prompted to state that he'd "hide his head in a bag" if he had to join such a ruling (classic Scalia). But Roberts's fidelity to law was delivered with kindness and even caution about disparaging those who see things differently, especially in matters of faith (where great clashes are now unavoidable).

A number of other important developments bear mention:

Disparate-Impact Housing

Justice Kennedy and the chief justice disagreed over how broadly to interpret the Fair Housing Act. Kennedy found five other votes in support of disparate-impact claims, which had been the view of some appellate circuits. In dissent, Justice Samuel Alito illustrated how such a ruling perversely discourages even the enforcement of health and safety measures, to the disadvantage of the poor. (Tex. Dept. of Hous. and Cmty. Affairs v. The Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015).)

Oh Jerusalem!

The president has the exclusive power to grant formal recognition to a foreign sovereign, according to another Kennedy opinion; here soaring rhetoric invalidated a statute requiring that a passport, upon request, list Israel as the country of birth for a person born in Jerusalem. The chief justice's dissent shows how a one-time presidential advocate (Roberts was an associate White House counsel to President Reagan) can successfully subordinate experience in support of a fair-minded assessment-and ultimately denial-of presidential authority. (Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).)

Smile When You Say That

Regarding North Carolina's oversight of dentists, the Court held that state-action immunity from antitrust liability depends on active state supervision in the regulatory process. (N.C. Bd. of Dental Exam'rs v. FTC, 135 S. Ct. 1101 (2015).)

Redrawing the Lines

A bare 5-4 majority, led this time by Justice Ruth Bader Ginsburg, upheld the people's initiative to delegate Arizona redistricting to an independent commission. The word legislature, wrote Justice Ginsburg, includes any lawful means authorized by the state to make law. Roberts dissented, arguing that the history of the 17th Amendment shows that the words "the legislature" could not have included "the people" without another constitutional amendment. (Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652 (2015).)

Sign Language

A local ordinance that identifies various categories of outdoor signs based on the type of information they convey amounts to content-based restriction, and so must satisfy a compelling governmental interest, Justice Clarence Thomas wrote for the unanimous Court, albeit with a number of separate concurrences. (Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015).)

Getting Religion

In an 8-1 decision written by Justice Scalia, the Court concluded that Title VII prohibits prospective employers from refusing to hire based on an applicant's religious practice when that practice can be accommodated without undue hardship. The need for accommodation does not have to be highlighted or specifically requested by the applicant. All that must be shown is that the need for the accommodation was a motivating factor in the employer's decision. (EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028 (2015).)

Baby on Board

In a 6-3 opinion written by Justice Stephen Breyer, the Court ruled that pregnancy disability need not always be accommodated. The Court applied the oft-utilized McDonnell-Douglas burden-shifting paradigm to determine when differential treatment of pregnant workers crosses the legal line. In essence, the Court held that if an accommodation is denied to a pregnant worker but granted to others with comparable disabilities, the plaintiff must prove that the policy imposes a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are insufficient to justify the burden. Here Justice Kennedy dissented, but without waxing poetic. (Young v. United Parcel Serv., 135 S. Ct. 1338 (2015).)

That's Not All

The 2014 term also yielded interesting developments in a number of other matters:

Legislative standing: The Arizona redistricting decision discussed above based legislative standing on the initiative's disqualification of the legislature per se.

Administrative searches: The Court required an opportunity for pre-compliance review. (City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015).)

Just compensation: The takings clause applies to personal property. (Horne v. Dept. of Agric., 135 S. Ct. 2419 (2015).)

Administrative law: The Court rejected a D.C. Circuit invention that required notice-and-comment rule-making procedures prior to modification of interpretive rules. (Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (2015).)

Confrontation clause: A small child's report of abuse to his or her teacher is admissible in a criminal proceeding and does not violate the Sixth Amendment. (Ohio v. Clark, 135 S. Ct. 2173 (2015).)

Tax matters: The dormant commerce clause invalidates a state personal income tax on income earned anywhere, but it allows no offset for taxes paid to other states. (Comptroller v. Wynne, 135 S. Ct. 1787 (2015));

License-plate speech: In a case that became ever more poignant in the wake of events in South Carolina, the Court held that because state-issued license plates constitute government speech, Texas can decline to issue a specialty license plate depicting the Confederate flag. (Walker v. Tex. Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (2015).)

Posting threats: Threats sent over the Internet-in this case via Facebook-need more than negligence to support a federal criminal conviction; specific intent is required. (Elonis v. U.S., 135 S. Ct. 2001 (2015 ).

Death penalty: Although the Court held 5-4 that speculation over lethal injection was insufficient to overturn a trial court ruling that let capital sentences be carried out in Oklahoma, the real news may have been Justice Breyer's dissent: He called for briefing on the legality of the death penalty itself, noting that in his view (joined by Justice Ginsburg), "it is now time to reopen the question." (Glossip v. Gross, 135 S. Ct. 2726 (2015).)

So stay tuned. If you think the sparks flew in Obergefell and Burwell, just wait for the day when the Court takes up the question of whether the death penalty, as administered in America, transgresses the Eighth Amendment.

Whether or not that happens, we can all look forward to the October 2015 term, which Dean Erwin Chemerinsky of the UC Irvine School of Law will write about in California Lawyer's October issue.

And perhaps the upcoming term will give all of us further insight about what, exactly, Justice Scalia sees inside that bag.

Douglas W. Kmiec, a former U.S. ambassador, is the Caruso Family Chair in constitutional law and human rights at Pepperdine University School of Law.

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