Obama Nominates Merrick Garland for SCOTUS Vacancy Caused By Scalia's Death

Today President  Barack Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the  D.C. Circuit to fill the vacancy on the United States Supreme Court caused by the death of Antonin Scalia on February 13.

Garland, 63, is currently the chief judge of the U.S. Court of Appeals for the D.C. Circuit. A former prosecutor, he's also viewed as a moderate. And he has cultivated a reputation for openness and collegiality at the D.C. Circuit, a bench that's sometimes called the second most important in the land. 

Garland will visit Capitol Hill on Thursday to begin meeting with legislators, Obama said. 

After the announcement was made, Senate Majority Leader Mitch McConnell reiterated his pledge that the Senate would not take any steps toward confirming an Obama nominee. McConnell's fellow Republicans in Congress echoed his comments.

It should be noted that if the Senate does not hold hearings on Obama's choice it will be the first time in the modern era such obstruction has occurred. Despite Senator McConnell's statements, at least 8 Republican Senators have said that they will meet with Judge Garland.

SCOTUS Says Oral Argument Date For April 28 In Marriage Equality Cases

The United States Supreme Court has set the date for oral arguments in the four marriage equality cases from the 6th U.S. Circuit that it earlier agreed to hear appeals of: Tuesday April 28.

On January 16, the United States Supreme Court announced that this year, they will hear arguments in a case on the question of whether same-sex couples should have the freedom to marry and if anti-marriage laws nationwide should be struck down as unconstitutional. The Court granted review of an out-of-step ruling from the U.S. Court of Appeals for the 6th Circuit, which ruled in November against the freedom to marry in Kentucky, Michigan, Ohio and Tennessee. In each of these cases, federal judges had ruled in favor of the freedom to marry for all, and the 6th Circuit reversed each decision. 

The arguments are in the cases Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. The states' response briefs are due March 17, and final reply briefs are due April 17.

A final ruling deciding the fundamental question about whether same-sex couples have a fundamental right to marry (or that denying this right to same-sex couples unconstitutionally discriminates against them) will be issued by July 2015.

QUEER QUOTE: Justice Ginsburg Gives Hints On How SCOTUS May Act In Pending Marriage Cases

Supreme Court Justice Ruth Bader Ginsburg gave some hints at apublic forum recently about how the U.S. Supreme Court may deal with the pending petitions from the 4th, 7th and 10th U.S. Circuits to resolve the question of marriage equality: Look to the 6th Circuit!

Generally, the Supreme Court resolves splits between the Circuits. If the 6th Circuit rules, like all other appellate courts that have reviewed state bans on marriage equality in the last year and  a half that these laws violate the federal constitution then there would be no split to resolve and even though it's an important question, Justice Ginsburg said the Court would feel no urgency to resolve the matter in an absence of a circuit split.

The comments Justice Ginsburg gave  at the University of Minnesota are today's Queer Quote:

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted. 

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

The Sixth Circuit has heard oral arguments and observes say it could be a 2-1 decision either way. The losing side could then appeal to the full 6th Circuit which has  a majority of judges appointed by Republican presidents. If Justice Ginsburg is right and the Court will wait until the 6th Circuit finally rules, then it is possible after all for marriage equality not to be decided nationwide in the 2014-15 term.

SCOTUS Upholds Michigan's Affirmative Action Ban 6-2, Sotomayor Vociferously Dissents

On Tuesday, the United States Supreme Court issued a curious 6-2 ruling upholding the constitutionality of a Michigan ballot measure which precludes the use of "race-based preferences" in public education. The majority opinion by Anthony Kennedy went out of its way to say that it was not ruling on the constitutionality of race-based affirmative action policies but on whether voters had the power to ban affirmative action policies.

New York Times reports:

Justice Anthony M. Kennedy’s controlling opinion for three justices took pains to say that the decision was a modest one. 

“This case is not about how the debate about racial preferences should be resolved,” he wrote, in an opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “It is about who may resolve it. There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.” 

His announcement of the decision from the bench was businesslike. Then Justice Sotomayor summarized her dissent, an unusual move signaling deep displeasure. She said the initiative put minorities to a burden not faced by other college applicants and so violated the Constitution’s equal protection clause. 

