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Sep. 2, 2015
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.
#307382
Donna Mallard
Daily Journal Staff Writer
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