Tag Archives: Anthony Kennedy

The Kennedy Retirement and the Radicalizing of the Supreme Court

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Protesters swarmed Washington, DC, to voice their opposition to Brett Kavanaugh.

When Justice Anthony Kennedy announced his retirement from the Supreme Court, alarms went up about overturning Roe v. Wade, which would make abortion once again illegal in many states. As shown in Whole Woman’s Health v. Hellerstedt, in which Kennedy provided the decisive fifth vote overturning Texas’ draconian laws limiting abortion access, one justice can preserve the right to abortion. But Kennedy also voted with the majority in Planned Parenthood v. Casey in 1992, when the Supreme Court upheld a state’s right to impose extra requirements — mandatory counseling, waiting periods, etc. — on those seeking abortions. So, while he was willing to curtail access, he never was willing to overturn Roe v. Wade altogether.

In Brett Kavanaugh’s twisted worldview, paperwork is the true burden, while an unwanted pregnancy is not.

But Kennedy was the last independent conservative on the Supreme Court. Anyone Trump nominated was going to be on the far right because he was using the Federalist Society’s list compiled by Leonard Leo. Not quite a kingmaker, but definitely a justice-maker, Leo is also responsible for Justices Roberts, Alito, and Gorsuch.

But some on the right have some doubts about Kavanaugh. In response, the National Review emphasizes Kavanaugh’s judicial defense of “religious freedom.” (Nothing shows the real danger Kavanaugh poses like pundits on the far right reassuring other conservatives.) They lauded Kavanaugh’s ruling in favor of the Trump administration in the case of Jane Doe, the teenage immigrant the Department of Health and Human Services (HHS) tried to stop from having an abortion, as “the latest in a long, unbroken line of consistent decisions on issues of religion and abortion.” Continue reading →

Whole Woman’s Health v. Hellerstedt: Finally, Facts Matter

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On Monday, June 27, 2016, the Supreme Court decided that Texas HB2 was unconstitutional, eliminating requirements for Texas doctors to have hospital admitting privileges near their clinics and for abortion clinics to become surgical facilities. Many fine summaries of this landmark decision popped up within hours of the decision. See Planned Parenthood’s press release and “The Court once again makes the ‘undue-burden’ test a referendum on the facts” on SCOTUS Blog.

On Monday, the Supreme Court demanded that laws be supported by facts.

What struck me most about the majority opinions written by Justices Breyer and Ginsburg was the lack of assertion and conjecture so often found in the court’s previous abortion case decisions. Recall Justice Kennedy’s 2007 Gonzales v. Carhart opinion upholding Congress’ Partial-Birth Abortion Act of 2003: “We find no reliable data” that abortion causes women emotional harm, but we find it nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem,” and other ills. “Some women”? Did we really uphold a law based upon this kind of neo-paternalistic, fuzzy thinking?

Not this time out. The Supreme Court put future litigants on notice: Facts matter, science matters, logic matters, common-sense inference matters. Unsupported assertions? Nah. Consultants parading as scientists? Not so much. In workmanlike fashion, dealing with abortion in a frank and unapologetic way, the majority read into law 15 separate District Court findings of fact gleaned from stipulations, depositions, and testimony. Further, the court chastised Texas for “attempting to label an opposing expert witness, Doctor Grossman, as irresponsible.” Breyer writes, “making a hypothesis — and then attempting to verify that hypothesis with further studies, as Dr. Grossman did — is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony was sound, particularly given that Texas provided no credible experts to rebut it.” Wow — The Supremes defend the scientific method. Color me happy.  Continue reading →

Reproductive Justice?

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President Bill Clinton stands by as Ruth Bader Ginsburg is sworn in as associate Supreme Court Justice in 1993

President Bill Clinton stands by as Ruth Bader Ginsburg is sworn in as associate Supreme Court justice in 1993

When Justice Antonin Scalia died on February 13, 2016, it was the death of more than just one man. For the first time in 20 years, the fairly reliable conservative tilt of the Supreme Court vanished. Now there were four generally liberal justices, three remaining consistently conservative justices, and Anthony Kennedy, a moderate who, though usually conservative, could move to the left, especially on social issues, as we saw in his eloquent opinion in support of same-sex marriage. If Kennedy voted with the conservatives, it would result in a tie, not a 5-4 decision. In case of a tied vote on the Supreme Court, the lower court ruling holds, and if there are conflicting rulings in different circuits, we continue with different law in different parts of the country.