“The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the dissent. Justice Sotomayor seemed to mock one of Chief Justice Roberts’s most memorable lines. In a 2007 decision that limited the use of race in public school systems, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

Justice Sotomayor recast the line. “The way to stop discrimination on the basis of race,” she wrote, “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.”

The result is significant for California, because the Golden State is one of 7 where voters have passed ballot measures banning affirmative action based on race (or gender) in public education. California's measure is called Proposition 209 and an attempt to place a repeal on the November 2014 ballot was abandoned earlier this year after Asian constituents expressed their displeasure with the idea of allowing UCLA and UC Berkeley to be allowed to take race into account when deciding who gets admitted to California's top state universities.

This is not surprising, because figures that came out this week show that Asians are a plurality (36.2%) of all admitted students from California to the University of California, with Latinos (28.8%) surpassing Whites (26.8) for the first time this year. Black students made up a paltry 4.2% of the total number of admitted California students.

SCOTUS blog reports on how strongly Justice Sonia Sotomayor attempted to convince her colleagues that what they were doing in allowing the majority to ban policies intended to help minorities was wrong:

Justice Sonia Sotomayor, who recited orally from the bench a lengthy version of her dissenting opinion, said the ruling would make it much harder for racial minorities to defend affirmative action programs.  What had happened in Michigan, she protested, was “the last chapter of discrimination” — changing “the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities.” 

The Sotomayor opinion, joined by Justice Ruth Bader Ginsburg, ran to fifty-eight pages – surpassing by more than three times the length of the lead opinion by Justice Kennedy and even exceeding the forty-four pages that all of her colleagues had written.

Viva Sonia!

No LGBT SCOTUS Rulings Today, Tuesday Possible

Supreme Court announces that the next decision day is tomorrow, Tuesday, at 10 a.m.
— Chris Geidner (@chrisgeidner) June 24, 2013

Gaytterdämmerung delayed! The Supreme Court usually issues its decisions on Mondays and Thursdays so there was wide expectation at least one of the four major cases remaining (Fisher, Shelby County, Hollingsworth or Windsor) would be released today.

The only case that was released was Fisher, in which the court ruled 7-1 that it was vacating a 5th Circuit Court of Appeals upholding the University of Texas' affirmative action program. It remanded the case back to reconsider its analysis of strict scrutiny involving racial classifications in view of the Court's previous decisions in Grutter and Bakke. Basically, the Court decided to give itself more time to issue a final ruling on the question of whether race can play a role in university admissions (and whether "diversity" in a student body can be a compelling state interest). So the first of the four "blockbuster cases" ended up being a dud! Since a decision that could have made affirmative action illegal anywhere in the United States was a distinct possibility from the conservative majority, today's ruling must be considered a "surprising win" for progressives and good people who support civil rights and equality.

More importantly, the Court announced that it will issue decisions tomorrow (there are 6 decisions left), which means that the plaintiffs in the Proposition 8 case will have to wait a bit longer to discover when they can get legally married in California.

I still expect that the marriage cases will not be announced until Thursday June 27th. Stay tuned!

GetEqual: History is Watching The Supreme Court

This is a pretty compelling video from the direct action group GetEqual, basically warning the individual Justices of the United States Supreme Court that they might not want to get on the wrong side of history with their rulings in the Proposition 8 and DOMA cases. GetEqual is calling for nothing short of full federal equality under the law for LGBT citizens, something the Court is unwilling to do in the cases, but substantial progress, such as marriage equality in an additional 9 states and heightened scrutiny paid to laws that discriminate on the basis of sexual orientation  or gender identity are not unlikely results of decisions in Hollingsworth v. Perry and United States v. Windsor.

I'm pretty sure the voice-over is done by my friend Ben Patrick Johnson.

Hat/tip to Joe.My.God

Analyzing This SCOTUS Term To Predict The Next

In today's New York Times reporter Adam Liptak analyzes the just-completed 2011-12 term of the United States Supreme Court and unearths some interesting (and surprising) facts. The Court heard oral arguments in 65 cases and summarily decided 10 other cases without oral argument. That's 75 decisions in which certioari was granted despite getting literally thousands of appeals from all the lower courts in the land.

