Justice Kennedy Will Likely Vote To Strike Down DOMA, Let’s Just Hope No One Joins His Opinion

WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.

Fortunately, this outcome is unlikely. Justice Kagan proposed an alternative theory: that the federal government’s unusual decision to step into marital policy when they historically have not done so is one of many pieces of evidence showing that DOMA was enacted because of impermissible animus against gay people. This is a sensible way to acknowledge that the federal government does not usually enact marriage laws, and presents none of the potential threats to the American safety net that Kennedy’s theory imposes. The four liberals are likely to sign onto this theory.

The greatest irony, however, may be that if Kennedy’s fellow conservatives were not so blinded by their desire to uphold the unconstitutional DOMA statute, they could actually do significantly more to advance right-wing values by joining an opinion striking DOMA on states’ rights grounds. Instead, they will stand alone on a hill defending discrimination, and likely receive nothing for their efforts.

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Justice Kennedy Suggests Children Of Same-Sex Couples Suffer ‘Immediate Legal Injury’ From Ban

Early in this morning’s Supreme Court oral argument over the constitutionality of the California ban on same-sex marriage, Justice Anthony Kennedy suggested the children of same-sex couples suffer “immediate legal injury” from Proposition 8, according to Bloomberg. “They want their parents to have full recognition and status,” Kennedy said, adding that the “voice of those children” is important.

Kennedy, who is likely the swing vote, also suggested he was very uncomfortable striking down Proposition 8, according to a tweet from SCOTUSblog. Kennedy raised dismissing the case, which would leave in place the lower court ruling invalidating the same-sex marriage ban, but would not set any precedent about equal rights or marriage equality.

In response to Kennedy’s assertion, Justice Antonin Scalia questioned whether children would actually be harmed by Proposition 8, saying there is “considerable disagreement” about the “consequences” of same-sex marriage. “I take no position on whether it’s harmful or not, but it’s certainly true there is no answer to that scientific question,” he said, according to tweets from the Huffington Post’s Ryan Reilly.

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The Political Legacy of Robert Kennedy — Barack Obama?

By John Halpin, Guest Blogger and Ruy Teixeira, Guest Blogger on Mar 16, 2013 at 11:57 am

This is part 1 of a 2 part series on RFK and the Obama coalition.

Forty-five years ago today, Senator Robert F. Kennedy announced his candidacy for the President of the United States promising to lead a moral and political uprising to end the war in Vietnam and to fight the corrosive poverty afflicting American cities and rural areas.  Affected greatly by the legacy of his brother President John F. Kennedy, his growing alignment with the Civil Rights and anti-war movements, and his work to fight the war on poverty, Sen. Kennedy sought to do what no liberal politician before him had been able to accomplish—unite African Americans, Latinos, young people, and liberal intellectuals with blue collar whites to advance progressive causes and give political voice to the disenfranchised in American society.

Kennedy’s straightforward talk about the problems of “the other America” and the need for racial reconciliation and expanded opportunities for all people—across racial and ethnic lines—rallied communities across the country.  Although his campaign lasted only 82 days before he was gunned down in Los Angeles—a few months after the assassination of Dr. Martin Luther King, Jr.—Robert Kennedy’s forward-looking vision and unique political strategy presaged a fundamental transformation of American liberalism away from its New Deal roots and towards the emergent coalition of minorities, young people, women, professionals, and middle class whites that would eventually elect Barack Obama in 2008 and re-elect him in 2012.

The decades following Kennedy’s presidential run were not easy for center-left forces as progressives faced numerous political difficulties, ideological set-backs, and outright campaign and governing failures.  A resurgent conservative movement that gained strength during the 1970’s and 1980’s successfully shifted ideological discourse and public policy away from New Deal and Great Society liberalism and towards supply-side principles, social conservatism, and aggressive militarism.  At the national level, the Democratic Party lost control of many states, particularly in the South, and a large percentage of its white working class base to an increasingly conservative Republican Party under Ronald Reagan and Newt Gingrich.

These ideological and political streams eventually converged to cause the most damage during the failed presidency of George W. Bush in the early 2000’s when the United States embarked on series of policy mistakes from the wars in Afghanistan and Iraq to unfunded tax cuts for the wealthy and the dismantling of federal regulations to protect the environment, public health, and the economy.

With President Obama’s re-election, the tide has clearly turned for progressives as the conservative realignment in American politics has reached its peak and is rapidly declining due to long term changes in America; a new and vibrant coalition in American politics has indisputably arrived.  This powerful Obama coalition, presaged by Kennedy in 1968, has the potential to dominate politics for a generation and usher in a new era of progressive public policy.

But will it?  That depends on the extent to which this coalition can be mobilized and broadened as we move forward.

The strengths of the coalition are obvious, starting with minority voters.  The share of minority voters in the 2012 election increased by 2 percentage points, bringing their share of the voting electorate to 28 percent.  That compares to just 15 percent of voters in 1988.

