The following is an article I wrote in February of 2005 about a debate on foreign law influences upon the American legal system between originalist Justice Antonin Scalia and activist Justice Stephen Breyer. I hope you find it illuminating.
WHO WILL SPEAK FOR YOU?
By Edward L. Daley
A few weeks ago I was watching a program on C-Span pertaining to the impact of foreign court opinions upon the U.S. justice system. The primary participants in the discussion were Supreme Court Justices Antonin Scalia and Stephen Breyer, and the event took place at the American University Law School in Washington D.C.
The debate revolved around questions asked by a moderator named Professor Norman Dorsen, and the first multi-part question asked was, “When we talk about the use of foreign court decisions in U.S. Constitutional cases, what body of foreign law are we talking about? Are we limiting this to foreign constitutional law? What about cases involving international law, such as the interpretation of treaties, including treaties to which the U.S. is a party? When we talk about the use of foreign court decisions in U.S. law, do we mean them to be authority, or persuasive, or rhetorical? If, for example, foreign court decisions are not understood to be precedent in U.S. Constitutional cases, are they nevertheless able to strengthen the sense that U.S. law assures a common moral and legal framework with the rest of the world? If this is so, is that in order to strengthen the legitimacy of a decision within the U.S., or to strengthen a decision’s legitimacy in the rest of the world?”
Some question, huh? I don’t think I’d be comfortable trying to answer it all in one fell swoop, and apparently neither did the two justices. Justice Scalia began his reply by stating that most of the parts of it should be posed to Justice Breyer, simply because Scalia does not use foreign law in the interpretation of the U.S. Constitution.
He stated that he will use it when interpreting a treaty, because treaties are based upon a mutual understanding of the law by the signatories thereof. That seemed like a no-brainer to me, and the point was not argued by Breyer.
Scalia went on to say that, aside from that, he refuses to use foreign decisions in Constitutional law. He argued that some justices refer to foreign law because they want to feel assured that we have the same “moral and legal framework as the rest of the world.” He then pointed out, quite matter-of-factly, that we don’t have the same moral and legal framework, and we never have.
He continued by referring to the Federalist Papers, saying that they are full of statements which make it clear that our founding fathers had little respect for the laws of European countries in that day and age, citing a passage by James Madison to that effect. He then asked the rhetorical question, should we be willing to change our laws based upon the fact that many of them are not in step with the vast majority of foreign law decisions, mentioning the issues of abortion on demand, and the exclusionary rule relative to ‘Miranda’ as examples.
He went on to ask the question, why haven’t we changed these laws if the court feels we should use foreign law… or do we just use foreign law selectively, whenever it agrees with what an individual justice would like a particular case to say? He then asked what the criterion is for citing foreign law, if doing so is not meant to be authoritative.
Justice Breyer responded by saying, among other things, that law emerges from conversations among law practitioners, law students, and academics. He recounted an event at which he was first confronted with the question of whether or not foreign law decisions should be considered by U.S. courts. He described a past seminar he’d attended with various judges and law makers wherein a Congressman had remarked that he thought it was a terrible idea to use foreign law in U.S. court decisions.
Breyer reflected that he’d told the Congressman “Of course foreign law doesn’t bind us in Constitutional law. Of course not.” But, he added, these [foreign justices] are human beings who often have problems which are similar to our own.
He mentioned that the societies about which these foreign decisions are concerned, are becoming more and more democratic, and that in a case which is similar to one he might face as a Supreme Court Justice, “why don’t I read what he says, if it’s similar enough?” Apparently the Congressman he was speaking to at the time said fine, go ahead and read it, just don’t cite it in your legal opinion.
Breyer’s response to this remark had been that since foreign courts cite our Supreme Court’s findings in their decisions, he didn’t see anything wrong with citing theirs in his. He added that by doing so, we might actually lend credibility to their laws, or as he put it, “give them a leg up.” The Congressman’s response was that Justice Breyer should simply write them a letter of approval instead, if he felt that way.
At that point, Breyer seemed to stall, relating that the Congressman had “made a point,” and then failing to explain why he felt that position wasn’t essentially correct. He went on to refer to Justice Scalia’s implication that we do not understand enough about any particular foreign decision to cite it responsibly, asking, “how do we know we cite both sides” of an argument in foreign law cases? “How do we know we look for everything?” His answer to both of those questions was that such problems arise in every sort of citation. “A judge can do what he’s supposed to do, or not,” he continued, “and we hope they do what they’re supposed to do.”
This is where he lost me, and, apparently, where he lost Justice Scalia as well. After all, the fact that American justices face decisions without looking at every possible viewpoint available in the written law, has nothing to do with the fact that foreign law systems are often completely alien to our own. It’s not a question of whether or not we are able to see every bit of available information, but rather that the systems by which other countries arrive at legal decisions are usually not very similar to ours. Also, as Scalia pointed out, other legal systems may only have adopted part of a law that has originated in the U.S. (e.g. Miranda), and ignored other parts (e.g. the exclusionary rule) that are just as important to the fundamental principle underlying that law.
I found it interesting that Justice Breyer first announced that foreign law is “of course” not binding in Constitutional law, yet followed up that point by giving reasons, ostensibly, why it should be.
Justice Scalia seemed just as confused as I was by certain points that Breyer had made, beginning his retort by declaring, “I don’t know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is that I don’t know what they ought to do. What is it that they ought to do? You have to ask yourselves, why is it that foreign law would be relevant to what an American judge does when he interprets – INTERPRETS – not writes [the law]… it [foreign law] is very useful in devising a Constitution, but why is it useful in interpreting one?”
Scalia then explained his basic theory as it relates to the interpretation of the Constitution, saying that he tries to understand what it means, and what society understood it to mean when it was adopted, adding that his philosophy used to be orthodoxy prior to the 1940s. He stated that foreign law is irrelevant to anyone who embraces that philosophy, with the exception of old English law, because of the fact that many of our legal definitions were taken from that to begin with.
He went on to relate two other approaches to interpreting the Constitution. The first, he explained, was the notion that the Constitution doesn’t mean what it meant when it was first ratified, but that it changes from era to era to conform to, as Scalia then quoted, “the evolving standards of decency that mark the progress of a maturing society.” – Troy v. Dulles, 356 U.S. 86, 101
At that point he mentioned that he detests that phrase, arguing that societies don’t necessarily mature, and that “sometimes they rot.” However, he opined, even if you buy into that theory, you are still primarily concerned with the standards of decency of Americans, not foreigners, and that the only way a person would ever be willing to accept the standards of other countries as being applicable to our standards, is if that individual espoused a third way of interpreting the Constitution.
That third philosophical approach, Scalia continued, says “I am not looking for the evolving standards of decency of American society, I’m looking for what is the best answer in my mind, as an intelligent judge. And for that purpose, I look to other intelligent people, and I talk sometimes about conversations with judges, and lawyers, and law students. Do you [the law students in the audience] think you’re representative of American society? Do you not realize you are a small, cream at the top, and that your views on innumerable things are not the views of America at large? And doesn’t it seem somewhat arrogant of you to say I can make up what the moral values of America should be on all sorts of issues?”
The whole time he was saying this, Breyer looked as if he’d just swallowed a prune pit, since he clearly understood (as did I, and probably everyone else watching) that Scalia had just implied he was arrogant. Once Justice Scalia had concluded by saying that he did not wish to undertake the responsibility of deciding what is moral and what isn’t for all of society, Justice Breyer commented, “I think that’s pretty good.”
“It’s really because I think, and I think many judges think, that your own moral views are not the answer, that people look other places for trying to find out – how to find answers,” he added. Yet once again his statement didn’t have any bearing upon the issue raised. The question isn’t whether one should look for answers as to what may be the morally right thing to do, but rather, where it is they’re looking!
Breyer pointed out that there is “nothing in ‘Blackstone,’ ‘Bracton’ or even ‘King Arthur,’ that says that cruel and unusual punishment – to determine that – you cannot look, except to England, or except to the United States… So, there’s nothing barring me.” This statement is a dead giveaway that Breyer believes it is reasonable to define morality in America based upon what other countries think, or upon what members of the legal profession think. Does it really need to be written that American moral issues should be decided by the American citizenry? Isn’t that just plain common sense?
Apparently Justice Breyer doesn’t think so. Even though he goes to the trouble of saying once again that he doesn’t look to himself to determine the answers to moral questions within the law, the undercurrent running throughout his remarks is that he’s willing to let someone other than the American people make the call.
