2012 Term in Review: Figuring out why some justices switched sides (Part 2)

July 3, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonIn yesterday’s first installment of this two-part series, I discussed the criminal law cases that found odd ideological combinations from this past Supreme Court term.

Today, I’ll be looking at the civil cases, including the heavily anticipated Hollingsworth v. Perry.

Maracich v. Spears

Majority: Kennedy, Roberts, Thomas, Breyer, Alito

Dissent: Ginsburg, Scalia, Sotomayor, Kagan

I’ve discussed this ruling in quite a bit more detail in this post, but this was another case in which Scalia and Breyer switched ideological camps.

As stated in that other post, Scalia’s intentions behind joining the liberal female justice trilogy seemed to be his textualist judicial philosophy, which holds that a statute’s “ordinary meaning” should control how judges interpret it.

Indeed, the Maracich dissent criticized the majority for creating a “novel interpretation” that adds additional prohibitions to the statute at issue that “Congress did not place.”

Justice Breyer, on the other hand, was likely, again, swayed by his judicial pragmatist philosophy.

He likely wasn’t too keen on the privacy interests that would have been injured had the Court ruled the other way and allowed plaintiffs’ attorneys to fish through DMV records for prospective clients – even if that meant using a looser interpretation of the statute.

Breyer and Scalia switch places one last time in…

Adoptive Couple v. Baby Girl

Majority: Alito, Roberts, Kennedy, Thomas, Breyer

Dissent: Scalia, Ginsburg, Kagan, Sotomayor

This case involved a dispute between adoptive parents and the child’s biological father.

Because the biological father is Native American, the case was governed by the Indian Child Welfare Act (ICWA), which “establishes federal standards for state-court child custody proceedings involving Indian children.”

U.S. Supreme Court Justice Antonin Scalia speaks at a Reuters Newsmaker event in New YorkICWA “was enacted to address ‘the consequences…of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’”

Luckily, we don’t have much guesswork to do with Breyer and Scalia, since Breyer wrote a separate concurrence and Scalia wrote a separate dissent (in addition to joining Justice Sotomayor’s dissent in part).

Justice Breyer was clearly motivated by his pragmatism once again, since his concurrence consisted of “three observations” about ways in which the majority opinion may be overbroad; and ICWA provisions and possible statutory interpretations that may “prove relevant in cases of this kind.”

In short, Breyer was attempting to address potential policy problems with the majority’s argument.

Justice Scalia’s separate dissent, on the other hand, certainly did invoke his textualism: he began with the assertion that the majority’s interpretation of the statute was not the correct one, and that the dissent’s own interpretation “is much more in accord with the rest of the statute.”

However, Scalia’s dissent also has hints of influence from his Catholicism.  Most notably, he accuses the majority of “needlessly demean[ing] the rights of parenthood.”

With the other four conservative justices also being Catholic, this charge is not a light one.

Hollingsworth v. Perry

Majority: Roberts, Scalia, Ginsburg, Breyer, Kagan

Dissent: Kennedy, Thomas, Alito, Sotomayor

The most anticipated ruling covered in this series found Justices Scalia and Breyer on the same side.

Perry, the Prop 8 case, didn’t actually decide the fate of Prop 8, at least explicitly.  Instead, the case was resolved on standing grounds.

I stated briefly before that the Perry majority, which found that Prop 8’s supporters lacked standing, was concerned with preventing the creation of federal jurisdiction by a state court or a state government.

Anthony KennedyThe dissent objected that the majority was disrespecting the state initiative system and its “basic premise” that “the essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.”

However, with such a momentous issue as same-sex marriage before the Court, it’s extremely unlikely that the justices made their decisions based purely on their views on jurisdiction.

Albeit, Chief Justice Roberts seemed to be primarily concerned with jurisdiction.  During oral arguments, he, multiple times, expressed concerns over the possibility of a state having the ability to create federal jurisdiction.

In addition, Roberts’ dissent in U.S. v. Windsor was not as focused on same-sex marriage as it was standing (the primary reason for Roberts’ dissent in Windsor was that be believed that the Court lacked jurisdiction to hear the case).  Although he disagreed with the majority’s conclusion, he also seemed to understand their federalism motivations (although he also stated that those same federalism considerations could come into play later, should DOMA’s Section 2 see a legal challenge).

Scalia, though, is a bit of a different story. 

True, he also dissented in Windsor because he believed the Court lacked standing.  Nevertheless, this didn’t stop Scalia from criticizing the majority’s opinion on the Equal Protection of the opinion with trademark Scalia vitriol.

In case anyone was still wondering, Scalia is vehemently opposed to same-sex marriage. 

Why, then, would he choose to join the majority opinion in Perry, when he would be all but aware of the practical implications of finding a lack of standing (i.e. striking down Prop 8 and re-legalizing same-sex marriage in the state)?

Because it was better than the alternative.

Had the Court found standing and decided the case on the merits, there’s a very good possibility that the majority opinion would have been written by Justice Kennedy and joined by the four liberals.

No, this majority opinion wouldn’t have found a constitutional right to marriage for same-sex couples.  But it would have likely found that, once the right to marriage is given, it cannot be revoked.

True, the application of such a ruling would be very limited in scope; but it would make irrevocably permanent the marriage rights of same-sex couples in states that currently allow the practice.

To Scalia, this was by far the lesser evil.  The fact that his originalism was also satisfied by the ruling was icing on the cake.

As for the three justices in the majority, Ginsburg, Breyer, and Kagan: they were happy with the result of re-legalizing same-sex marriage in California, despite it not stemming from a landmark Court ruling.  This likely explains why they all found standing in Windsor, but why they were quick to join with the Chief Justice in Perry in denying it.

Justices Sotomayor and Kennedy were consistent in finding standing in both Windsor and Perry, whereas their fellow dissenters – Justices Thomas and Alito – were not.

However, it seems very likely that all were motivated by states’ rights in their dissent (Justice Thomas is particularly concerned with this issue).  Although the law behind their rationale was certainly discussed, the dissent seemed especially upset that the majority opinion “frustrates” the will of democracy and the people.

Although many were disappointed that Perry was resolved on standing grounds, it did allow for an interestingly divided opinion that gives some insight into the inner workings of the Court.