Overall, Obama received 80 percent support from people of color in 2012 just as he did in 2008.  His support among African-Americans was almost as overwhelming last November (93-6) as it was in 2008 (95-4).  And his support among Hispanics (71-27) improved substantially over its 2008 level (67-31).  In addition, Obama achieved historic levels of support among Asian-Americans, carrying them by 73-26, compared to 62-35 in 2008.

Adding to the power of the minority vote is the certainty of its continued growth.  The share of minority voters in the 2016 election should be around 30 percent and, in the 2020 election, around 32 percent.

Millennial generation (born 1978-2000) voters are also a central component of the Obama coalition.  Young voters in the 18-29 year old age group — all Millennials — defied skepticism about their likely levels of voter turnout, comprising 19 percent of voters in 2012, up from 18 percent in Obama’s historic campaign of 2008.  In addition, since many Millennials are now older than 29, the share of Millennials among voters is significantly underestimated by just looking at 18-29 year olds.  Taking these older Millennials into account, the true share of Millennials in the 2012 electorate was probably around 26 percent.

Millennial 18-29 year olds supported Obama by a 23-point margin in the 2012 election (60 percent to 37 percent). This is strong support, by far Obama’s best performance among any age group, just as was the case in 2008, when Obama performed even more strongly among these voters (66-32).

As with people of color, we will see more and more of these voters in the electorate over the next several elections, as the number of Millennial eligible voters increases by about 4 million a year.  By the 2016 election, Millennials should be about 36 percent of eligible voters and roughly a third of actual voters.  And by the 2020 election, Millennials should be nearly 2 in 5 (39 percent) eligible voters and around 36 percent of actual voters.

Unmarried women are another key part of the Obama coalition.  Obama carried this group by a wide 67-31 margin in 2012, not far off his 70-29 margin in 2008.  Unmarried women were also a larger share of voters, 23 percent vs. 21 percent in 2008.  This trend may continue in the future, since the growth rate of unmarried women is roughly twice that of married women.

While not as strong for Obama as unmarried women, their male counterparts also favored Obama, giving him a healthy 56-40 margin, close to the 58-38 margin they gave him in 2008.  And their share of voters went up even more, increasing by 4 points to 18 percent.  All told, unmarried voters were 40 percent of voters in 2012, up 6 points from 2008’s 34 percent share.

Obama also received strong support from those of non-Christian faiths (72-27) and those with no religious affiliation (70-26).  In addition, voters with a postgraduate education (a good proxy for professionals) supported Obama by 55-42 and residents of large metropolitan areas (54 percent of voters) supported him by 56-42.  Again, all of these groups have been growing and should continue to grow over time.

Obama generally did poorly among white voters but the college-educated were a relative bright spot.  He lost this group by 14 points (as compared to 20 points among all white voters) and did substantially better among white college-educated women, losing them by a modest 6 points.  White college-educated voters have been increasing both as a share of overall voters and—very rapidly–as a share of white voters.  Based on historical patterns and projections of future educational attainment, these trends should continue for some time.

(Part 2 of the series will examine strategies for connecting diverse constituencies with the white working class.)

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Sinners In the Hands of Anthony Kennedy

The left cries foul as the right uses the federal courts to do as the left has done for years. “The left is pretty sure if they scream partisanship loudly enough, no Republican will stand up and defend the Court as the left assaults its integrity.”

Yesterday the left descended into madness. The madness came early in the day. It happened shortly after 10 o’clock in the morning. Justice Anthony Kennedy opened his mouth and uttered his first question on the issue of the individual mandate. He asked, “Can you create commerce in order to regulate it?” The question, the second asked yesterday morning, bothered the left.

As the clock approached 11, Kennedy spoke again, sending shockwaves through the legal community. He stated matter of factly,

the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

It was the quote heard round the world. It is what the tea party movement, libertarians, conservatives, and so many private citizens have been saying. It was an expression of what every legal scholar on television has pooh-poohed as the troglodyte rhetoric of plebeians not educated enough to understand their own founding compact.

That Justice Kennedy expressed something so obvious to so many Americans that so many well educated legal analysts have mocked for two years as an outmoded view of the constitution put forward only by hicks, rubes, and the racist middle class tea partiers not cool enough to defecate on police cars like the Occupy Wall Street hipsters should deeply, deeply trouble every radio station, newspaper, and television news network along with the American people.

Just how out of touch are the people the news media relies on as legal experts used to help form both their and their audiences’ opinions? More so, is it not abundantly obvious that legal experts let their own partisanship shape their opinions?

All of this, however, overshadows a more important issue — how the hell did a constitutional, democratic republic come to depend on the whims of one man in a black robe who nobody ever elected to anything?

Two years ago, Jan Crawford of CBS News noted the President, in his State of the Union, deviating from modern precedent in those speeches to lash out at the United States Supreme Court.

Mr. Obama, for the first time in modern history, took a direct shot at the Supreme Court in his State of the Union address, when he slammed the justices for their recent campaign finance reform decision. Six of them looked on — including the author of the opinion, key swing vote Anthony Kennedy — while Democrats jumped up to whoop and holler.