“But I’m thinking, Well, on this kind of an issue you’re asking a human question, and the Americans are human – and so is everybody else,” Breyer states, “and I don’t know, it doesn’t determine it, but it’s an effort to reach out beyond myself to see how other people have done… So I’d have to say I’d rather have the uncertainties and I’d rather have the judge understanding that he’s looking but it’s not controlling. And I’d rather have him use it with care, hoping that the judges won’t lack the control to do so. Then I would like to have an absolute rule that says legally never. And the fact that I cannot find such an absolute rule – legally never – even in King Arthur – gives me some cause for hope.”
Hope? Hope of what?
Justice Scalia carried on the conversation by repeating the points he’d made before, discussing in greater detail certain cases in support of his argument, and stating that “One of the difficulties of using foreign law is that you don’t understand what the surrounding jurisprudence is, so that you can say, you know, Russia follows Miranda, but you don’t know that Russia doesn’t have an exclusionary rule.”
He said that it was unfair to compare American death penalty cases, and the issue of whether it is cruel and inhuman for someone to wait a dozen years before being executed, to similar foreign cases. His basic point was that foreign and American cases were not comparable because of the enormous differences in the way each system deals with the death penalty to begin with. The question of what might be considered cruel and unusual in one country would not apply to another for that reason, and, therefore, would be rendered irrelevant.
This argument seemed to be completely lost on Breyer, as was evidenced by the fact that he responded with the following statement: “Well, it’s relevant in the sense that you have a person who’s a judge, who has similar training, who’s trying to, let’s say, apply a similar document, something like cruel and unusual or – there are different words, but they come to roughly the same thing – who has a society that’s somewhat structured like ours.”
At that point Justice Scalia wisely decided to ask the moderator for a new question, and the professor’s response was to say that, “Although you have suggested your view about this, I’m still unclear about what the harm or risk is of considering foreign sources that may bear on problems that are common to both countries. For example, you mentioned the – both of you have mentioned the death penalty. Why shouldn’t U.S. constitutional decisions take account of shifting world standards on such things as the death penalty, on the execution of juveniles, on the execution of the mentally ill? Are we that far from the rest of the world in terms of the way life is lived?”
The first thing I thought after hearing this was WHAT AN IDIOT! However, even though I suspect that Scalia was thinking the same thing, he showed enough restraint to continue the conversation without becoming insulting to his host, and eventually related that in his dissenting opinion regarding a homosexual sodomy case, he’d pointed out that the court had cited only European law. “Of course,” remarked Scalia, “they [the Europeans] said it not by some democratic ballot, but by decree of the European Court of Human Rights, who was, you know, using the same theory that we lawyers and judges and law students – we know what’s moral and what isn’t.”
Breyer attempted to water down the argument, by infusing some mundane legal point into the mix, but the issue’s course was quickly corrected by Scalia when he related that, “it [the matter of selectively citing foreign decisions] lends itself to manipulation. It lends itself – It invites manipulation.” His subsequent remarks on that score were nothing short of eloquent, and were masterfully reproachful of Justice Breyer’s opinion without actually being too insulting to the man personally.
Justice Breyer was quick to change the subject, saying, “Can I go into a different topic? Because I – it’s slightly – it’s still international application. But I’m curious what my colleague thinks of this because I actually do believe, which I’ve said several times, that this is really a very dramatic issue and so forth, but it isn’t really the important issue to me.”
Of course it wasn’t the important issue to him at that point in the conversation. He’d just had his head handed to him, figuratively speaking, and was obviously perplexed as to how he could continue to address Scalia’s line of reasoning without either agreeing with him, or looking like a jackass.
Be that as it may, he then went on to talk about a few cases which were, as he put it, “much less glamorous,” rounding out his comments by asserting, “this world we live in is a world where I think it’s out of date for people to teach about foreign law in a course called ‘foreign law.’ I think it’s in date to teach in contract law or in tort law, because those are the cases we’re getting.”
I must admit that in certain cases relative to contract law, where companies deal with one another internationally, there are foreign law principles which may well permeate the meat of the matter. But the supposition that the more important and far-reaching moral arguments before the U.S. Supreme Court, pertaining to American societal norms and conventions, should necessarily be dependent upon the whims of foreign law decision-makers, merely because such is the case in the aforementioned respects, is ridiculous on its face. But then, that’s just my opinion.
Later on, Mr. Dorsen queried, “The question I have in my own mind is whether this question is a naive question. And that is, rather than looking at foreign courts to say Greece decided our way, the United Kingdom decided our way, X country decided a different way, another country has a different view, rather than thinking about these courts and cases in terms of the results to think about them in terms of the persuasiveness of the opinions, just as a New York court might look at a Montana decision and be influenced not by the result of the Montana court or the Wyoming court or the Illinois court but by the cogency of the arguments, by the depth of the reasoning, by the logic.”
To which Justice Scalia responded, “Well, you’re begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.”
Ask yourself why Antonin Scalia would say such a thing. If you understand the role of a judge in the American system of government, the answer should be obvious. It’s not his job to write the law, only to interpret it. Writing law is the job of the legislative and executive branches. Even if he disagrees with the law he’s considering, he has no lawful authority to change it, nor should it be his desire to do so. You see, Judge Scalia understands the fundamental principle behind the words “separation of powers,” and he actually practices what he preaches.
Furthermore, he proves his allegiance to the Constitution, and to the American people when he contends, “And on these Constitutional questions, you’re not going to come up with a right or wrong answer; most of them involve moral sentiments. You can have arguments on one side and on the other, but what you have to ask yourself is what does American society think?” Although the discussion continued for nearly another half hour, nothing was said by anyone present which was more profound than that, so I won’t bother reiterating further.
Suffice it to say that if I were a Supreme Court Justice, I’d ask myself the following questions:
Do judges in the U.S., at any level of jurisprudence, consider the Constitution to be satisfactory or not?
If not, what other nation has exhibited the capacity to improve upon it, or even to approach its standards of excellence in such a way as to be worthy of my consideration of its views?
Should justices of the highest court in the land be allowed to speak for the attitudes of the American people, while simultaneously ignoring them, respectful only of the opinions of elitists from other countries, and/or the American legal intelligencia?
In short, do we really want these people making moral judgments for the rest of us?
I may not be a law professor, an attorney, a judge, or even a formal student of the practice, but it seems to me that the law should be based, at least in part, on common sense and practicality. It should also be reflective of the will of the American people, if it is to have any true weight at all.
As Ulysses S. Grant once said, “The will of the people is the best law.”
Associate Justice of the Supreme Court Antonin Scalia was found dead Saturday on a luxury resort in West Texas, federal officials said.
Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa. MySanAntonio.com said he died of apparent natural causes.
Scalia arrived at the ranch on Friday and attended a private party with about 40 people, the website of the San Antonio Express News said. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.
The U.S. Marshal Service, the Presidio County sheriff and the FBI were involved in the investigation, according to the report.
Officials with the law enforcement agencies declined to comment.
A woman who answered the phone at the ranch told the Post she was unaware of the justice’s death, and no manager was available to discuss the matter.
A federal official who asked not to be named told the San Antonio Express News paper there was no evidence of foul play and it appeared that Scalia died of natural causes.
Scalia was nominated to the U.S. Supreme Court in 1986 by President Ronald Reagan.
Nearly 10% of college graduates surveyed in a poll believe Judith Sheindlin, aka “Judge Judy,” serves on the Supreme Court.
Sheindlin is an American lawyer made popular as the judge on a court show by the name of “Judge Judy.” The show features Sheindlin handling small disputes in a courtroom, but Sheindlin does not serve on the Supreme Court of the United States.
The poll, conducted by the American Council of Trustees and Alumni in August 2015 but released in January 2016, concluded from the 1,000 surveyed that college graduates “are alarmingly ignorant of America’s history and heritage.”
The survey also found 28.4% of college graduates correctly identify the father of the Constitution as James Madison. About 59% of college students surveyed believe the father of the Constitution was Thomas Jefferson, who was actually the principle writer for the Declaration of Independence.
One of Washington state’s largest unions lost thousands of dues paying members in the wake of a Supreme Court decision barring automatic enrollment of home healthcare workers in the union, according to a new report.
The Freedom Foundation, a think tank in Washington, found that thousands of the workers, many of whom were caring for family members, dropped out of the union after the state ended forced unionism last year. Federal labor filings from Service Employees International Union Local 925 revealed that more than 3,000 of the 7,000 home healthcare workers previously in the union cut ties with the local in 2015.
“Nearly half of Washington’s approximately 7,000 family child care providers have exercised their newly acknowledged rights and left SEIU 925 since the Harris decision. The percentage of providers paying dues to the union fell from 100 percent in July 2014 to 53.2 percent (3,738) in May 2015,” the report said.
