Justice Stevens on King v. Burwell, Glossip, Obergefell, and (once again) McDonald v. Chicago

August 3rd, 2015

At the ABA International Human Rights Award Luncheon, John Paul Stevens (who used to be a Justice) offered a Supreme Court roundup with comments on King v. Burwell, Glossip, Obergefell, and for the umpteenth time, McDonald v. Chicago.

First on King v. Burwell, he calls the Chief’s opinion “excellent,” as it is “strong and cumulative evidence supporting the proposition that his votes as a judge are determined entirely by his understanding of what the law requires rather than being influenced by his views of sound policy.” Stevens explains that the phrase “Established by the state” “first appeared in early drafts of the legislation when its authors thought that the only exchanges to be adopted would be those established by the States.” I’m not sure what he means by this sentence. If anything, antecedent bills by Baucus and others used the language “established by the States” in regimes that would have denied certain benefits to states that didn’t take certain actions–proving that this was an approach Congress had considered before, and it wasn’t some sort of scriveners error.  And then Justice Stevens relies on the long-discarded argument: “the drafters’ failure to remove the term ‘exchange established by the state’ should be viewed as a the equivalent of a scrivener’s error.” This is wrong on so many levels, and not even the Solicitor General advanced this argument. Rather, the government argued that the phrase was a “term of art.” Then JPS goes on his now well-worn rant about how Printz was wrong, and that Congress could have required the states to establish an exchange.

Second, Stevens “welcomed” the Court’s decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, as the dissent’s position would have “been tantamount to granting the State Legislature a permanent license to engage in political gerrymandering.” He writes, “just as it is settled that judges should construe statutes to avoid constitutional issues wherever possible, it seems to me that it was entirely appropriate for the majority in that case to treat the product of a popular initiative as the equivalent of a law enacted by the legislature.” Stevens doesn’t seem to much care what the phrase “Legislature” actually means–the fact that it avoids gerrymandering is enough. JPS further faults Justice Scalia’s “hyperbola” in his dissent, in contrast with the Chief’s who “avoids the use of any disrespectful rhetoric – which is another reason why I admire his work even though I frequently disagree with his views.” (The plural of hyperbole is hyperboles. Hyperbola is a geometric figure. More on JPS’s geometry latter).

Third, Stevens discusses Glossip v. Gross, and in particular Justice Breyer’s “careful[]” dissent, which “prompted an oral response by Justice Scalia, which, I am quite sure, was the first time in the Court’s history that a concurring Justice thought it appropriate to make an oral response to a dissenter’s oral statement.” (I thought it was the first time, so I’ll take this as a confirmation). Stevens hopes that the “risk that juries in death cases will not represent a fair cross section of the community” will “provide the basis for a nation-wide solution that brings the United States to the point that most civilized countries reached long ago.”

Finally, Stevens turns toward Obergefell, “the most significant opinion announced during the Term.” JPS was “[s]urprised by [AMK’s] decision to rely primarily on substantive due process rationale rather than the Equal Protection Clause, but after reflection, I am persuaded that he was wise to do so.” Why? The answer may surprise you, as it conflicts with the overwhelming consensus of the Circuit Court opinions: “the difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently.” Yes, the “responsible procreation” defense offers a rational basis to justify traditional marriage laws. Tell that to Judge Posner and all those infertile opposite-sex couples (as Justice Kagan mentioned during arguments in Windsor). In contrast, “the substantive due process doctrine is more appropriate for an all-or-nothing analysis.” Stevens concludes that “the right to marry, like the right to decide whether to have an abortion or the right to control the education of your children, fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment.” “Squarely”? JPS really must have struggled with geometry and the square peg/round hole toy as a kid.

Next JPS offers a unifying explanation about Lochner: “Cases overruling Lochner [did not] reject[] the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation.” This is sophistry. By the time the Court decided Ferguson v. Skrupa, substantive due process was given a complete burial. However, only a few years later, it was disinterred to justify Justice Douglas’s ethereal decision in Griswold (remember the emanations from the penumbras?). The distinction between economic liberty and other types of rights does not find refuge in Footnote Four of Carolene Products, but must be gleaned by the Warren and Burger Court’s partial resuscitation of the doctrine.

Finally, Justice Stevens pivots to his dissent in McDonald v. Chicago, which Justices Ginsburg, Breyer, and Sotomayor couldn’t even stomach.

Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States. It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse but does include a right to possess a firearm in one’s home. …

I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that the Clause also protects an individual’s right to use a gun. The dissenters have things backward when they argue that it protects the latter but not the former.

Oh where do I even start. I think Justice Thomas’s concurring opinion was correct, and the Privileges or Immunities Clause was the more historically faithful approach to extend the right to keep and bear arms to the states. I also think Justice Scalia’s concurring opinion, where he basically says “get over it,” is flawed. But the argument Stevens advances is nonsensical. What is the basis of the “right to possess a firearm in one’s home.” The 2nd Amendment that specifically references keeping and bearing arms. The “right to choose your spouse”? That comes from some unenumerated right that emanates from the 14th Amendment. Which of the two is more clearly protected by the Constitution? This isn’t even a close call. Even if you take the position–as JPS did in Heller–that the Second Amendment only protects the militia, which extrapolation is less absurd? The 2nd Amendment to guns, or the 14th Amendment to same-sex marriage. It is Justice Stevens who has things “backward.”

P.S. If this post makes its way back to the Supreme Court, a kind request–please scan the speeches in a way so that I can select the text. Blogging these non-OCRd PDFs is a pain.