Blog No. 74, Part II. The Supreme Court: The Affordable Care Act, Same-Sex Marriage and Other Interesting Issues.


In Part I we discussed the decisions of the Supreme Court concerning the Affordable Care Act and same-sex marriage. This Part II will briefly consider four other end of term decisions worthy of note. First, however, we offer some observations concerning Justices Scalia and Kennedy.

Justice Scalia

In Part I, we noted that the dissents in the same-sex marriage case, Obergefell v. Hodges, expressed their objections in “vigorous and sometimes strident terms.” In fact, that was something of an understatement in the case of Justice Scalia. Scalia has long been known for the polemic nature of his dissents (often when addressing a majority opinion by Justice Kennedy). But in Obergefell, he outdid himself. For example: “The opinion is couched in a style that is as pretentious as its content is egotistic” and “[If] I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.” Scalia’s intemperate rhetoric obviously did not go unnoticed. Professor Eric Segall, wrote a tart blog in Dorf on Law on July 1, “Why Justice Scalia Should Seriously Consider Retiring,”  in which he commented on not only the venting of the Scalian spleen but various inconsistencies he finds in Scalia’s opinions.

Scalia’s dissent in Obergefell did include one passage for which we felt some measure of sympathy. In particular, he complained that the Court is an unrepresentative body:

[This Court] consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

Ironically but understandably, Scalia did not pause to note, much less decry, the uniform religious affiliation of his fellow dissenters. And we would hardly urge the recognition of an evangelical Christian “seat” on the Court. Nevertheless, we believe that some relief from the Harvard/Yale hegemony, and other nods to intellectual diversity, might well be of benefit. For example, every one of the current justices, except Justice Kagan, was appointed from a seat on a federal circuit court. Unlike some previous justices, none had experience as a legislator or as judge in a state court and only Justice Sotomayor had experience as a trial judge.

Justice Kennedy

Justice Kennedy has long been recognized as the key “swing voter” on the Court: a conservative who will generally vote with his conservative colleagues but who will on occasion join with the four liberal justices in a 5-4 decision. Charting that course. Kennedy has inevitably drawn criticism from left and right. (See, e.g., Douglas M. Parker, “The Swing Voter & His Critics,” The Green Bag, Spring 2008.) Critics on the right have been disappointed (or outraged) by Kennedy on matters as varied as habeas corpus for Guantanamo prisoners, abortion, gay rights and the death penalty. For critics on the left, there has been no decision in many years that they have disliked more than Kennedy’s majority opinion in Citizens United. On matters of the environment and affirmative action, he has sometimes disappointed conservatives, sometimes liberals, and taken a position that disappointed both.

Through it all, Kennedy has regularly led his colleagues in frequency of voting with the majority in all cases and in 5-4 decisions. The latter 5-4 decisions draw the most attention from the media and the public, but it is well to remember that they account for a relatively small portion of the Court’s docket (19 of 74 in the recent term). While not all of them reflect a clear division between liberal and conservative justices, such decisions often include the cases generally thought to be of the greatest importance.

Kennedy’s importance continued in the 2014 Term ending on June 30, but with a significant difference. In the past year, Kennedy broke his usual pattern by voting more often with the liberal justices (8 cases) than with conservatives (5 cases). As a result, conservative victories in ideologically divided cases amounted to only 38% as compared with 67% in the 2013 Term and a range from 50% to 73% in the terms from 2005 through 2012. None of that, we hasten to add, means that Kennedy, let alone the Court as a whole, had “moved to the left” as some observers saw it. On the contrary, it is far more likely to be merely a consequence of the mix of cases on the Court’s docket in the last term, and the next term may well yield more typical results.

With that background, we will turn to the four end-of-term cases that we found of interest. Two cases represented a conservative victory and in two the liberals prevailed. Kennedy voted with the majority in each case and wrote the opinion of the Court in one of the cases wherein he joined the liberals.

Michigan v. EPA

In this case, the conservative majority invalidated an EPA rule regulating mercury emissions from power plants. The opinion by Justice Scalia held that EPA’s failure to provide a cost benefit analysis at the outset violated a statutory command to regulate power plants only after determining that regulation was “appropriate and necessary.” While the EPA had subsequently made such an analysis, Scalia questioned its methodology and held that, in any event, it had come too late to support the EPA’s initial action.