SEIU Local 925 represents mostly public sector workers. Prior to the Quinn v. Harris ruling, the union was able to corral home healthcare workers who received tax breaks and Medicaid dollars from the state. The high court declared a similar arrangement in Illinois unconstitutional, leading Washington to end the practice.
“Pas [Personal Aides] are much different from public employees,” Justice Samuel Alito ruled in the 5-4 decision. “Unlike full-fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment.”
Local 925 charges members nearly 2 percent of their salaries for dues with a cap of $90 per month, according to federal labor filings released in March. The union collected more than $8 million and spent more than $1.2 million on political activities and lobbying in 2014. Local 925 actually saw its ranks swell overall in 2014 despite the loss of home healthcare workers, growing from 13, 835 members to 14,405 in 2014.
The union did not respond to request for comment.
Freedom Foundation labor policy expert Maxford Nelsen said that the massive withdrawals followed an education and outreach effort by the group.
“Neither SEIU 925 nor the state took action to inform family child care providers of their constitutional right to resign from the union. The Freedom Foundation obtained providers’ contact information from the state in October 2014 and, after defeating a subsequent legal challenge from SEIU 925 in court, began a wide-ranging educational campaign to inform providers of their ability to opt-out of the union,” Nelson wrote on the foundation’s website. “To date, the effort has included direct mail, email, phone calls, cable TV advertising and door-to-door canvassing.”
Backers of private school vouchers won a huge victory Thursday as the North Carolina Supreme Court narrowly endorsed a program that allows public school money to be spent providing vouchers to attend private schools.
North Carolina’s Opportunity Scholarship program, created in 2013, allows for up to $4,200 per family to help pay for private school tuition. The scholarships are only available to low-income families, with the threshold pegged to 133 percent of the income required to qualify for free and reduced-price school lunches.
Demand for the program has been high, as only 2,400 scholarships are available and more than twice that number have applied, necessitating the use of a lottery system.
Shortly after the program’s creation, a coalition of public school teachers, parents, and school administrators sued, claiming the voucher law unconstitutionally supported religious schools and failed to spend public money on an exclusively public purpose, as required by the Constitution.
Writing for a 4-3 majority, Chief Justice Mark Martin said otherwise, overruling a lower court that had struck down the program.
“Our review is limited to a determination of whether plaintiffs have demonstrated that the program legislation plainly and clearly violates our constitution,” Martin wrote. “Plaintiffs have made no such showing in this case.”
The decision means that students will be able to receive vouchers in the upcoming school year.
National advocates for school choice have been quick to praise the ruling.
“With more than double the applications for scholarships in the first year of the program – approximately 5,500 applications for 2,400 scholarships – parents are making it abundantly clear that they want and demand more power over their children’s education,” said Kara Kerwin, president of the pro-voucher Center for Education Reform, in a statement sent to The Daily Caller News Foundation. “This is a giant step in the right direction for parent empowerment in North Carolina.”
The ruling is a big win for voucher supporters, especially as it helps make up for a ruling in Colorado in June which struck down a major voucher program in that state.
The Wisconsin Supreme Court has effectively killed the “John Doe” case which led to home raids and intimidation of a wide range of Wisconsin conservative activists.
The decision is embedded at the bottom of this post.
Here is the key finding, which completely shreds both the legal theories and motives of the prosecutors, completely vindicates the targets, and praises those who fought back legally against prosecutorial misconduct (emphasis added):
¶133 Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.
Andrew Grossman, who filed an amicus brief in the Supreme Court case and who has served as counsel to Eric O’Keefe and the Wisconsin Club for Growth (two of the targets of the investigation) in various federal civil rights litigation against the prosecutors, provided me with the following statement:
Today’s decision puts an end to one of the worst abuses of power ever seen in Wisconsin law enforcement. The next step will be holding those responsible accountable for their actions. The Court’s recognition that the John Doe was a politically motivated “dragnet” of Gov. Walker’s allies provides strong support for Cindy Archer’s civil rights action against the Milwaukee prosecutors and lawsuits by potentially any of the other John Doe targets.
Background on John Doe abuses:
We have been covering the John Doe cases for a year and a half. You can read all out posts in the John Doe (WI) Tag.
Here are some key posts:
* Revealed: Wisconsin John Doe investigation was full-blown anti-conservative fishing expedition
* Exposed: How Prosecutors targeted Scott Walker and conservatives
* Was Prosecutor’s union-operative wife behind “John Doe” investigation of Scott Walker?
* Wisconsin “John Doe” War on Walker wins “Nastiest Political Tactic of the Year”
* Wisconsin Dems used battering rams against Scott Walker supporters – literally
* Former Scott Walker Aide Sues prosecutors for WI John Doe “Home Invasion”
The court found that Wisconsin statutes did not limit “issue advocacy,” and that any attempt to so limit speech was unconstitutional:
¶7 We can resolve the original action, Two Unnamed Petitioners, by first examining whether the statutory definitions of “committee,” “contributions,” “disbursements,” and “political purposes” in Wis. Stat. §§ 11.01(4), (6), (7), and (16) are limited to express advocacy or whether they encompass the conduct of coordination between a candidate or a campaign committee and an independent organization that engages in issue advocacy. Second, if the definitions extend to issue advocacy coordination, what then constitutes prohibited “coordination?”
* * *
¶41 We turn first to Two Unnamed Petitioners, the original action filed with the Wisconsin Supreme Court. This case requires us to interpret Wisconsin’s campaign finance law, Wis. Stat. Ch. 11. By its very nature, this task involves fundamental questions regarding the scope of the government’s ability to regulate political speech. To resolve this case, we must engage in statutory interpretation of the phrase “political purposes,” which includes all activities “done for the purpose of influencing [an] election.” Wis. Stat. § 11.01(16). We conclude, consistent with the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution, that the plain language of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague if it is not given a limiting construction and applied to only express advocacy and its functional equivalent. This conclusion invalidates the special prosecutor’s theory of the case and ends the John Doe investigation. Therefore, we agree with the Unnamed Movants and grant their requested relief.
The Court ripped into the investigating prosecutors (emphasis added):
¶68 Having reached our conclusion about the scope of conduct regulated by Chapter 11, we now turn to the special prosecutor’s theories of coordination and whether the alleged conduct is regulated under Wisconsin law. The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished. In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with “narrow specificity.” Barland II, 751 F.3d at 811 (quotations omitted).
¶69 The limiting construction that we apply makes clear that the special prosecutor’s theories are unsupportable in law given that the theories rely on overbroad and vague statutes. By limiting the definition of “political purposes” to express advocacy and its functional equivalent, political speech continues to be protected as a fundamental First Amendment right.
The court made clear the investigation was stopped cold in its tracks:
¶76 To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.
The Court went on in addition to uphold a lower court’s quashing of a subpoenas and search warrants sought by the prosecutors, finding that the John Doe powers did not allow “a fishing expedition”:
¶91 Reasonableness and particularity are not just requirements of search warrants, however. Subpoenas issued by courts, and by extension John Doe judges, must also satisfy these requirements of the Fourth Amendment. In re John Doe Proceeding, 272 Wis. 2d 208, ¶38. A John Doe proceeding, with its broad investigatory powers, must never be allowed to become a fishing expedition.
¶92 It is difficult, if not impossible, to overstate the importance of the role of the John Doe judge. If he does not conduct the investigation fairly, as a neutral and detached magistrate, the risk of harm to innocent targets of the investigation-and we remain mindful that all such targets are presumed innocent-is too great. Through the use of a John Doe proceeding, “law enforcement officers are able to obtain the benefit of powers not otherwise available to them, i.e., the power to subpoena witnesses, to take testimony under oath, and to compel the testimony of a reluctant witness.” Washington, 83 Wis. 2d at 822-23. Such powers, if not wielded with care and skill may serve to transform a John Doe proceeding into an implement of harassment and persecution by a vengeful or unethical prosecutor. Thus, John Doe judges must be mindful of this danger and zealously guard the rights of all citizens against over-reach.
The Court then summarized its holdings, just so there was no doubt that it had completely rejected the prosecutors’ legal theory on coordination of issue advocacy (emphasis added):
¶133 Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.
¶134 In Two Unnamed Petitioners, we hold that the definition of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article I, Section 3 of the Wisconsin Constitution because its language “‘is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.’” Janssen, 219 Wis. 2d at 374 (quoting Bachowski, 139 Wis. 2d at 411). However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, that “political purposes” is limited to express advocacy and its functional equivalent as those terms are defined in Buckley and WRTL II. With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is “beyond the reach of [Ch. 11].” Barland II, 751 F.3d at 815. Accordingly, we invalidate the special prosecutor’s theory of the case, and we grant the relief requested by the Unnamed Movants.
