Heard through the Marble

The Monkey Cage welcomes back Emory University’s Tom Clark for a guest post on the Supreme Court.

Yesterday, I attended oral argument in the Supreme Court’s Defense of Marriage Act (DOMA) case. This was particularly exciting for me, as I have argued in my research that concerns about the Court’s public perception and legitimacy, particularly in the context of intense public interest, may be consequential for the Court’s decision-making. As I stood among the protestors, both before and after oral argument, I could not avoid the conclusion that while the protestors’ physical voices were not audible in the courtroom, their presence was felt and was part of the underlying themes argued by the lawyers and justices.

About a year ago, I wrote a post on The Monkey Cage about the effect of public opinion campaigns on the Supreme Court’s decision-making in the Affordable Care Act (“Obamacare”) case. There, I argued that efforts to build popular support in favor of the ACA could potentially reach the Supreme Court, and in the wake of the Court’s decision to uphold the ACA (particularly Roberts’ vote in support of ACA), there was much speculation that concerns for the Court’s reputation and public perception might have influenced the Chief Justice.

My thoughts on these questions remain unchanged, and I think the same logic holds in the case of DOMA. The flurry of endorsements of same-sex marriage by U.S. senators—mostly, but not only, Democrats—over the past few weeks is certainly not coincidental; this is a topic at the forefront of public discourse right now. Still further, public opinion research has documented a clear and consistent shift in favor of equal treatment for homosexual people, and the many recent public opinion polls have documented majority support for same-sex marriage rights (e.g., here and here). These are developments of which the Court is certainly aware and to which I believe it is sensitive.

It is in this context that I found myself, sitting yesterday in oral argument and walking around the Court building both before and after, thinking over the arguments I’ve made and considering whether I was seeing anything I’d argued in my research. A few points are particularly important. First, in the very front row of the reserved seating area sat both Nancy Pelosi and Valerie Jarrett, about five seats away from each other. Their presence in the courtroom was surely significant. I do not know how often top officials from both the legislative and executive branches come to observe oral argument, but I suspect it’s a fairly rare occurrence. If so, this serves as an important indicator to the justices about just how interested the elected branches are in this case – and of where public opinion stands. Such indicators can help the Court gauge the broader context in which it is making its decision.

Second, there was some relatively intense discussion of contemporary developments in public opinion about same-sex marriage, particularly during argument by Roberta Kaplan (the lawyer for Windsor, the plaintiff). In describing the rather momentous change in public opinion that has taken place over the past twenty years, Chief Justice Roberts asked, “I suppose the sea change [in public opinion] has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?” An exchange followed, and what it suggests both that the Court is well aware of significant changes in public opinion about same-sex marriage but also that the justices (at least the Chief Justice) are skeptical of what these rapid changes in opinion reveal about people’s values and true beliefs. (It sounds like they may have been reading some political science research on source cues, framing, and media effects!) What is more, the Chief Justice commented during oral argument on the flurry of political endorsements of same-sex marriage in recent weeks. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” he commented, in discussing the source of changing public opinion and the political clout of “the lobby supporting the enactment of same-sex marriage laws.” The bottom line here is that the justices are considering in their deliberations the political clout and power of proponents of same-sex marriage. For the Court, this implies a delicate balance. A powerful group can clearly overcome discrimination by itself and does not need the Court to meddle in legislation. At the same time, that powerful group might also be able to use its clout in a way that undermines the Court’s credibility and legitimacy.

Finally, it is particularly worth noting that the justices did not really spend much time (as they sometimes do in these types of cases) debating why Congress has not repealed DOMA. They debated what the motivation behind DOMA was, but they seemed to accept the reality that if they do not strike down the law, it is not going anywhere. They also asked the lawyers about the feasibility of striking down DOMA while not declaring that same-sex marriage must be the law in every state. How can the Court declare that denying marital benefits to same-sex couples is a violation of equal protection when the federal government does it and at the same time allow states to continue denying same-sex marriage to its residents? However, this was only a minor point, as I think the justices must realize that the second part of that question is a separate issue and can be set aside for the purposes of this case. However, their sensitivity to it makes me think they realize that striking down DOMA on equal protection grounds would guarantee they will have to decide the state question very soon.