It is not clear how much of an impact the decision will have on regulation of the emissions in question or EPA regulation in general, including the highly controversial regulation of carbon emissions. It may, as some have concluded, merely reflect a procedural error that can be readily corrected. But it also suggests that the Court, or at least its conservative members, will cast a wary eye on both procedures and matters of cost. That may prove significant given the expansive role in which the administration has cast the EPA. In that connection, Justice Kennedy’s inclusion in the majority may also be worth noting because, in some important past cases, he has been more receptive to EPA regulation than his fellow conservatives (e.g., Massachusetts v. EPA in 2007 concurring in a decision that the EPA could regulate CO2 emissions under the Clean Air Act).

Arizona State Legislature v. Arizona Independent Redistricting Commission

The liberal justices, joined by Justice Kennedy, upheld an Arizona ballot initiative that placed responsibility for drawing lines for Congressional districts with an Independent Redistricting Commission. The purpose of the initiative was to remove that responsibility from the Arizona legislature in order to avoid gerrymandering. (Most readers will be familiar with the term gerrymandering, but Justice Ginsburg’s opinion for the Court explained its origin: “The term “gerrymander” is a portmanteau of the last name of Elbridge Gerry, the eighth Governor of Massachusetts, and the shape of the electoral map he famously contorted for partisan gain, which included one district shaped like a salamander.”) In response to concerns over gerrymandering, some twenty-one states have adopted some form of non-partisan or bipartisan redistricting commission. Hence the decision had importance beyond the boundaries of Arizona.

The Arizona case turned primarily on an interpretation of the Election Clause of the Constitution:

“The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

The Arizona legislature contended that “Legislature” meant only a legislature, in this case itself. The majority, however, found that in the context of the Election Clause, “Legislature” was broad enough to encompass legislative action by the people, as expressly authorized by the Arizona constitution, and that such an interpretation was consistent with “the fundamental premise that all political power flows from the people.” Justice Kennedy did not write separately but allowing Arizona to determine its own procedure may have appealed to his sense of federalism.

The principal dissent was written by the Chief Justice, with separate dissents by Justices Scalia and Thomas. As Roberts saw it:

Nowhere does the majority explain how a constitutional provision that vests redistricting authority in “the Legislature” permits a State to wholly exclude “the Legislature” from redistricting. Arizona’s Commission might be a noble endeavor—although it does not seem so “independent” in practice—but the “fact that a given law or procedure is efficient, convenient, and useful … will not save it if it is contrary to the Constitution.” [citation omitted] No matter how concerned we may be about partisanship in redistricting, this Court has no power to gerrymander the Constitution.

While we believe that, as a matter of legal interpretation, the dissents had the stronger argument, we share the concerns of voters in Arizona and elsewhere who turned to independent commissions as a response to gerrymandering, a problem that the Court has consistently declined to address.

Whether the decision will have an impact beyond redistricting commissions remains to be seen. At least one scholar has argued that it may open the way for procedures incorporating direct democracy in presidential elections and a plan adopting such a procedure has been provisionally approved in ten states. (See Vikram David Amar, “What the Supreme Court’s Arizona Redistricting Ruling Means for Presidential (Not Just Congressional) Election Reform” in Verdict) 

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project

The Department of Housing and Community Affairs (Department) supports creation of low-income housing by distributing to developers tax credits provided by the federal government. The Inclusive Communities Project (ICP) claimed that the Department had allocated too many tax credits to housing developments in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. According to the ICP, that practice perpetuated segregated housing patterns and therefore violated the Fair Housing Act (FHA) by having a “disparate impact” on racial minorities. The issue before the Court was whether a showing of “disparate impact” would support a claim under the Fair Housing Act—even in the absence of any evidence of a discriminatory intent.

An opinion by Justice Kennedy was joined by the liberal justices and held that claims of disparate impact could be sustained under the FHA. Kennedy based his ruling on decisions of the Court allowing disparate impact claims under other statutes and the fact that Congress had re-enacted the FHA without change after all nine federal circuit courts to consider the question had interpreted the FHA as allowing such claims. The principal dissent by Justice Alito insisted that the language of the FHA addresses only actions taken “because of” race and necessarily implies a discriminatory intention. We are inclined to agree with Justice Alito as a matter of statutory interpretation. We would further agree that the precedents cited by Kennedy were themselves flawed although, having been on the books for a considerable time, they were perhaps entitled to greater respect than Alito gave them.

In any event, Texas Department settled the question, and since it confirmed previous authority, it is doubtful that the decision will have a noticeable effect in other states. Nevertheless, troublesome questions of law and policy remain. As Kennedy noted, the underlying federal law “favors the distribution of these tax credits for the development of housing units in low-income areas.” How is that policy imperative to be balanced against a requirement to avoid perpetuating racial concentrations in the low-income areas where they are found? That is a dilemma with which the Department of Housing and Urban Development has struggled throughout its existence.

