Supreme Court of the United States

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Gay rights and the Supremes

Justice Antonin Scalia has made it clear that he is, at best, uncomfortable with the series of decisions made by the Supreme Court on gay rights.  Soon after the decisions last June on DOMA and Prop 8,  Asawin Suebaeug wrote an article for Mother Jones in which the best and worst parts of his dissents were highlighted. 

Justice Antonin Scalia is not a big fan of gay sex, gay marriage, or gay anything. His dissent to Wednesday’s decision on United States v. Windsor, in which the Supreme Court ruled, 5-4, that legally married same-sex couples should get the same federal benefits as straight ones, shows as much. (The high court’s ruling invalidates a provision of the Defense of Marriage Act that barred same-sex couples from receiving health, tax, and retirement benefits.) In a nutshell, Scalia’s dissent focuses on the court’s prime purpose and power, and he is aghast that the majority assumed the power to shoot down DOMA. (To read the seven worst things Scalia has said or written about homosexuality, click here.)

And Andy Borowitz has made a cottage industry out of zinging him including “Scalia Arrested Trying to Burn Down the Supreme Court”.

WASHINGTON (The Borowitz Report)—In a shocking end to an illustrious legal career, police arrested Justice Antonin Scalia today as he attempted to set the Supreme Court building ablaze.

Justice Scalia, who had seemed calm and composed during the announcement of two major rulings this morning, was spotted by police minutes later outside the building, carrying a book of matches and a gallon of kerosene.

…

Back at the Supreme Court, Justice Scalia’s colleagues said they hoped he would get the help he needed, except for Justice Clarence Thomas, who said nothing.

Meanwhile  Justice Ruth Bader Ginsburg celebrated the marriage of a long time friend to another man while Justice Anthony Kennedy who wrote the decision on DOMA is being celebrated himself.

Justice Kennedy was a guest at an event in San Francisco featuring the Gay Men’s Chorus and speeches thanking him for his DOMA decision as well as his two previous decisions expanding gay rights.  The New York Times reported

The San Francisco Gay Men’s Chorus sang “Give ’Em Hope” for a revered and in some ways surprising guest who shared a California stage with them last month: Justice Anthony M. Kennedy.

Justice Kennedy was in San Francisco for an American Bar Association meeting, but he was also there to be celebrated by the men on the risers behind him. In remarks from the stage, San Francisco’s mayor, Edwin M. Lee, thanked the justice “for upholding the Constitution and justice for all” in his majority opinion in June in United States v. Windsor, a major gay rights victory.

“Freedom is always a work in progress,” Justice Kennedy said in his own remarks, making clear that there was more work to be done.

Justice Ginsburg performs an historic marriage ceremony.

Justice Ginsburg performs an historic marriage ceremony.

justice Ginsburg became the first Supreme to officiate at a gay wedding.

Ginsburg officiated Saturday at the marriage of Kennedy Center President Michael Kaiser and John Roberts, a government economist.

“Michael Kaiser is a friend and someone I much admire,” Ginsburg said in a written statement Friday. “That is why I am officiating at his wedding.”

…

“I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship,” Ginsburg told The Washington Post in an interview.

“It won’t be long before there will be another” performed by a justice. She has another ceremony planned for September.

Kaiser told The Associated Press that he asked Ginsburg to officiate because she is a longtime friend.

So at least two, and if we take Justice Ginsburg at her word, three Supreme Court Justices moving forward with the times.

Has anyone else noted that one of those getting married was John Roberts?  Wonder what the Chief Justice thinks about that?
Photograph:  Margo Schulman/Kennedy Center
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Official end to California’s Prop 8

I woke up this morning to this news from the New York Times

Gay Couples Who Sued in California Are Married

Kris Perry and Sandy Stier, who have been together for more than 15 years and have four sons, were married at San Francisco City Hall by Attorney General Kamala Harris on Friday.

Kris Perry and Sandy Stier, who have been together for more than 15 years and have four sons, were married at San Francisco City Hall by Attorney General Kamala Harris on Friday.

The two couples who sued to overturn California’s ban on same-sex marriage were married late Friday afternoon, just hours after the United States Court of Appeals for the Ninth Circuit, in San Francisco, lifted the stay that had been in place.

The court had stopped same-sex marriages while the case wound its way through the Supreme Court, which issued its decision to clear the path for same-sex marriages in California on Wednesday.

Attorney General Kamala Harris rushed to San Francisco City Hall within minutes of the ruling to perform the wedding for Kris Perry and Sandy Stier, who have been together for more than 15 years and have four sons.

And in LA

Mayor Antonio R. Villaraigosa of Los Angeles, on his last workday in office, officiated at the Friday evening wedding of Paul Katami and Jeffrey Zarrillo, the two other plaintiffs in the case. Until Friday afternoon, they had no idea when their marriage could take place.