What do these observations suggest? To me, they suggest that the Court is keenly aware of the larger political context in which it operates. It bears underscoring, public opinion on same-sex marriage has changed rapidly in American politics, and the positions held by elected officials are beginning to catch up. The pace at which U.S. Senators came out in support of marriage equality over the past week attests to the shift in opinion. Perhaps more remarkably, conservative leaders such as Karl Rove and Newt Gingrich have publicly commented that they know opinion is shifting and have forecasted a time when the Republican Party will no longer oppose same-sex marriage rights. The Supreme Court has in the past incurred “self-inflicted wounds” by impeding social progress, and it has an interest in avoiding those wounds. At the same time, the Court is also sensitive to instances in which it believes it has gotten out ahead of public opinion. In a time of rapidly changing opinion, this is something the Court will surely weigh carefully as the justices decide what to do in these two cases.

As my observations from oral argument suggest, I suspect the Court is going to seriously consider avoiding the larger policy issues in these cases. Kennedy commented during the Proposition 8 case that individuals denied the right to marry suffer “immediate legal harm.” That phrase is of considerable legal significance and may suggest that he’s willing to sidestep the standing issue to address the merits of the case (i.e., to make a decision on Proposition 8). During the DOMA arguments, the conservative members of the Court, led by Scalia, really pushed the procedural questions. There are two issues here. First, does anyone have standing to be suing? Who is the injured party? Second, is there a case or controversy (as required by Article III of the Constitution)? The government and the litigant agree on the outcome here. That the conservatives seem to want to focus attention on the procedural issues suggests they fear they’ll lose on the substantive question. However, on the merits of the case, the three leading conservatives – Scalia, Alito and Thomas – were largely silent. John Roberts wanted to frame the case as one about federalism, though the other five justices wanted to frame the case as an equal protection issue. (Note, Ben Lauderdale and I argued last December that a federalism frame would be good for the conservatives.) Thus, if five justices can agree on the merits of the case, then they are likely to accept procedural difficulties and decide the case. I’ll expect Scalia and Thomas to be arguing in this week’s conference among the justices that this case should not be decided, while the liberals will be trying to convince Kennedy that there is an important equal protection claim here that needs to be resolved.

At the end of the day, though, we’re trying to forecast the outcomes of two cases. In just a few short months, we’ll know the answer for sure. And, we’ll never know for sure if the particular account I’ve proposed is actually what happened. All we can do now is wait and speculate.

5 Responses to Heard through the Marble

  1. Baumerton March 28, 2013 at 11:23 am #

    SCOTUS is , of course, a political body. How could it be anything else ?

    Its output is always sensitive to political winds… and is ultimately arbitrary and subjective, despite the theatrical trappings of majesty and medieval clerical gowns. The ‘Justices’ are politicians, appointed by & chosen from the same cultural/political class as Congressmen & Presidents.

    Politicians are Politicians — and sensitive to politics.

    The spectacular prominence of a faulty constitutional theory granting SCOTUS a virtual monopoly in American constitutional law… has unjustly bestowed SCOTUS politicians with vast conclusive authority to freely determine the meaning of all constitutional provisions. This bizarre theory has become so pervasive that most everyone now regards SCOTUS as the primary translator of our Constitutional text. This theme is endlessly echoed in scholarly books/articles/blogs, law school training, in political science education, in the councils of government, in the media, and even in the streets… as all eagerly await the current robed-politicians to examine the latest judicial chicken-entrails and proclaim their divined rulings. But the Republic did not start out this way.