¶135 To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.
The U.S. Supreme Court on Saturday allowed Texas to enforce its voter identification law for the Nov. 4 midterm elections, denying emergency requests from the Obama administration and other challengers who said the law harmed minority voting rights.
The high court’s move, announced in an early morning order, is a setback for civil-rights advocates and marks the court’s fourth recent action on a state’s election procedures just ahead of Election Day.
A federal judge in Texas last week struck down the state law after holding a trial on the issue and concluding lawmakers acted with discriminatory intent when they enacted the law in 2011.
Judge Nelva Gonzales Ramos said the Texas law was the strictest in the country for several reasons, including because it allowed the fewest forms of acceptable photo identification and didn’t make certain accommodations for the poor and the elderly.
The judge said more than half a million registered voters, many of them black or Hispanic, were expected to lack the ID necessary to vote in person at the polls.
This week the Fifth U.S. Circuit Court of Appeals, acting on an emergency appeal by state officials, decided Texas could use the voter ID law for this election. The appeals court said the state already had been training poll workers to apply the voter ID law and said it was too late to change the rules so close to the date when voters were due to begin casting ballots. Early voting in Texas begins Monday.
The appeals court said it was guided in part by recent Supreme Court emergency actions on election rules in Ohio, North Carolina and Wisconsin. The results in those cases pointed in different directions, but in each case the justices blocked late changes to state election procedures, seemingly out of concern for voter confusion. The high court didn’t offer an explanation for its course of action in those cases.
The same held true Saturday when a majority of the court issued a brief written order that allowed Texas to use its voter ID law. But three justices – Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan – dissented, saying the court should have intervened.
“The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” Justice Ginsburg wrote for the dissenters.
The Justice Department and civil rights groups had filed emergency appeals with the Supreme Court, saying there was no justification for allowing Texas to use the voter ID law after a judge found it to be discriminatory.
Texas said in court papers that its law wasn’t discriminatory and was approved to deter and detect voter fraud. The state also disputed the trial judge’s finding that large numbers of voters could be disenfranchised, saying it had taken extensive steps to mitigate “the already minor inconveniences associated with securing photo identification.”
The Supreme Court action Saturday wasn’t a ruling on the legality of the Texas law. The court was considering only whether the law could be applied while Texas appealed the trial judge’s ruling.
With the high court’s action in favor of Texas, three of the court’s four recent emergency actions in election matters have favored the states. The court also allowed Ohio to cut back on early voting and let North Carolina prohibit same-day voter registration and out-of-precinct voting. In a win for civil rights advocates, the court blocked Wisconsin from enforcing its voter ID law for the midterms.
The Supreme Court ruled Monday that Obamacare cannot force companies to pay for emergency contraceptive coverage for their employees that could lead to abortions, in violation of their religious beliefs.
The 5-4 ruling delivered a huge victory to conservatives who have worked for years to scale back the various mandates of the controversial healthcare law.
The Court decided that Obamacare cannot be used to require for-profit, closely held companies to provide certain birth control drugs and devices – such as morning after pills – that could cause abortion.
The case was brought by Hobby Lobby, a Oklahoma-based retail chain owned by the Green family. The Greens said they are willing to cover 16 of the 20 birth control methods mandated by Obamacare to its employees, but not four others because the risk of abortion goes against their religious beliefs.
The company argued before the Court that the Obamacare mandate violates the Religious Freedom Restoration Act of 1993, which says the government cannot place burdens on the exercise of freedom of religion.
“Providing these objectionable drugs and devices violates the deeply held religious convictions of the Greens – the sole owners of their family businesses – that life begins at conception,” the company’s website says. “Yet refusing to comply with the federal mandate would subject them to an untenable choice of paying substantial fines or discontinuing the outstanding and affordable health insurance plan currently provided to their valued employees.”
The majority opinion written by Justice Samuel Alito agreed with that argument. According to SCOTUS Blog, the Obama administration failed to show that the broad contraception mandate is the least restrictive way of advancing its interest in ensuring access to birth control. The Court also ruled that the decision applies only to the contraception mandate, not other insurance mandates, such as those involving vaccinations.
Justice Anthony Kennedy noted that the government could pay for this coverage if it wants to make it available, but cannot compel a company to do so.
The decision deals a big hit to the Obama administration, which defended its interpretation of the law as something that forces companies to provide all manner of birth control methods to workers.
Republicans in Congress welcomed the high court’s ruling.
“Religious liberty will remain intact and all Americans can stay true to their faith without fear of big government intervention or punishment,” said Sen. Rand Paul (R-Ky.). “Our nation was founded on the principle of freedom, and with this decision, America will continue to serve as a safe haven for those looking to exercise religious liberty.”
House Speaker John Boehner (R-Ohio) called the ruling a victory for religious freedom and a defeat for the Obama administration’s “Big Government objectives.”
“The mandate overturned today would have required for-profit companies to choose between violating their constitutionally-protected faith or paying crippling fines, which would have forced them to lay off employees or close their doors,” he said.
“The president’s health care law remains an unworkable mess and a drag on our economy,” he added. “We must repeal it and enact better solutions that start with lowering Americans’ health care costs.”
The case is Burwell vs. Hobby Lobby, referring to Secretary of Health and Human Services Sylvia Burwell. She replaced Kathleen Sebelius earlier this year – prior to that, the case was Sebelius vs. Hobby Lobby.
The case is second big blow to Obama from the Supreme Court in as many weeks. Last week, the Supreme Court ruled unanimously that President Obama’s 2012 “recess” appointments were not legal, because Obama made them when the Senate was not in recess.
That ruling prompted Sen. Chuck Grassley (R-Iowa) to say the decision was the biggest rebuke to a sitting president since 1974, when the Court decided unanimously that President Nixon must release the Watergate tapes.
Also related to abortion, the Court last week struck down a Massachusetts law that said people can’t stand on a public road or sidewalk within 35 feet of an abortion clinic.
The Supreme Court on Monday limited the power of public-sector unions to compel employees to pay contributions, dealing a setback to public-sector unions.
But the 5-4 decision, written by conservative Justice Samuel Alito, wasn’t as sweeping as some union advocates had feared.
“This is a substantial obstacle to expanding public employee unions, but it does not gut them,” SCOTUSblog’s Tom Goldstein wrote.
Unions had been concerned that the court would strike down laws in 26 states requiring teachers, police officers, firefighters, and other public-sector employees to pay dues to the unions that negotiate contracts on their behalf, even if the workers don’t want to become union members.
The court hedged somewhat, but the decision is still a setback for public-sector unions. In a 5-4 decision written by conservative Justice Samuel Alito, the court “recognized a category of ‘partial public employees’ who could not be required to contribute to union fees,” according to SCOTUSblog. Unions worried the court would rule all public employees could not be forced to pay, which would dry up their ranks and their coffers.
“It remains possible that in a later case the Court will overturn its prior precedent and forbid requiring public employees to contribute to union bargaining. But today it has refused to go that far. The unions have lost a tool to expand their reach. But they have dodged a major challenge to their very existence,” Goldstein wrote.
The case, Harris v. Quinn, stemmed from a challenge in Illinois involving in-home care providers. Illinois uses Medicaid funds to pay in-home care workers, but turnover was high at the low-paying jobs. In response, more than 20,000 in-home car workers organized and joined the Service Employees International Union (SEIU), after executive orders from Govs. Rod Blagojevich and Pat Quinn, both Democrats, classified them as “public employees.”
The National Right to Work Foundation brought a challenge to Quinn in 2010, arguing workers who didn’t want to participate in the union shouldn’t have to pay the dues.
The Arkansas Supreme Court has tossed out a judge’s ruling striking down the state’s voter ID law, but stopped short of ruling on the constitutionality of the measure.
Justices on Wednesday vacated a Pulaski County judge’s decision that the law violates Arkansas’ constitution. Pulaski County Circuit Judge Tim Fox had struck down the law in a case that had focused on how absentee ballots are handled under the law, but justices stayed his ruling while they considered an appeal.
Justices said Fox didn’t have the authority to strike down the law in the case focusing on absentee ballots.
Fox has also ruled the law unconstitutional in a separate case, but said he wouldn’t block its enforcement during this month’s primary. That ruling is also being appealed to the high court.
Arkansas is amid early voting ahead of next Tuesday’s primary.
The ruling comes as voter ID laws are being challenged throughout the nation. Though 31 states have laws in effect requiring voters to show some form of identification, Arkansas’ in one of the strictest in the nation. Seven other states have photo ID requirements in effect similar to Arkansas.