“Nobody really knew; that’s what our lawyers are there for. We don’t really care about any of that at this point, but we’re on our way to see the mayor,” Mr. Zarrillo told KCRW, a public radio station in Los Angeles.

The pair were stuck in traffic en route from their home to the county office to obtain their marriage license and then to City Hall downtown. But by 6:30 they walked in front of dozens of television cameras, kissed Mayor Villaraigosa and were pronounced married.

“Your relationship is an inspiration to us all,” Mr. Villaraigosa said. “Today, your wait is finally over.”

“Equal feels different,” Mr. Katami said. Mr. Zarrillo added, “Equal feels good.”

The Ninth Circuit acted with unusual speed.

Many legal experts and advocates had expected the court to wait for an official decision from the Supreme Court, as is the normal practice. But after the initial ruling was issued on Wednesday, Ms. Harris urged the Circuit Court to act immediately and said she would ensure that all counties in the state were prepared to issue licenses to same-sex couples.

Just after 3 p.m. Friday, the three-judge panel issued a one-sentence ruling lifting the stay on a district judge’s injunction to not enforce the ban on same-sex marriages.

Gov. Jerry Brown issued a statement late Friday afternoon saying that he had directed the state’s Department of Health to notify all 58 counties in the state that “same-sex marriage is now legal in California and that marriage licenses must be issued to same-sex couples immediately.”

I know there had been some confusion about the impact of the Supreme Court decision.  Some thought it would only apply to the plaintiff, but since the District and Appeals courts had already ruled Prop 8 unconstitutional it turns out that only the stay had to be lifted.

From Massachusetts:  Welcome to Marriage Equality, California!  And an aside to the opponents – don’t worry, the sky will not fall.  This is number 13.  Which state will be next?

Photograph:  Jim Wilson/The New York Times

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Baseball and Justice Sotomayor or Flood v. Kuhn revisited

Anyone who loves baseball and history will love this story.  I found it on NPR reported by Nina Totenberg who covers the Supreme Court.  It is about a combination moot court and historic re-enactment.  The case is Curt Flood v. Bowie Kuhn from 1972.  Law school often do this kind of re-enactment, but this one was sponsored by the Supreme Court Historical Society.  Justice Sotomayor presided from the seat of the Chief Justice.

For those who don’t remember, the case was brought by St. Louis Cardinals great Curt Flood, who challenged baseball’s reserve clause — the provision that allowed teams to virtually own players, set salaries and conduct trades, with the players for all practical purposes never able to negotiate freely with other teams. That meant that at the time Flood brought his challenge in 1970, he was earning what was then considered a top salary of $90,000. This, for a player who had signed with the Cards at age 18, with no agent or lawyer, and who in six of the next 12 seasons batted .300 and won seven Gold Glove awards. So, when he was traded to the Philadelphia Phillies, a definitely lesser team at the time, he refused to go, and could not play for any team.

He wrote to the then-baseball commissioner, Bowie Kuhn, protesting that he was “not a piece of property to be bought and sold.” Kuhn denied his request for free agency — a concept unrecognized by baseball back then — and Flood sued, seeking to block the perpetual use of the reserve clause.

Flood lost, but baseball changed forever as the free agency system was put into place anyway.

In 1994, however, nearly two decades after the Flood decision and the ensuing changes in baseball, the owners sought to effectively nullify the free agency system, and the baseball players struck, wiping out the playoffs and the World Series. The National Labor Relations Board went to court, contending that the owners were negotiating in bad faith, and the case came before a young federal district court judge named Sonia Sotomayor.

She agreed that the owners were colluding illegally to fix salaries and granted a temporary injunction barring them from doing that. Sotomayor, a wildly dedicated Yankees fan, issued her opinion in time to allow the new baseball season to begin as scheduled on opening day, with the old baseball contract in effect. She thus earned the title, “the judge who saved baseball.”

The arguments in the re-enactment veered between history and current day baseball.

Representing Flood at the re-enactment was Stanford Law professor Pamela Karlan, a frequent Supreme Court advocate, and ironically, a former Blackmun law clerk. And representing Major League Baseball was another frequent Supreme Court advocate, Roy Englert.

Karlan opened, noting that the Supreme Court’s 1922 and 1953 decisions upholding baseball’s antitrust exemption were outliers and that the court had not permitted such an exemption for any other professional sport.

Sotomayor asked why the court should “break with tradition,” thus depriving the owners of their “reliance” on previous decisions.

Karlan shot back that if the court were to side with the owners for a third time, it would amount to something done in baseball only once before — three errors on a single play.

Sotomayor, with a straight face, opined that the court could apply another baseball rule: three strikes and you’re out.

Karlan, undaunted, replied, “I’m swinging for the fences here, your honor.”

Sotomayor is escorted onto the field by New York Yankees catcher Jorge Posada to throw out the ceremonial first pitch before the New York Yankees game against the Boston Red Sox at Yankee Stadium on Sept. 26, 2009.