In Texas Department, the ICP complained that too many credits had been allocated to black (low income) areas. According to the ICP, data showed that the Texas Department had approved approximately 50% of proposed units in largely “non-Caucasian” areas and only 37% in “Caucasian” areas. But does 50% seem surprising or inappropriate (or “disparate”) given the need to provide housing in low-income areas? The opinions in the Supreme Court and in the circuit court do not reveal what ratio the ICP would have considered acceptable or the basis for that judgment. Nor do they indicate what countervailing hardships would result from allocating more support to housing in Caucasian areas, i.e. hardships on residents of low-income areas who are unwilling or unable to move away from their neighborhoods to benefit from the housing in Caucasian areas.

The decision in Texas Department is closely related to an initiative announced on July 8 by the Department of Housing and Urban Development. That initiative, which may be more significant than the judicial decision, is a new fair housing rule applicable to state and local governments that receive grants from HUD. The rule, “Affirmatively Furthering Fair Housing,” calls for HUD to provide massive amounts of data to its grantees with respect to “patterns of integration and segregation, racially and ethnically concentrated areas of poverty, disproportionate housing needs, and disparities in access to opportunity.” The grantees will be required to use that data to formulate plans for improving housing opportunities that must then be approved by HUD.

The new HUD Rule was initially published in July 2013 and subsequently received a deluge of largely critical comments. (Two thirds of the 376-page Final Rule is taken up with summaries of the comments and HUD’s responses.) As time for publication of the Final Rule approached, increasingly harsh reactions began to appear in the media and on Capitol Hill. The leader of opposition to the bill in the House was Rep. Paul Gosar, Republican of Arizona, who in April introduced a bill to block the proposed regulation. The gist of the criticism by Gosar and others is that the Rule amounts to an exercise in “social engineering” and a vast overreach of federal authority, taking over powers such as zoning, that properly reside with local governments.

When the Final Rule was announced this week, it was hailed by civil rights groups. In the meantime, however, the House had already passed Gosar’s bill. The fate of Gosar’s bill in the Senate is uncertain, but it is clear that the fight is far from over. Our own view is that the hopes of HUD and other supporters of the Rule are probably exaggerated, as are the fears of its opponents. We are sympathetic to the goal of increasing housing opportunities for minorities and diminishing racial concentration, but we are skeptical that the HUD Rule will prove be an effective means of doing so. Conversely we doubt that the Rule will have the destructive effect on communities foreseen by Gosar and others. The Rule appears far too cumbersome and complex for anything to happen very quickly or, even over a longer period, against determined political and legal resistance at the local level. In the end, of course, if communities feel oppressed by the Rule, they have a simple solution: doing without HUD grants (a path that conservatives should applaud and that might not be such a bad idea if it caught on.)

Glossip v. Gross

In an opinion by Justice Alito, a conservative majority rejected a plea to enjoin the use of a particular substance as a legal injection in carrying out a death sentence. The decision was noteworthy not for the result, but for a dissenting opinion by Justice Breyer. Breyer joined the principal dissent by Justice Sotomayor, but wrote separately, in a dissent joined by Justice Ginsburg, to urge the Court to take up the fundamental question of whether, under the Eighth Amendment’s prohibition of “cruel and unusual punishment” the death penalty is constitutional at all. The Breyer dissent provoked rebuttals from majority justices in the form of separate concurrences by Justices Scalia and Thomas vigorously defending the constitutionality of the death penalty.

At the end of a blog that is already too long, we will not burden readers by attempting to summarize, let alone appraise, the competing arguments, but we will plan to address them in a future blog. In the meantime, of course, the opinions are available (as almost all Supreme Court opinions are) at the Legal Information Institute of Cornell Law School.  For those who lack either time or stamina to plunge into Supreme Court opinions, we would strongly recommend a column by George Will in The Washington Post written several weeks before Glossip, “Capital punishment’s slow death.” 

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With that, the Supreme Court went on vacation just as we are about to. But while the Court will not return until October, we expect to be back in August. Before leaving, however, we are posting a very brief Special Bulletin on the subject of Donald Trump.

One thought on “Blog No. 74, Part II. The Supreme Court: The Affordable Care Act, Same-Sex Marriage and Other Interesting Issues.

  • In the spirit of the lazy days of summer (I only wish!) and well before reading the notice at the end of this erudite and appreciated submission, it occurred to that Justice Scalia was most deserving of the Donald Trump “Turn of the Phrase” award.

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