A federal judge in Wisconsin struck down that state’s voter ID law last month, and Pennsylvania’s governor has said he wouldn’t appeal a judge’s recent ruling striking down his state’s voter ID law. President Barack Obama last month waded into the voter ID debate, accusing Republicans of using restrictions to keep voters from the polls and jeopardizing 50 years of expanded voting access for millions of black Americans and other minorities.
Republicans backing voter ID laws in Arkansas and elsewhere have said the efforts are aimed at preventing voter fraud and protecting the integrity of the election process.
Under previous law in Arkansas, election workers were required to ask for photo ID but voters didn’t have to show it to cast a ballot. Under the new law, voters who don’t show photo identification can cast provisional ballots. Those ballots are counted only if voters provide ID to county election officials before noon on the Monday after an election, sign an affidavit stating they are indigent or have a religious objection to being photographed.
Arkansas’ law took effect Jan. 1 and had been used in some local elections this year. This month’s primary is the first statewide test of the new law.
The case had initially focused on rules for absentee ballots under the voter ID law. The Pulaski County Election Commission sued the state Board of Election Commissioners for adopting a rule that gives absentee voters additional time to show proof of ID. The rule allows voters who did not submit required identification with their absentee ballot to turn in the documents for their vote to be counted by noon Monday following an election. It mirrors an identical “cure period” the law gives to voters who fail to show identification at the polls.
Fox’s ruling had been stayed by the state Supreme Court, but the high court declined to stay Fox’s decision to strike down the state board’s rule giving absentee voters additional time.
You might have heard that the Supreme Court ruled 6-2 today that states have the right to ban racial preferences, euphemistically known as “affirmative action,” in public-university admission, but that’s not quite right. On that point the justices (save for Elena Kagan, who sat the case out) were unanimous. “When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy,” wrote Justice Sonia Sotomayor in a dissent joined by Justice Ruth Bader Ginsburg.
But in the case styled Schuette v. BAMN, Sotomayor endeavored to make nothing into something. She and Ginsburg would have upheld a decision by the Sixth U.S. Circuit Court of Appeals that held illicit the method by which Michigan’s voters accomplished that end: a ballot initiative, approved in 2006, that amended the state constitution to bar racial discrimination.
We noted the case, and offered a lengthy analysis, back in 2011, when a three-judge Sixth Circuit panel first ruled in favor of the unwieldily named Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. We pegged the case then as a likely one for the high court to take up, and we didn’t expect the Sixth Circuit’s ruling to stand. But we’re disappointed the court didn’t repudiate BAMN’s arguments more clearly.
The background, in brief: As there was no colorable argument that the substance of the Michigan amendment was unconstitutional, BAMN invoked what the appellate court called the “political process doctrine.” It rested on two prior cases, Hunter v. Erickson (1969) and Washington v. Seattle School Dist. No. 1 (1982), in each of which the high court struck down a ballot measure repealing and banning a policy that, as Justice Harry Blackmun put it in Seattle, “inures primarily to the benefit of the minority.” In Hunter, the policy in question was a fair-housing ordinance enacted by the city council; in Seattle, a forced-busing program instituted by an elected school board.
The six justices who voted to reverse the Sixth Circuit and let the Michigan amendment stand split 3-2-1 on the grounds for doing so. The result is a clear outcome but a doctrinal muddle. We thought it would be amusing and enlightening to go through the four main opinions in descending order of clarity.
Clearest of all is Justice Antonin Scalia’s concurrence in the judgment, joined by Justice Clarence Thomas. “It has come to this,” Scalia begins portentously. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”
Scalia and Thomas’s view, thus far joined by no other sitting justice, is that racial discrimination in public-university admissions is flatly unconstitutional. The prevailing view on the court is that such discrimination is permissible, but only for the purpose of realizing “the educational benefits” of a “diverse student body,” as Justice Sandra Day O’Connor put it in Grutter v. Bollinger (2003).
As Scalia notes: “Were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional.” The Sixth Circuit had to reach just that conclusion in order to fit the Michigan amendment into the political-process doctrine.
Thus, as we noted in 2011, Grutter and BAMN were on a collision course. Either the racial preferences the court upheld in Grutter were unconstitutional or the political-process doctrine didn’t apply. Scalia and Thomas recognized this contradiction squarely and would have dealt with it by both holding the preferences unconstitutional and overturning Hunter and Seattle.
Justice Stephen Breyer concurred in the judgment on much narrower grounds. He was part of the Grutter majority in 2003 and still thinks racial preferences are constitutionally permissible. He ducked the question of whether the political-process doctrine applied to the substance of the Michigan amendment by saying it didn’t apply to the process. Because racial preferences were imposed by unelected university administrators, he argued, the process change isn’t a “political” one at all. It appears to be a way of evading the central questions of the case, but it does have the virtue of being relatively simple.
Then there’s the Sotomayor dissent, which begins as follows: “We are fortunate to live in a democratic society. But…” An empty piety, followed by an equivocation, followed by a total of 58 pages – you know this is going to be a tough slog.
The most quoted part of Sotomayor’s opinion is this: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” This is a rejoinder to Chief Justice John Roberts’s assertion, in Parents Involved v. Seattle School Dist. No. 1 (2007), that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (Roberts in turn rebutted Sotomayor in a separate concurrence to today’s decision, which we’re leaving out of our ranking by clarity.)
Roberts’s statement was trivially true, which means that Sotomayor’s defies logic. Her argument amounts to an assertion that a ban on racial discrimination is a form of racial discrimination–that everyone is equal, but some are more equal than others. Also Orwellian is her claim that she wants “to speak openly and candidly on the subject of race.” Such an assertion is almost always disingenuous. After all, the way to speak openly and candidly is to speak openly and candidly. Declaring one’s intention to do so is at best superfluous throat clearing.
And while Sotomayor may be open, she isn’t candid. She presents a potted history of race in America in which there is a straight line from Jim Crow segregation through literacy tests to the Michigan amendment, which “involves this last chapter of discrimination” – even though it bans discrimination, and even though Sotomayor acknowledges that its substance is perfectly constitutional.
Yet for all the faults of the Sotomayor opinion, she does score some points against the plurality opinion, written by Justice Anthony Kennedy and joined by Roberts and Justice Samuel Alito. Kennedy refrained from either reversing the Hunter and Seattle precedents or distinguishing the Michigan amendment from those cases by noting the contradiction between the Sixth Circuit’s finding and the high court’s rationale for upholding racial preferences in Grutter.
Instead, he essentially rewrites Hunter and Seattle, as Sotomayor notes (citation omitted):
Disregarding the language used in Hunter, the plurality asks us to contort that case into one that “rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities.” And the plurality recasts Seattle “as a case in which the state action in question… had the serious risk, if not purpose, of causing specific injuries on account of race.” According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the political process to the detriment of racial minorities; rather, those cases invalidated governmental actions merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those cases.
Although Sotomayor is right about this, she goes on to make an error that is the mirror image of Kennedy’s, in citing the 1996 case of Romer v. Evans (omitting another citation):
Romer involved a Colorado constitutional amendment that removed from the local political process an issue primarily affecting gay and lesbian citizens. The amendment, enacted in response to a number of local ordinances prohibiting discrimination against gay citizens, repealed these ordinances and effectively prohibited the adoption of similar ordinances in the future without another amendment to the State Constitution. Although the Court did not apply the political-process doctrine in Romer, the case resonates with the principles undergirding the political-process doctrine. The Court rejected an attempt by the majority to transfer decision-making authority from localities (where the targeted minority group could influence the process) to state government (where it had less ability to participate effectively).
Actually in Romer the high court, with Justice Kennedy writing for the majority, rejected the Colorado Supreme Court’s application of the political-process doctrine. Instead, Kennedy held that the amendment itself violated equal protection–something even Sotomayor concedes is not true of the Michigan measure.
The plurality opinion is frustratingly muddled, but it’s likely to be seen as the controlling one, since it reflects the farthest position in either direction that a majority of justices are willing to go. In effect it means that it will be difficult if not impossible to challenge state ballot initiatives banning racial preferences at public universities. And while the court did not overturn the Hunter and Seattle precedents, they do not look like especially robust law, now that they’ve been rewritten by Justice Kennedy.
As for the Roberts-Sotomayor kibitzing, it’s actually a continuation of a conversation that started many years earlier, when the late Justice Harry Blackmun, in an opinion in University of California v. Bakke, wrote: “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.”
Blackmun wrote those words in 1978, when Sonia Sotomayor was a law student. Thirty-six years later, Justice Sotomayor wrote these words:
Race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
Are Sotomayor’s lamentations evidence that Blackmun was right, or that he was wrong?
“A freedom-destroying cocktail.”