Or the court could order a rehearing of a case once a new justice is seated.

The makeup of the Supreme Court is a glaring example of how much is at stake in presidential elections.

The political wheels started turning immediately. Senate Majority Leader Mitch McConnell almost immediately announced that Scalia’s seat should be filled after “the American people” weigh in during the presidential election — Republicans always seem to forget that the American people have already weighed in twice by making Barack Obama president. This categorical rejection of any Obama nominee, no matter who, is unprecedented. Scalia’s seat was apparently sacred, and could only fairly be filled by a Republican appointee. McConnell does not seem to consider that the next president might also be a Democrat.

The change in the balance of the court was apparent in the first of two cases concerning reproductive health that were scheduled to be heard this month. (The second case, Zubik v. Burwell, will be argued on March 23.) At SCOTUSblog, Lyle Denniston analyzed the oral arguments in Whole Woman’s Health v. Hellerstedt. It was always clear that the outcome would hinge on Justice Kennedy, and, before Scalia’s death, that in all likelihood the Texas law requiring abortion doctors to have admitting privileges at nearby hospitals, and abortion clinics to meet ambulatory surgical clinic requirements, would be upheld. Continue reading →

Judging Sex: From Bowers v. Hardwick to Lawrence v. Texas

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Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas.

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas. Image: Metro Weekly

This week, two related Supreme Court cases both mark anniversaries.

Twenty-seven years ago (and yes, I totally had to get out my calculator for that one), on June 30, 1986, the Supreme Court issued its opinion in Bowers v. Hardwick. In it, the court concluded, “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” That is, even though previous courts had established and upheld a constitutional right to privacy when it came to some matters of sexual health — such as in Griswold v. Connecticut and Roe v. Wade — states were free to enact laws that made it illegal for people to engage in “homosexual sodomy” — basically, outlawing same-sex couples from having oral or anal sex.

June 26 is the 10th anniversary of Lawrence v. Texas, which struck down sodomy laws nationwide.

On its way to the Supreme Court, the relevant appeals court held that laws that discriminated against same-sex couples’ consensual sexual activities violated an individual’s “fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.” However, other courts of appeals had issued rulings in conflict with that sentiment. When the Supreme Court issued its ruling in Bowers, it explicitly rejected that same-sex sexual activity fell under the same constitutional right to privacy:

No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

However, another date in June — the 26th, to be specific — marks the 10th anniversary of a different case involving gay rights: Lawrence v. Texas. That ruling reversed and overturned the court’s decision in Bowers.

So in those 17 years between Bowers and Lawrence, what changed? Continue reading →

Book Club: Flagrant Conduct

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Although books have shaped much of my political thinking, until recently I never did much reading about LGBTQ equality. My own reasoning made me an ally, so I wasn’t as well versed as I could have been. That’s why I never knew the full importance and the unlikely history of the 2003 Supreme Court decision in Lawrence v. Texas — the landmark case that put sodomy laws on trial — until I picked up Dale Carpenter’s recently published history of the case, Flagrant Conduct: The Story of Lawrence v. Texas (W. W. Norton, 2012).

Sodomy laws gave police leverage to harass members of the LGBTQ community.

Flagrant Conduct tells the story of two men who were arrested for what they didn’t even know was a crime. They could have paid fines to put the incident behind them quietly, but activists and legal counsel convinced them to take their case all the way to the Supreme Court. Although they were strangers to activism, the two men agreed to use their case to defeat an unfair law. Five years later, the two men and their attorneys won a high-stakes victory in a conservative Supreme Court.

The arrest of John Lawrence and Tyron Garner in Houston on September 17, 1998 — 14 years ago today — was the event that led to Lawrence v. Texas. That night, deputies responded to a 911 call reporting that a man was “going crazy with a gun” in Lawrence’s apartment. The deputies who arrived never encountered a man with a gun, but they arrested Lawrence and Garner for engaging in, as the offense report put it, “deviate sexual intercourse[,] namely anal sex.” The two men were charged with violating the state’s “Homosexual Conduct” law, Section 21.06 of the Texas Penal Code. The law, which criminalized same-sex sexual intimacy, was put in place when Texas revised its sex laws in 1973, giving more sexual freedoms to heterosexuals but fewer to gays and lesbians. Continue reading →