Shortly thereafter the Democrats, without a single Republican vote, passed Obamacare.

That Justice Kennedy yesterday raised a point that has been raised by so many non-lawyers is irrelevant to how the Supreme Court rules. All that is relevant is the President’s insult two years ago. Why?

This morning the New York Times reports that “many legal scholars, including some conservatives, have been predicting that the Supreme Court will uphold the 2010 health care overhaul.” In a profile of Randy Barnett yesterday in the New York Times, the paper reported there as well that “many of his [Randy Barnett's] colleagues, on both the left and the right, dismissed the idea [that Obamacare is unconstitutional] as ridiculous — and still do.” See also this Politico story also pushing the Democratic line that Chief Justice Roberts is in danger of his own Bush v. Gore. This is precisely the Democratic spin and you can see which outlets are mouthpieces for the Democrats by those so quick to push the partisan line against the Court.

Legal scholars the media pays attention to — who are typically on the left, though with a few token like minded “conservatives” — all thought that, based on their jurisprudential biases, Obamacare would be constitutional. About the only left leaning constitutional scholar in America who agreed with the tea party movement and, consequently, with Anthony Kennedy was Barack Obama in 2008.

Justice Kennedy, raising the same point raised by so many on the right going back to the 1990's when Republicans originally suggested the individual mandate as an alternative to Hillarycare (yes, many conservatives and libertarians opposed it then too), stunned the legal community yesterday because he deviated from a liberal echo chamber.

Consequently, his deviation can only be explained away by partisan politics, not legal jurisprudence. That so many liberal legal scholars disagree with Kennedy is proof he is a partisan. Already the White House and Democratic operatives are screeching that this is just like Bush vs. Gore all over again. They do not presume that the liberal justices are partisan — only the conservatives. On this argument of partisanship, as Steve Hayes notes, it is striking that the presumption in the Obamacare arguments is that one or more conservative justices will bolt left. In other words, the liberal justices are locked in and the conservatives are persuadable. How exactly does that make the conservative justices partisan and the liberal justices pure?

In fact, it is both projection by the left, which makes everything from Trayvon Martin’s tragic death to a Supreme Court oral argument political, and an argument designed by the left to cook the books in their favor, calculating the GOP will not engage in a fight over the partisanship of the Supreme Court because the right does not want to revisit Bush v. Gore. The left is pretty sure if they scream partisanship loudly enough, no Republican will stand up and defend the Court as the left assaults its integrity.

But they miss one thing. A sizable majority of Americans agree with Justice Kennedy. They are also not helped by widespread agreement on the left and right today that the Solicitor General of the United States had an atrocious performance and Paul Clement, arguing for the states, hit every ball out of the park assisted by some terribly insipid questioning from Sonia Sotomayor.

As partisans on the left start screaming that the conservatives have politicized the federal bench in a way they did not by attacking Robert Bork or some such nonsense, they ignore both their partisan attacks on Robert Bork, Clarence Thomas, etc. and their intellectually dishonest legal progeny derived from Roe vs. Wade. That case, still a source of conflict in America, is no longer even defended as intellectually rigorous by Justice Ruth Bader Ginsberg. She may like its holding, but not how that holding was reasoned.

Every time the left wins an argument expanding the meaning of the constitution, the Court somehow got it right. Every time the left loses an argument over the constitution, the Court somehow became politicized. And while the right says the same on the opposite cases there is a fundamental difference.

The right’s position on constitutional jurisprudence boiled down to its essence is that every man and woman in America should be able to read the constitution and have a fair understanding of it and how government is supposed to work. One cannot read the constitution and legitimately understand exactly how an abortion right is extrapolated out of the Bill of Rights. Likewise, one cannot read the constitution and understand how a Congress of limited powers can compel any person to purchase a product he does not want.

But liberal legal scholars so stunned at Justice Kennedy’s point favor a constitution where the public must hire them and their brethren to bow before men and women in black robes offering up prayers and petitions that our black robed masters divine from the text of the constitution some new right or government power no man on the street can see.

We have complicated our tax code, our regulations, and our legal system. In each we must now pay self-appointed experts trained in the art of gobbledegook to parse words, divine intent, and lobby for exceptions that prove rules.

Our nation is no longer a nation of laws, but a nation of elites who interpret those laws for us. It has all led to a very logical place.

In placing our constitution in the hands of a black robed elite who can divine from thin air powers, rights, and duties neither contemplated nor easily extrapolated from the constitution, our republic has become a kingdom. Our king is Anthony Kennedy. Every argument advanced is advanced with him in mind. On every major issue he is the decisive vote.

Put bluntly, the constitutional integrity of our republic has been ceded to one man in the third branch of our federal government. It makes him more powerful than the democratically elected Congress and President. It is not a sign that our system is too partisan. It is a sign that our system is broken in a fundamental way.

But the dirty little secret is that while legal experts and scholars may agree the system is broken, they only think so when Anthony Kennedy disagrees with them.

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