That’s how Justice Antonin Scalia characterized Tuesday’s Supreme Court ruling that law enforcement officers may pull over and search drivers based solely on an anonymous tip.
The justices ruled 5-4 Tuesday to uphold a traffic stop in northern California in which officers subsequently found marijuana in the vehicle. The officers themselves did not see any evidence of the tipped reckless driving, which was interpreted as drunkenness, even after following the truck for several minutes.
Justice Clarence Thomas said the tip phoned in to 911 that a Ford pickup truck had run the caller off the road was sufficiently reliable to allow for the traffic stop without violating the driver’s constitutional rights.
But Justice Antonin Scalia, who wrote the dissent in Prado Navarette v. California, had strong words about the decision’s implications for the future.
Here are some of Scalia’s points, in which he was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor (emphasis added):
* Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.
* Anonymity is especially suspicious with respect to the call that is the subject of the present case. When does a victim complain to the police about an arguably criminal act (running the victim off the road) without giving his identity, so that he can accuse and testify when the culprit is caught?
* The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.
* Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.
CBS DC – On the Supreme Court since 2009, Sotomayor said it was tough at first as justices made references that went over her head. She said joining the high court amounted to joining an ongoing conversation among justices who had served for years.
“I figure I may not be the smartest judge on the court but I’m going to be a competent justice,” she said. “I’m going to try to be the best I can and each year I think my opinions have been getting better. And I’m working at finding my voice a little bit.”
Sotomayor was asked at a talk at Yale Law School later in the day about her use of the term “undocumented immigrants” rather than the traditional illegal alien. Sotomayor characterized the issue as a regulatory problem and said labeling immigrants criminals seemed insulting to her.
“I think people then paint those individuals as something less than worthy human beings and it changes the conversation,” Sotomayor said.
No, people who are for LEGAL immigration do not paint illegal immigrants as lesser people. But what I really need to correct here is what is “insulting”. What is truly insulting is having a race-obsessed, Left Wing hack on the Supreme Court
A Mexican immigrant who is living in the country illegally but had graduated from law school and passed the California bar was granted a law license Thursday by the state’s highest court.
In a unanimous decision, the California Supreme Court granted a motion filed by the state bar’s Committee of Examiners to admit 36-year-old Sergio C. Garcia. Mr. Garcia, who will open his own practice in Chico, Calif., after he is sworn in, can now legally be retained as an attorney in the state, though he cannot be employed by a firm, attorneys representing him said.
In an interview, Mr. Garcia said he was satisfied with the decision, as it was always his intention to practice privately, in the area of civil litigation. Attorneys who represented Mr. Garcia said he is the first attorney living openly in the U.S. as an illegal immigrant granted the right to practice law. Similar cases are before courts in New York and Florida.
“Right now, I am super excited, I am super happy; this has been a long, drawn-out struggle,” Mr. Garcia said. “This case in California serves as a beacon for the rest of the country to follow suit. There really is no national interest for keeping somebody like me from practicing, and paying taxes to their full potential.”
The decision to grant Mr. Garcia a law license came after California Gov. Jerry Brown, a Democrat, signed into state law legislation that specifically allows undocumented immigrants to be admitted as attorneys. That law went into effect Wednesday.
Thursday’s decision by the state Supreme Court, which grants licenses to attorneys in the state, clears the way for admission to the bar of at least one other current applicant in California who is in the country illegally.
At issue in Mr. Garcia’s case was a federal law that prohibits people in the country illegally from obtaining professional licenses. That law had a subsection that allowed states to grant licenses if a state law was passed.
It isn’t clear what impact Mr. Garcia’s case might have beyond California. While the precedent set by the high court in the country’s most populous state is noteworthy, the decision came only after the state legislature acted.
Mr. Garcia was born in Mexico but was brought to the U.S. when he was about 18 months old. He returned to Mexico at the age of nine, and then came back to the U.S. at the age of 17, according to the summary of his case that was part of the court’s opinion. Mr. Garcia’s father filed an immigration visa petition on his son’s behalf in 1994. That application has been pending since 1995, given the visa backlog for individuals from Mexico.
Mr. Garcia graduated from high school, attended college and received his law degree in 2009 from Cal Northern School of Law, passing the bar that same year. After he listed his immigration status as “pending” in his application to the state bar, the bar conducted an investigation into Mr. Garcia and determined the immigrant possessed the “good moral character” to qualify.
Jerome Fishkin, an attorney in Walnut Creek, Calif., who originally took Mr. Garcia’s case pro bono with his wife, Lindsay Slatter, said that it was immediately clear that Mr. Garcia’s immigration status was the main issue, and that Mr. Garcia met all other requirements to be a good attorney.
Steven Camarota, director of research for the Center for Immigration Studies, a Washington, D.C., nonprofit group that wants to reduce the flow of immigrants to the U.S., said the decision was a mockery of the rule of law.
“It conveys or demonstrates once again, how we are not serious about our laws,” Mr. Camarota said.
At times it seems that America has lost its mind, or at least that the concept of “rights” as our Founders understood and defined them is slipping away. RS McCain reports that the New Mexico Supreme Court has ruled that everyone in New Mexico must do anything that Gay couples looking to get married say because human rights you Homphobe!
Gosh, it seems like just a few years ago that allegedly serious people were warning about how the “christofascist godbags” of the Religious Right were an existential threat to freedom in America, and if you disagreed with these allegedly serious people, you were just a hateful bigot.
Now? Well, you’re still a hateful bigot, but freedom’s just another word for “nothing left to lose”:
New Mexico’s Supreme Court rules that people must set aside their religion in order to avoid creating the slightest inconvenience for gay people. . . .
No, by all means, let’s use the power of the state to reach as deeply as possible into people’s lives instead of just telling the gay couple to “Look online for ten minutes and find someone else.”
Just how they reached such a fundamentally flawed decision is frankly, inexplicable. Can the government now FORCE a business to provides goods or services against their will? Apparently the Leftists on that court think so. It is the price of citizenship apparently!
On Thursday, the New Mexico Supreme Court ruled that religious wedding photographers could be forced to photograph same-sex weddings. “When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act, or NMHRA] in the same way as if it had refused to photograph a wedding between people of different races,” the court ruled unanimously.
The court said that Elaine Huguenin, the photographer, had discriminated against gay customers for not photographing their weddings, even though she had said she would be happy to take their pictures in different contexts. The court also refused any differentiation whatsoever between homosexual and heterosexual conduct under the law, despite the fact that same-sex marriage is not licensed in the state of New Mexico. Justice Edward Chavez wrote, “The difficulty in distinguishing between status and conduct in the context of sexual orientation discrimination is that people may base their judgment about an individual’s sexual orientation on the individual’s conduct. To allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA.” In other words, orientation and conduct are so intertwined that to discriminate against activity would be to discriminate against the person — an odd line of logic, given that it would then follow that discriminating against religious activity would constitute discrimination on the basis of religion, making the court’s logic self-defeating.
Justice Richard Bosson wrote, in concurrence, that the Huguenins are “compelled by law to compromise the very religious beliefs that inspire their lives.” He concluded, “The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.” That “compromise,” he wrote, “is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.”
Talk about making it up as you go along! And note the word “tolerance”. How odd that the Gay couples must have, as in must have or else, “tolerance” but what of the “tolerance” for the wedding photographer? I guess some tolerance is more equal than others? Since when the Leftist definition of tolerance become part of our Constitution? I suppose, as McCain puts it, our moral superiors are to decide our every action now
Do you see what this is really about? If not, let me tell you that this is really about, “We, who are Your Moral Superiors, have authority to dictate your behavior, your words and, indeed, your thoughts.”
The language of “rights” is not about freedom, but rather power.
As I have said before, Gay marriage is a legitimate issue to debate, and, I think for states to decide. But the Gay activists and other Leftists will not let that happen. They are using this issue, as they have used many others, not to liberate, or to achieve equality of opportunity, but to create their version of what America ought to be. And understand me when I tell you that in their version of America, there will be no rights, only Leftist Totalitarianism! the Left’s thirst for power, TOTAL power, can never be slaked.
What the f…?
SANTA FE, N.M. (AP) – The New Mexico Supreme Court is cautioning trial courts and lawyers that citizens who don’t speak English have the right to serve on juries.
The court issued the admonition in a ruling that upholds an Albuquerque man’s convictions for murder and other crimes in the bludgeoning death of his girlfriend and a subsequent armed robbery and stabbing.
Michael Samora’s appeal argued that his convictions should be reversed because a Bernalillo County judge excused a Spanish-speaking prospective juror who had trouble understanding English.
The Supreme Court says it agrees with that argument but also says Samora’s defense needed to object during the trial but didn’t.
