Supreme Court Conservatives' Famous Last Words

To see what lies ahead for the high court’s conservatives in October Term 2015, columnist Tamara Tabo looks back at some of the famous last words of last Term.

Obergefell v. Hodges, decided by the U.S. Supreme Court last June, made history by creating a constitutional right to same-sex marriage.

Obergefell was also noteworthy because each of the Court’s conservative justices — or, at least, its not-consistently-liberal justices — had something separate to say, almost hearkening back to the days of seriatim opinions. Justice Anthony Kennedy wrote the majority opinion, joined by the four liberal justices. But each of the other conservatives chimed in as well, with all four Justices filing their own dissenting opinions.

To see what lies ahead for the high court’s conservatives in October Term 2015, it pays to look back at some of the famous last words of last Term.

Kennedy

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

In Obergefell, Anthony Kennedy, like George Baker in a black robe, sang a song of love.

Justice Kennedy is not a stupid man or a bad judge. It’s just that when confronted with certain emotionally charged issues like race, unborn babies, sex, and love, Justice Kennedy gets all gooey.

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In law, gooeyness begets gooeyness. When judges issue decisions with indecipherable reasoning, no matter how delicate the sentiment behind it, the legal questions don’t go away. And the cases come back.

This Term, the Court will return to issues that have been previously coated in Kennedy’s judicial goo, including diversity in schools and access to abortion. Just remember that a Kennedy opinion is not meant to clarify. It is meant to express the ineffable.

In OT ‘15, look for:

AMK wrote the first go-round in Fisher. He’s also responsible for the clear-as-mud holding in the 4-1-4 decision in Parents Involved in Community Schools, establishing student body diversity as a compelling state interest.

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SCOTUS hasn’t yet granted cert, but it likely will. With Kennedy’s past influence in abortion cases like Planned Parenthood v. Casey and Gonzales v Carhart, it’s unlikely that anyone but Anthony Kennedy understands Anthony Kennedy’s opinions well enough to apply them here.

Roberts

“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

Right about now, Chief Justice John Roberts might be asking himself, “Why did I bother being a legal contortionist in order to uphold key provisions of Obamacare and preserve the precious will of the people, as voiced through the actions of their elected officials, if Anthony Kennedy just gets to circumvent the legislative process and make law by judicial fiat anyway?”

That’s what I’d be thinking if I were him, anyway.

In OT ‘15, be on the look out for JGR in:

The Court decided Miller by a 5-4 vote, with JGR writing the dissent joined by Justices Scalia, Thomas, and Alito.

  • Evenwel v. Abbott, on the proper meaning of the “one person, one vote” principle when apportioning legislative districts.

The Chief Justice who wrote for the majority in Shelby County v. Holder just might have an interest in the particularities of voting rights.

Scalia

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

In Obergefell, Justice Scalia joined the other dissents, but wrote separately “to call attention to this Court’s threat to American democracy.” He apparently also wrote separately to call his colleagues unflattering names and turn some clever phrases.

After all, a Scalia opinion is not meant to woo the opposition. It is meant to alert the opposition to its own stupidity.

Be prepared for possible Scalia apoplexy in:

  • Utah v. Strieff, involving the attenuation doctrine of the Fourth Amendment’s exclusionary rule.

Justice Scalia authored the opinion for the five-Justice majority in 2006’s Hudson v. Michigan, a leading case extending the attenuation exception. He also wrote for the majority in 1988’s Murray v. United States, which uses the closely related “independent source doctrine” to limit the effect of the rule.

Justice Stephen G. Breyer wrote a vigorous dissent in Hudson. So, the Court’s preeminent textualist and its preeminent pragmatist may square off again this Term.

Justice Scalia’s cantankerous Obergefell dissent shows that the 79-year-old justice has plenty of piss and vinegar left in him. So, the next time Stephen Breyer explains his bruises and fractured bones by saying that he fell off his bicycle again, somebody might want to check the bumper of Scalia’s car for dents.

Thomas

“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”

Contrary to those who suggest that Clarence Thomas is dumb or lazy, his opinion in this case is philosophical and reflective.

With deep roots in the natural law tradition and a, let us say, “casual” relationship with stare decisis, Thomas often runs farther afield than many of his colleagues are willing to go. You won’t find John Roberts, for example, railing on the basics of substantive due process or slapping an intellectual defibrillator on the Privileges or Immunities Clause or trying to overrule the Slaughterhouse Cases.

Justice Thomas so often dissents alone that even getting just Justice Scalia to join the Thomas dissent in Obergefell made it seem downright crowd-pleasing.

CT, former chair of the EEOC, has also been a solitary dissenter in plenty of past employment discrimination cases. So, in OT ‘15, keep an eye on:

  • Green v. Brennan, an employment discrimination case involving constructive discharge.

In OT 2014, Thomas dissented alone in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores. He also stood alone in 2004’s Pennsylvania State Police v. Suders, which also involved constructive discharge.

Alito

“This understanding of marriage, which focuses almost entirely on the happiness of persons who chose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”

Whereas Chief Justice Roberts suggested in Obergefell that he might endorse same-sex marriage as social policy, and Justice Scalia claimed he didn’t much care, Justice Samuel Alito staunchly defended traditional heterosexual marriage.

Justice Alito has emerged as quite the heartthrob on the Supreme Court in recent terms . . . at least among those of us whose hearts are wont to throb when someone rallies to defend social conservatives or who calls out anti-death-penalty activists for engaging in “guerilla war,” as Alito did in last term’s Glossip v. Gross.

This Term, look for:

Justice Alito wrote the majority opinion in last term’s Harris v. Quinn, in which the Court held 5-4 that an Illinois aw authorizing the collection of agency fees from non-union members violated the First Amendment. In Harris, Alito wrote disapprovingly of Abood v. Detroit Board of Ed, the primary precedent used to uphold the law below. But the Harris Court nevertheless sidestepped the general issue of compulsory union membership by finding that the petitioners were not full-fledged state employees. In Friedrichs, look for Justice Alito to lead the charge in facing the question head-on.

The Court has not yet granted cert. If it does, expect Alito, who wrote for the majority in Hobby Lobby v. Burwell, to be vocal.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.