Chief Justice John Roberts was only 1 percentage point behind Anthony Kennedy, who is widely viewed as the fulcrum around which the nation's highest court pivots around, in the percentage of cases in which they were in the majority (92% to 93%). This number is a widely watched measure as a signifier for the most "powerful" or influential member of the Court.

The court decided 15 cases by 5-to-4 votes, roughly in line with earlier terms. It was also not unusual that two-thirds of those decisions divided along ideological lines, with Justice Kennedy joining either the court’s four more liberal members (Justices Kagan, Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor) or its four more conservative ones (Chief Justice Roberts and Justices Alito, Scalia and Clarence Thomas). 

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Is Kennedy evolving to the left? I guess I'm pretty happy with a 10-point shift towards liberal results instead of his usual 60-40 split between conservative and liberal positions. Maybe it's because he seems to be getting closer to Elena Kagan, since the two voted similarly 83% of the time this term. There are only two pairs of justices who voted similarly more than 90% of the time  (you guessed it!) Antonin Scalia and Clarence Thomas with the other (somewhat surprising) pair being George W. Bush appointees Roberts and  Samuel Alito. I guess "Scalito" is not living up to his reputation to become "a little Scalia" on the Court.
And that's a good thing. As his absolutely unacceptable fit of pique in the Arizona immigration ruling aptly demonstrated, even one Scalia on the Supreme Court is one too many!

You should really read Liptak's entire piece for yourself. There are some big gay rights cases coming up in the 2012-13 term, most likely involving the so-called Defense of Marriage Act (DOMA) and another determining the constitutionality of California's attempt to withdraw marriage rights from same-sex couples by allowing voters to amend the state constitution after California's Supreme Court had ruled such a right exists (2008's Proposition 8). These cases are known as Gill and Perry, respectively. We'll know on the first Monday of October whether the Court will indeed accept these cases for final review (and issue a ruling by this time next year). There are also some very high-stakes cases coming in the new term dealing with race. The Court has already agreed to hear oral arguments in Fisher v. Texas which it could use to completely strike down race-based affirmative action in higher education. In addition, there are several voting rights cases at the federal appellate circuit level, particularly Shelby County, Alabama v. Holder, which will almost certainly reach the Court in the 2012-13 term and could be used to strike down Section 5 of the Voting Rights Act of 1965. It's this provision of federal civil rights legislation which has been instrumental in putting a check on Republican politicians' attempt to suppress the voting rights of Black and Latino voters in states like Florida, Pennsylvania, Texas, Wisconsin and others through enactment of "voter identification" laws.

In the meantime it is useful to analyze last year's term to see if any ideological movement can be discerned which can help predict how the Court will rule in Gill and Perry, though as the ruling upholding the health care reform law demonstrated, accurately predicting how the Court will rule in any particular case is almost impossible!

U.S. Supreme Court Upholds Health Care Law!

The United States Supreme Court has apparently upheld the Patient Protection and Affordable Care Act, also known as ObamaCare or health care reform law! Chief Justice John Roberts voted with Justices Sotomayor, Ginsburg, Breyer and Kagan to uphold the individual mandate under the taxing power of Congress. Justices Kennedy, Thomas and Alito joined Justice Scalia's relatively polite dissent.

Sotomayor, Ginsburg and Kagan: 1/3 of the Highest Court

Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan

  
This picture just make my heart sing. I can't wait until the day where the United States Supreme Court actually has a majority of women on it!

Kagan Confirmed To SCOTUS; It's Now 1/3 Female

By a vote of 63 to 37, the United States Senate confirmed President Barack Obama's second Supreme Court nominee, Elena Kagan, 50, to the country's highest court. That body will have three women serving simultaneously, the most ever when Kagan joins Ruth Bader Ginsburg, 77, and Sonia Sotomayor, 56, as the 112th Justice of the United States Supreme Court.