The ruling issued Monday tells judges and lawyers that they must make reasonable efforts to protect the rights of non-English speaking citizens to serve on juries.
I have said before that the issue of Gay marriage should be a state by state decision, and that those state decisions ought to be respected by both sides. And, in theory, such a state of affairs would work out well. Ah, but you see, the driving forces behind the Gay marriage push, do not want to live and let live. They will never be satisfied with true equality, their definition of equality being far removed from the actual definition, they will use this issue to force others to bow to them. Donald Douglas declares that the war on religion, yes ALL religion, not just Christianity, is under way, and links to this piece at All the Right Snark
As Ben Shapiro wrote today at Breitbart, this ruling by the Supreme Court has opened the door to the IRS revoking tax-exempt status to any church that would refuse to permit two homosexuals to hold their “wedding” within its walls.
Don’t think that will happen?
As it is, homosexual couples are suing bakeries, florists and other businesses for refusing to provide them with the trappings of their upcoming nuptials.
You don’t think homosexual couples won’t pursue lawsuits against churches for refusing to “marry” them?
We’re living in Obama’s America — where in the name of “fairness” it’s open season on anyone you don’t like.
And if you think that the “Take that bitches” crowd will be respectful of those who disagree on religious grounds with homosexuals “marrying,” then, think again.
The United States Supreme Court didn’t nullify an unconstitutional law yesterday. They nullified the will of the people. The nullified the Separation of Powers. They nullified the religious freedom in this country.
Five unelected individuals in a nation of over three hundred million just paved the way for state-approved HATRED against anyone who recognizes marriage as a union between a man and a woman.
Five unelected individuals believe that opposition to homosexual “marriage” is motivated by frothing-at-the-mouth hatred. Therefore, supporters of homosexual “marriage” can go to town!!
That lays it out pretty well. As I said, I would be fine with live and let live, but the Gay marriage activists are not OK with that. They despise religion, again ALL religion, and will not stop until everyone is forced to support gay marriage. This is not about equality, or rights. What of the rights of the florist, caterer, or photographer to say no to doing a Gay wedding? And yes, eventually, churches and other houses of worship will be targeted if they say no to having a gay wedding in their sanctuary.
So, it is with regret that I say to those Gays and Lesbians who really JUST want equality, and who do not wish to force anything on any business or church, that they have allowed haters and totalitarians to take over their cause. It is sad because, I have nothing against Gay people, frankly, you could scarcely find anyone who cares less about what people do in their bedrooms than me. But, I cannot abide activists destroying the religious freedoms, and the rights of businesses. If you want equality then great, but if you want to steamroll freedom of thought, then I do not say no, I say HELL NO!
Bill and Hillary Clinton praised the Supreme Court’s reversal of a key provision in the Defense of Marriage Act Wednesday, calling the 1996 law “discrimination.”
“By overturning the Defense of Marriage Act, the Court recognized that discrimination towards any group holds us all back in our efforts to form a more perfect union,” the Clintons said in a statement posted on the Clinton Foundation website. “We are also encouraged that marriage equality may soon return to California.”
The former president and his wife, the former secretary of state, concluded, “We applaud the hard work of the advocates who have fought so relentlessly for this day, and congratulate Edie Windsor on her historic victory.”
Left unmentioned was the fact that Clinton signed the Defense of Marriage Act into law while president. The 1996 Clinton-Gore ticket ran ads on Christian radio stations taking credit for the legislation, which prevented federal recognition of same-sex marriage.
The Defense of Marriage Act also allowed states to withhold recognition of gay marriages that were legal in other states. Senate Democrats voted 32 to 14 in favor. House Democrats supported it by a margin of a margin of 188 to 65.
Liberal stalwarts Joe Biden, Paul Wellstone and Barbara Milkulski were among the Democratic “yes” votes.
Democratic strategist Robert Shrum has said that Clinton urged John Kerry to support state-level gay marriage bans during the 2004 presidential campaign. Clinton has denied the charge.
Hillary Clinton also supported DOMA as a Democratic senator from New York. Even as she argued against a constitutional ban on same-sex marriage, she described marriage as “not just a bond, but a sacred bond between a man and a woman.” She cited her own troubled marriage with Bill as a reason for that belief.
Clinton then invoked “the fundamental bedrock principle that [marriage] exists between a man and a woman going back into the mists of history as one of the founding foundational institutions of history and humanity and civilization, and that its primary, principle role during those millennia has been the raising and socializing of children for the society into which they are to become adults.”
Early in her presidential campaign, Clinton insisted to the YearlyKos convention that “DOMA served a very useful purpose.”
Both Clintons now favor gay marriage. Hillary Clinton is considered the frontrunner for the 2016 Democratic presidential nomination.
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 26, 2013]
Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice joins as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers. Id., No. 47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “ ‘an Act of Congress is alleged to conflict with the Constitution.’ ” Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “ ‘to say what the law is,’ ” ibid., giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “ ‘province and duty of the judicial department to say what the law is.’ ” Ante, at 12.
In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “ ‘the province and duty of the judicial department to say what the law is.’ ” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974) ; United States v. Richardson, 418 U. S. 166, 179 (1974) . As Justice Brandeis put it, we cannot “pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding”; absent a “ ‘real, earnest and vital controversy between individuals,’ ” we have neither any work to do nor any power to do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892) ). Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) .
That is completely absent here. Windsor’s injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it. 1 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.
We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. The United States reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U. S. 919 (1983) . But in that case, two parties to the litigation disagreed with the position of the United States and with the court below: the House and Senate, which had intervened in the case. Because Chadha concerned the validity of a mode of congressional action—the one-house legislative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power, 2 we permitted the House and Senate to intervene. Nothing like that is present here.
To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id., at 930–931. But in a footnote to that statement, the Court acknowledged Article III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satisfied “because of the presence of the two Houses of Congress as adverse parties.” Id., at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States’ announced intention to enforce the statute also sufficed to permit judicial review, even absent congressional participation. Id., at 939. That remark is true, as a description of the judicial review conducted in the Court of Appeals, where the Houses of Congress had not intervened. (The case originated in the Court of Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced deportation. This passage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quotation from the lower court’s opinion, 462 U. S., at 939–940. But if it was addressing standing to pursue the appeal, the remark was both the purest dictum (as congressional intervention at that point made the required adverseness “beyond doubt,” id., at 939), and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.
The majority’s discussion of the requirements of Article III bears no resemblance to our jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of “elid[ing] the distinction between . . . the jurisdictional requirements of Article III and the prudential limits on its exercise.” Ante, at 6. It then proceeds to call the requirement of adverseness a “prudential” aspect of standing. Of standing. That is incomprehensible. A plaintiff (or appellant) can have all the standing in the world—satisfying all three standing requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet no Article III controversy may be before the court. Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a “prudential” element) of standing. The question here is not whether, as the majority puts it, “the United States retains a stake sufficient to support Article III jurisdiction,” ibid. the question is whether there is any controversy (which requires contradiction) between the United States and Ms. Windsor. There is not.
I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83–101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007) , as we will have to live with the chaos created by this one.
The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III “controversy” can exist without disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326 (1980) , the District Court had entered judgment in the individual plaintiff’s favor based on the defendant bank’s offer to pay the full amount claimed. The plaintiff, however, sought to appeal the District Court’s denial of class certification under Federal Rule of Civil Procedure 23. There was a continuing dispute between the parties concerning the issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene, 563 U. S. ___ (2011). There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clear at the time of violation. The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred. The “prudential” discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not. The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below. And that is because the existence of a controversy is not a “prudential” requirement that we have invented, but an essential element of an Article III case or controversy. The majority’s notion that a case between friendly parties can be entertained so long as “adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor” the other side of the issue, ante, at 10, effects a breathtaking revolution in our Article III jurisprudence.
It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.
The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Ante, at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law. For the views of our early Court more precisely addressing the question before us here, the ma- jority ought instead to have consulted the opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The objection in the case before us is . . . that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.
“A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.” Id., at 255–256.
There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life. 1 Cranch, at 177.
A few words in response to the theory of jurisdiction set forth in Justice Alito’s dissent: Though less far reaching in its consequences than the majority’s conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the “primary” determiner of constitutional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the “legislative department,” which by its nature “draw[s] all power into its impetuous vortex.” The Federalist, No. 48, at 309 (J. Madison). Heretofore in our national history, the President’s failure to “take Care that the Laws be faithfully executed,” U. S. Const., Art. II, §3, could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. 3 This would lay to rest Tocqueville’s praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he political question that [the judge] must resolve is linked to the interest” of private litigants. A. de Tocqueville, Democracy in America 97 (H. Mansfield D. Winthrop eds. 2000). That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.