    • Tom March 28, 2013 at 1:27 pm #

      I disagree that the idea that the Court has final say on constitutional meaning is a “theme endlessly echoed” in either the political science literature or in the literature on constitutional theory. Political scientists studying judicial politics have been engaged in an extensive debate about the consequences of constitutional back-and-forth for about 70 years. Scholars writing in the 1950s, for example, were concerned with what happens when different branches have different interpretations of the Constitution. Scholars writing as recently as the past few years (including myself) have worked with so-called “separation-of-powers” models and other theories of Court-Congress interactions, specifically examining the effects of congressional power on judicial decision-making.

      In constitutional theory, “departmentalism” has been an important topic for some time, as scholars have advanced normative and positive arguments about the role of constitutional interpretation outside of the courts.

      Whether an institution’s deference to judicial interpretations of the Constitution constitutes an unjustified bestowing of interpretive power is a mater of debate, also which has been the subject of considerable research in the legal academy and political science. As far as popular dialogue and opinion, I would note that public opinion on this matter has shifted back and forth over time. One of the earliest Gallup polls (conducting during the New Deal) found great support for placing constitutional interpretation in the hands of Congress, and similar patterns can be found in the 1980s.

    • Wonks Anonymous March 28, 2013 at 3:40 pm #

      Sounds like Michael Stokes Paulsen’s “Irrepressible Myth of Marbury v Madison”.

  2. Thomas March 28, 2013 at 12:51 pm #

    I would quibble with two pieces of this:

    CJ Roberts exchange with Kaplan on the question of politics was a nifty rhetorical play by the CJ, meant to extract either a concession that public opinion hadn’t changed, or that it had, due to the political influence of the affected group. (The first cuts against the equal protection argument’s reliance on changing opinions, the second against the level of scrutiny.) Kaplan refused to be trapped, but not particularly persuasively. I expect we’ll hear echoes of this exchange in whatever Roberts writes.

    I do not believe that the question of whether DOMA can be set aside under an equal protection analysis without setting aside all state laws is a minor issue. It was quite clear that CJ Roberts was focused on federalism issues, but his hypotheticals resulted in each lawyer agreeing that there was no federalism issue. He was pushinig clearly away from federalism, toward an equal protection result. To the extent we’re guessing at motivations, it would seem he wants Kennedy to focus only on the piece that makes him most uncomfortable.

  3. Margo Schulter March 30, 2013 at 7:10 pm #

    If SCOTUS wishes to strike Section 3 of DOMA without
    reaching the question state bars against same-sex marriage
    under the Equal Protection Clause, then the arguments do
    suggest a possible strategy which could combine equal
    protection with an element of federalism. In striking
    Section 3 of DOMA, the Court could focus both on the
    invalid legislative purpose of expressing “moral
    disapproval” of homosexuals, ably documented by Justice
    Kagan when she quoted from the House Judiciary Committee
    report on DOMA; and on the attenuated interest of Congress
    in regulating marriage, traditionally within the police
    power of the States. Under _Romer_ (1996) and _Lawrence_
    (2003), the Court might find that Section 3 of DOMA fails
    even without any explicitly heightened level of scrutiny,
    especially given the attenuated effect of federal
    legislation on family law questions normally left to the

    In contrast, under this analysis, state legislation
    regulating might enjoy a greater presumption of validity,
    arguably requiring more legislative experience and social
    science data, or possibly a heightened level of scrutiny in
    applying the equal protection test (such as that which now
    applies to gender distinctions), in order to overcome this
    presumption. As the City and County of San Francisco argued
    in its Brief in Opposition to certiorari urging the Court
    not to take the case in the first place, and Justices
    Kennedy and Sotomayor hinted in some of their questions,
    more “percolation” of the equal protection question in
    state and lower federal courts could help the Supreme Court
    in making a better informed decision at some time in the
    future. Either a finding of lack of standing, or a
    dismissal of the case as improvidently granted (DIG), would
    avoid any Supreme Court precedent on the merits while also
    leaving in place a lower federal court decision that
    Proposition 8 is unconstitutional. A DIG might be more
    politique if at least of the four or more justices who
    voted to hear the case now concurred in the dismissal.