Category: Supreme Court

Posner
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Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” – David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”

______________________

The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

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The Most Important Statutory Case?

Today I was thinking that King could be the most important statutory case decided by the Supreme Court.  How many other candidates are there?  The early cases under the Sherman Anti-Trust Act come to mind (Northern SecuritiesStandard Oil), and maybe one or two involving the Civil Rights Act of 1964.  Anything else?

UPDATE:  I suppose Ex Parte McCardle was more important.

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King v. Burwell

The blockbuster case of this Term (depending on the timing of the next cert. petition on same-sex marriage) is the case granted today that could cripple the Affordable Care Act.  I’ve always thought that the Supreme Court would take this (nice try–DC Circuit en banc) and that there is a good chance that the Administration would lose there.

What about the question of who should win?  The most plausible explanation of the contested language is that Congress did not intend to limit the subsidies to state exchanges.  Why does the statute say that then?  Because Scott Brown was elected in a special election to fill Ted Kennedy’s seat.  This deprived Democrats of their filibuster-proof majority in the Senate.  Thus, the final bill was passed in the Senate through the reconciliation process (which only requires a simple majority).  There was no conference committee or the usual procedures to fix errors in the bill.

What should a court do about this?  The language about state exchanges is not ambiguous.  The problem is that it is inconsistent with the rest of the statute, the intent of Congress, and could lead to an absurd result.  Supporters of the Act are trying to make that an ambiguity argument because that gets the IRS interpretation Chevron deference.  I am  skeptical about this argument.  And normally if the text is unambiguous then you do not look at the legislative intent or anything other than the possibility of an “absurd result.”  So this may end up being the point on which King turns.

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The (Non)Finality of Supreme Court Opinions

I finally got around to reading Richard Lazarus’s draft paper (forthcoming in Harvard Law Review) on how the Justices revise their opinions after they are issued and before they are officially published.  This is well worth your time.  Lazarus identifies a significant problem, worked hard to identify opinion edits that are not made in a transparent process, and makes some sound suggestions for reform.  I also learned a lot about the role of the Supreme Court Reporter, which I’ve always found a bit obscure, and learned that there is a formal process to point out errors in opinions.

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Predicting the Supreme Court Using Artificial Intelligence

Predicting Supreme Court Outcomes Using AI ?

Is it possible to predict the outcomes of legal cases – such as Supreme Court decisions – using Artificial Intelligence (AI)?  I recently had the opportunity to consider this point at a talk that I gave entitled “Machine Learning Within Law” at Stanford.

At that talk, I discussed a very interesting new paper entitled “Predicting the Behavior of the Supreme Court of the United States” by Prof. Dan Katz (Mich. State Law),  Data Scientist Michael Bommarito,  and Prof. Josh Blackman (South Texas Law).

Katz, Bommarito, and Blackman used machine-learning AI techniques to build a computer model capable of predicting the outcomes of arbitrary Supreme Court cases with an accuracy of about 70% – a strong result.  This post will discuss their approach and why it was an improvement over prior research in this area.

Quantitative Legal Prediction

The general idea behind such approaches is to use computer-based analysis of existing data (e.g. data on past Supreme Court cases) in order to predict the outcome of future legal events (e.g. pending cases).  The approach to using data to inform legal predictions (as opposed to pure lawyerly analysis) has been largely championed by Prof. Katz – something that he has dubbed  “Quantitative Legal Prediction” in recent work.

Legal prediction is an important function that attorneys perform for clients. Attorneys predict all sorts of things, ranging from the likely outcome of pending cases, risk of liability, and estimates about damages, to the importance of various laws and facts to legal decision-makers.   Attorneys use a mix of legal training, problem-solving, analysis, experience, analogical reasoning, common sense, intuition and other higher order cognitive skills to engage in sophisticated, informed assessments of likely outcomes.

By contrast, the quantitative approach takes a different tack:  using analysis of data employing advanced algorithms to produce data-driven predictions of legal outcomes (instead of, or in addition to traditional legal analysis).  These data-driven predictions can provide additional information to support attorney analysis.

Predictive Analytics: Finding Useful Patterns in Data

Outside of law, predictive analytics has widely applied to produce automated, predictions in multiple contexts.   Real world examples of predictive analytics include: the automated product recommendations made by Amazon.com, movie recommendations made by Netflix, and the search terms automatically suggested by Google.

Scanning Data for Patterns that Are Predictive of Future Outcomes

In general, predictive analytics approaches use advanced computer algorithms to scan large amounts of data to detect patterns.  These patterns can be often used to make intelligent, useful predictions about never-before-seen future data.  Many of these approaches employ “Machine Learning” techniques to engage in prediction. (I have written about some of the ways that machine-learning based analytical approaches are starting to be used within law and the legal system here).

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RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).

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7 Member Supreme Court Votes 4-1 to Suspend One of its Own

This is ugly.  PA Supreme Court has voted to suspend one of its members for various infractions, including the dissemination of pornographic emails from work computers.  The suspension order issued per curium, but apparently only attracted the votes of 4 of 7 possible justices.  One justice, dissenting, would have sent the matter to a judicial conduct board. The suspended justice didn’t vote, and neither did a justice who just accused the suspended justice of trying to blackmail him over yet more pornographic emails.  One of the four votes comes from a justice appointed by Pennsylvania’s governor, to replace another justice who had been suspended after being indicted.

Still with me? Here’s where the fun starts.  Pennsylvania’s Chief Justice, who has been long-involved in a heated fight with the newly suspended justice over control over Philadelphia’s court system, concurred in the per curium opinion. His “concurring statement,” destined for the headlines, contains the following astonishing paragraph:

wowThat, friends, is what it means to vent your spleen.

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“Unpublished” Supreme Court Orders

Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation.  This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari.  What in blazes is going on here, they ask?  Doesn’t the Court owe us some explanation?

I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations.  One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument).  I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary.  Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.

Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception.  Right now only a dissenter can open a window into what goes on with respect to these important choices.  I’m not sure that is always good enough.

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Marian Anderson & Justice Black, April 9, 1939

Harold Ickes & Marian Anderson

Harold Ickes & Marian Anderson

I was just watching a WETA segment on our national parks when I came upon the Marian Anderson story and how the Daughters of the American Revolution refused to let her perform at Constitution Hall, which they owned.

Upset by the incident, Eleanor Roosevelt urged Harold Ickes (the former president of the Chicago NAACP & then Secretary of the Interior) to arrange for the opera singer to perform at the Lincoln Memorial. Ms. Anderson performed there on Easter Sunday, April 9, 1939, to a crowd of 75,000 admiring onlookers. The event was also broadcast on national radio.

Of course, all of this and more are well known. What is far less known is that invitations were sent out to the all of the Justices of the Supreme Court.  (See Gerald T. Dunne, Hugo Black & the Judicial Revolution 304 (1977)). One Justice accepted, which brings me back to my public television story.

Justice Hugo Black, 9 April 1939

Justice Hugo Black, 9 April 1939

If you go to the YouTube clip of the Anderson concert, you will see Justice Black in the audience (1 minute & 19 seconds into it).

By that time in 1939 Justice Black had been on the Court for some 20 months — this 15 years before Brown. Most likely, word of Justice Hugo Black’s solo appearance made its way to Alabama, his home state. And yet, he was there (see pic) and the newsreels captured it all, too.

For an account of the concert and its historical significance, see Raymond Arsenault, The Sound of Freedom: Marian Anderson, the Lincoln Memorial, & the Concert that Awakened America (2009).