The next exchange con free agency and salaries management to get in a dig at Sotomayor’s favorite Yankees.

Sotomayor asked what would happen if the court were to take away the antitrust exemption. Wouldn’t the players move around so much that fans would have no team loyalty?

No, rejoined Karlan, the owners would just have to pay the players what they are worth in order to hold on to them, and instead of year-to-year contracts that leave players with no leverage, the owners would have to negotiate longer-term contracts.

Sotomayor, in mock horror, said that if the antitrust exemption were abolished and owners could no longer collude to set player salaries at will, the Yankees might have to pay Reggie Jackson $1 million a year!

Worse, replied Karlan, would be if the Yanks paid Alex Rodriguez a quarter of a billion dollars not to play.

“I can’t imagine such a thing!” answered a shocked Sotomayor.

Next at bat were the owners.

Next up to the lectern was Roy Englert, representing the baseball commissioner and owners. He noted that some 50 bills had been introduced in Congress over the years to eliminate the antitrust exemption, and none had passed. The court, he said, should leave the question to Congress.

But Sotomayor asked, “Where are the rights of the players?” Quoting Curt Flood, she said that the baseball system was a form of “involuntary servitude” that does not exist in any other industry.

Englert replied that “these young men are making on average $28,000 … as much as Supreme Court justices.” Moreover, unlike other sports, he observed, baseball puts enormous investment into training players in the minor leagues.

The case does involve some serious legal questions, some raised by the decision written by Justice Blackmun.  It appears that Blackmun was reluctant to overturn the prior decisions, but wrote his opinion in such a was that everyone understood that baseball did in fact fall under that anti-trust laws and does engage in interstate commerce.

Justice Sotomayor concluded

‘There are Supreme Court decisions that are wrong,” she said. The court’s 1896 decision upholding segregation was wrong, and the Supreme Court was right to reverse it in 1954. But sometimes, she said, the question is not whether the decision was wrong, but whether this is the right time to overrule it.

Today, she observed, we see as “horrible” the reserve clause that deprived players of any real negotiating power. But at the time, what both sides thought they were arguing about was “the very survival of baseball.”

Photograph of Justice Sotomayor and Jorge Posada by Bill Kostroun/AP
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Clarence Speaks – and makes news

It has been seven years or so since Justice Clarence Thomas has said word at  Supreme Court during oral arguments so when he spoke, he made the news.  But he still hasn’t asked a question, so that streak is intact, and we aren’t really sure what he said.

According to the Washington Post

Thomas seemed to be making a lighthearted joke about lawyers trained at his alma mater, Yale Law School, or its rival, Harvard; the Ivy League is a common Thomas target. But several justices were speaking and laughing at the time, and Thomas’s exact comments apparently are lost to history.

Too bad.  This is what we have for a transcript.

Monday’s case was from Louisiana, and the question was whether years-long delays in funding lawyers for an indigent man facing the death penalty violated his right to a speedy trial.

Jonathan Boyer’s lawyer, Richard Bourke of New Orleans, said the delay meant that Boyer did not have lawyers competent to handle a complicated murder case that brought the prospect of the death penalty.

Justice Antonin Scalia, however, suggested that Boyer did have qualified lawyers. Didn’t one of them go to Yale? he asked Carla S. Sigler, the Louisiana assistant district attorney in the case.

She did, Sigler said. And didn’t another attend Harvard? Scalia asked. Yes, again, Sigler said.

“Son of a gun,” Scalia said.

Thomas was among the justices — all nine attended either Harvard or Yale — who either laughed or made side comments at that point.

All that appears in the transcript is Thomas saying, “Well — he did not — ”

It seems likely that the rest of the sentence was along the lines of “have competent counsel.” Sigler, smiling, replied: “I would refute that, Justice Thomas.”

Sotomayor, a Yale graduate, then asked Sigler what was enough to make a lawyer constitutionally adequate.

“Is it anybody who’s graduated from Harvard and Yale?”

More laughter.

“Or even just passed the bar?” Sotomayor asked.

“Or LSU law,” Sigler said, referring to Louisiana State University.

Thomas famously does not believe that the Justices should be asking pesky questions during oral argument believing that it is the time that the lawyers for each side should lay out their cases.  Other Justices don’t agree.

None of his colleagues, conservative or liberal, share such a view. They believe that the lawyers make their case in briefs filed with the court, and that oral arguments are the chance for the justices to challenge their theories and make them respond to their opponents’ arguments.

Makes me wonder if he reads any of the briefs.  He doesn’t have to because Justice Scalia is around to tell him how to vote.

English: The United States Supreme Court, the ...

English: The United States Supreme Court, the highest court in the United States, in 2009. Top row (left to right): Associate Justice Samuel A. Alito, Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Bottom row (left to right): Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin G. Scalia, and Associate Justice Clarence Thomas. (Photo credit: Wikipedia)

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