SCOTUS Rules Against Christian Legal Society

In the second most important case of the 2009-2010 Supreme Court term for LGBT people (last Thursday's Doe v. Reed 8-1 ruling that ballot proposition signers have no implicit right to anonymity was probably the most important) the court has ruled 5-4 in favor of the University of California Hastings Law School and against the Christian Legal Society to preserve the principle that a public university's discrimination policy that includes sexual orientation, gender identity and religion can compel any student group that wants official recognition and funding to abide by that nondiscrimination policy.

The Chronicle of Higher Education wrote:

The Supreme Court's decision, by Justice Ruth Bader Ginsburg, found that the law school's policy was "a reasonable, viewpoint-neutral condition on access" that did not raise First Amendment issues in the way the Christian Legal Society argued.

The opinion explicitly rejects the argument of the Christian Legal Society that a public university has no business limiting its ability to be recognized and to apply its own rules to membership. "CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides," the decision says. "Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no groupto discriminate in membership."

A dissent, by Justice Samuel Alito, blasted the decision, saying that it set principle of "no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning."

Many public colleges and universities have anti-bias policies similar to those of Hastings, so a ruling for the Christian Legal Society would have forced changes at many institutions. The issue has been particularly intense at public law schools (where the Christian Legal Society has sought recognition) and at undergraduate institutions with Greek systems (when Christian fraternities have sought recognition). Some public colleges and universities – faced with legal threats by supporters of the Christian Legal Society – have changed their policies to exempt religious groups, and those institutions could conceivably now reconsider.

This case has been closely watched by law professor friends of mine like Nan Hunter of Georgetown Law School and Art Leonard of New York Law School.

Human Rights Campaign issued a statement:

“Today, the Court upheld an important principle for all Americans, that government should not be forced to subsidize discrimination,” said HRC President Joe Solmonese. “UC Hastings and schools like it all over the country have worked hard to create welcoming spaces for all students, including those who are lesbian, gay, bisexual and transgender. Today’s decision bolsters those efforts, while recognizing that Christian Legal Society, and groups like it, are free exclude whomever they want – without the financial support of their fellow students or taxpayers.”

Amazingly, Justice Ginsburg, who wrote the majority opinion (joined by Stevens, Kennedy, Sotomayor and Breyer), read parts of her opinion before the Court aloud, the day after her husband of 56 years(!) died. Thank you Justice Ginsburg for your service to our country. May you enjoy serving on a supreme court (for at least one year) that is one-third female!

UPDATED 06/28/2010 11:38AM PDT

MadProfessah friend and openly gay USC Law Professor David Cruz weighs in with his thoughts on CLS v. Martinez, and Lambda Legal releases a statement:

"We're extremely pleased the Court has found that discrimination is discrimination, however you try to package it," said Jon Davidson, Legal Director of Lambda Legal. "CLS was attempting to draw a distinction between status and conduct. But when an organization has a membership requirement that one must believe conduct central to one's identity is immoral, that's the same thing as excluding people for who they are. It's wrong of CLS to expect students to fund a group that wouldn't have them as a member. The Court wisely rejected CLS's attempt to obtain what the Court recognized as 'preferential, not equal treatment' under the school's rules applicable to all other recognized clubs." Registration as a student organization at Hastings gives groups the right to use Hastings' name and logo, access to a university email address, limited use of facilities, and modest university funds for travel and other expenses. CLS sued in U.S. District Court in San Francisco, arguing that, by not allowing it to become a supported student group, Hastings had violated CLS's rights of free speech, association and religious freedom under the U.S. Constitution. The group maintained it did not bar membership to gays, but rather to those who engaged in homosexual conduct. The District Court rejected these claims and found in Hastings' favor, as did the U.S. 9th Circuit Court of Appeals last year.

The Task Force's Rea Carey said:

“The Supreme Court ruled correctly in rejecting the challenge from the Christian Legal Society, which sought school funding and recognition despite being in clear violation of the college’s nondiscrimination policy. The court rightly found that the First Amendment rights of association, free speech and free exercise were not violated by Hastings’ decision. It simply said the college did not have to fund a group that violated the school policy requiring all recognized student groups to be open to every student. Schools all across the country are working to create welcoming environments for all students. This ruling supports that important effort. No school group or organization should be given public money to discriminate against other students.”