Justice Alito’s notion of standing will likewise enormously shrink the area to which “judicial censure, exercised by the courts on legislation, cannot extend,” ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementation of welfare programs is too generous—a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U. S. 811, 828 (1997) , if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.
Justice Alito’s dissent is correct that Raines did not formally decide this issue, but its reasoning does. The opinion spends three pages discussing famous, decades-long disputes between the President and Congress—regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto—that would surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of a branch’s powers alone conferred standing to commence litigation. But it does not, and never has; the “enormous power that the judiciary would acquire” from the ability to adjudicate such suits “would have made a mockery of [Hamilton’s] quotation of Montesquieu to the effect that ‘of the three powers above mentioned . . . the JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)).
To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.
For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its view of the merits, however, I proceed to discuss that as well.
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Ante, at 18. But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. See, e.g., ante, at 20. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, 4 nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Ibid. Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954) , Department of Agriculture v. Moreno, 413 U. S. 528 (1973) , and Romer v. Evans, 517 U. S. 620 (1996) —all of which are equal-protection cases. 5 And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples, ante, at 23.
Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515–570 (1996) (Scalia, J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “ ‘must be upheld . . . if there is any reason- ably conceivable state of facts’ ” that could justify it).
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 19. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702–721 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “ ‘ordered liberty.’ ” Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937) ).
Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Ante, at 20. It is this proposition with which I will therefore engage.
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (Scalia, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968) . Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987) ), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Fed- eral Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by speci- fying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.
Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation. See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124Stat. 3515.
The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
* * *
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
I do not mean to suggest disagreement with The Chief Justice’s view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion ante, at 22:
“DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”
Or try this passage, from ante, at 22–23:
“[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . .”
Or this, from ante, at 23—which does not even require alteration, except as to the invented number:
“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Similarly transposable passages—deliberately transposable, I think—abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012), 6 are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012). 7 Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012) 8 with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%, on November 3, 2009). 9
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
1 For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another “Motion to Dismiss” like the one the United States filed in District Court: It argued that the court should agree “with Plaintiff and the United States” and “not dismiss” the complaint. (Emphasis mine.) Then, having gotten exactly what it asked for, the United States promptly appealed.
2 There the Justice Department’s refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers. There is no justification for the Justice Department’s abandoning the law in the present case. The majority opinion makes a point of scolding the President for his “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,” ante, at 12. But the rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy.
3 Justice Alito attempts to limit his argument by claiming that Congress is injured (and can therefore appeal) when its statute is held unconstitutional without Presidential defense, but is not injured when its statute is held unconstitutional despite Presidential defense. I do not understand that line. The injury to Congress is the same whether the President has defended the statute or not. And if the injury is threatened, why should Congress not be able to participate in the suit from the beginning, just as the President can? And if having a statute declared unconstitutional (and therefore inoperative) by a court is an injury, why is it not an injury when a statute is declared unconstitutional by the President and rendered inoperative by his consequent failure to enforce it? Or when the President simply declines to enforce it without opining on its constitutionality? If it is the inoperativeness that constitutes the injury—the “impairment of [the legislative] function,” as Justice Alito puts it, post, at 4—it should make no difference which of the other two branches inflicts it, and whether the Constitution is the pretext. A principled and predictable system of jurisprudence cannot rest upon a shifting concept of injury, designed to support standing when we would like it. If this Court agreed with Justice Alito’s distinction, its opinion in Raines v. Byrd, 521 U. S. 811 (1997) , which involved an original suit by Members of Congress challenging an assertedly unconstitutional law, would have been written quite differently; and Justice Alito’s distinguishing of that case on grounds quite irrelevant to his theory of standing would have been unnecessary.
4 Such a suggestion would be impossible, given the Federal Government’s long history of making pronouncements regarding marriage—for example, conditioning Utah’s entry into the Union upon its prohibition of polygamy. See Act of July 16, 1894, ch. 138, §3, 28Stat. 108 (“The constitution [of Utah]” must provide “perfect toleration of religious sentiment,” “Provided, That polygamous or plural marriages are forever prohibited”).
5 Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon “the equal protection component of the Due Process Clause of the Fifth Amendment,” Moreno, 413 U. S., at 533.
6 North Carolina State Board of Elections, Official Results: Primary Election of May 8, 2012, Constitutional Amendment.
7 Maryland State Board of Elections, Official 2012 Presidential General Election Results for All State Questions, Question 06.
8 Maine Bureau of Elections, Nov. 3, 2009, Referendum Tabulation (Question 1).
9 Maine Bureau of Elections, Nov. 6, 2012, Referendum Election Tabulations (Question 1).
SUPREME COURT OF THE UNITED STATES
The Supreme Court on Wednesday struck down the heart of a federal law defining marriage as a union between a man and a woman.
In a 5-4 decision written by Justice Anthony Kennedy, the court overturned a section of the Defense of Marriage Act that bars same-sex couples from receiving federal benefits, even if they live in a state that recognizes same-sex marriages.
The challenge to DOMA was filed by Edith Windsor, a New York widow who inherited her late wife’s home but was forced to pay dramatically higher property taxes than she would have if she had married a man, even though the state recognized her marriage.
Kennedy wrote that the law desprived liberties to couples in same-sex marriages that are protected by the Fifth Amendment.
“DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty,” Kennedy wrote. “It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”
The court’s liberal wing joined Kennedy in the majority decision, while the court’s conservative justices dissented in three separate opinions.
The Supreme Court ruled Monday that states cannot on their own require would-be voters to prove they are U.S. citizens before using a federal registration system designed to make signing up easier.
The justices voted 7-2 to throw out Arizona’s voter-approved requirement that prospective voters document their U.S. citizenship in order to use a registration form produced under the federal “Motor Voter” voter registration law.
Federal law “precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself,” Justice Antonia Scalia wrote for the court’s majority.
The court was considering the legality of Arizona’s requirement that prospective voters document their U.S. citizenship in order to use a registration form produced under the federal “motor voter” registration law. The 9th U.S. Circuit Court of Appeals said that the National Voter Registration Act of 1993, which doesn’t require such documentation, trumps Arizona’s Proposition 200 passed in 2004.
Arizona appealed that decision to the Supreme Court.
“Today’s decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund and lead counsel for the voters who challenged Proposition 200.
“The Supreme Court has affirmed that all U.S. citizens have the right to register to vote using the national postcard, regardless of the state in which they live,” she said.
The case focuses on Arizona, which has tangled frequently with the federal government over immigration issues involving the Mexican border. But it has broader implications because four other states — Alabama, Georgia, Kansas and Tennessee — have similar requirements, and 12 other states are contemplating such legislation.
Justices Clarence Thomas and Samuel Alito dissented from the court’s ruling.
The Constitution “authorizes states to determine the qualifications of voters in federal elections, which necessarily includes the related power to determine whether those qualifications are satisfied,” Thomas said in his dissent.
Opponents of Arizona’s law see it as an attack on vulnerable voter groups such as minorities, immigrants and the elderly. They say they’ve counted more than 31,000 potentially legal voters in Arizona who easily could have registered before Proposition 200 but were blocked initially by the law in the 20 months after it passed in 2004. They say about 20 percent of those thwarted were Latino.
Barbara Arnwine, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, called the decision a victory. “The court has reaffirmed the essential American right to register to vote for federal election without the burdens of state voter suppression measures,” she said.
But Arizona officials say they should be able to pass laws to stop illegal immigrants and other noncitizens from getting on their voting rolls. The Arizona voting law was part of a package that also denied some government benefits to illegal immigrants and required Arizonans to show identification before voting.
The federal “motor voter” law, enacted in 1993 to expand voter registration, requires states to offer voter registration when a resident applies for a driver’s license or certain benefits. Another provision of that law — the one at issue before the court — requires states to allow would-be voters to fill out mail-in registration cards and swear they are citizens under penalty of perjury, but it doesn’t require them to show proof. Under Proposition 200, Arizona officials require an Arizona driver’s license issued after 1996, a U.S. birth certificate, a passport or other similar document, or the state will reject the federal registration application form.
While the court was clear in stating that states cannot add additional identification requirements to the federal forms on their own, it was also clear that the same actions can be taken by state governments if they get the approval of the federal government and the federal courts.
Arizona can ask the federal government to include the extra documents as a state-specific requirement, Scalia said, and take any decision made by the government on that request back to court. Other states have already done so, Scalia said.
The Election Assistance Commission “recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card or Social Security number to attach additional documentation to the completed federal form,” Scalia said.
The case is 12-71, Arizona v. Inter Tribal Council of Arizona, Inc.