HLS faculty weigh in on recent Supreme Court decisions

Supreme Court justices have malleable view of democracy

An op-ed by Michael Klarman. By a narrow 5-to-4 majority, the Supreme Court in Obergefell v. Hodges has ruled that the US Constitution requires states to permit gay and lesbian couples to marry. The decision raises many interesting questions about the court and its role in American society: the extraordinary influence of one man (Justice Anthony Kennedy) on the court’s decision-making, the malleability of constitutional interpretation in the face of rapidly shifting social norms, and the justices’ willingness/reluctance to advance beyond public opinion in their constitutional interpretations. Yet the most interesting aspect of Obergefell may be the way the conservative justices chose to frame the issue in their four separate dissents: Each criticized the court’s refusal to defer to democratic decision making on the issue of gay marriage.

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Kennedy Key to Same-Sex Marriage Decision, Law Profs Say

Following the Supreme Court’s landmark decision Friday that same-sex couples have a constitutional right to marriage, several Harvard Law School professors said Justice Anthony M. Kennedy, who authored the majority opinion, played an extraordinary role in advancing the cause.

“The majority opinion by Justice Kennedy was a triumph of reason and passion alike,” Law School professor and former Supreme Court clerk Laurence H. Tribe ’62 wrote in an email. … Law School professor Michael J. Klarman wrote that Friday’s decision “confirms the extraordinary influence” of Kennedy, adding that he believes Kennedy is “the most powerful justice in history.” … Law School professor Richard H. Fallon agreed that people opposed to same-sex marriage may be angry about the verdict, they are unlikely to act politically, given a shift in public support for same-sex marriage in recent years.


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Happy about the Supreme Court’s ACA decision? Thank a law professor

An op-ed by Rachel Sachs, Academic Fellow. The core of the Affordable Care Act (ACA) has now survived its second trip to the Supreme Court…Three years ago, it was clear from both the oral argument and opinions that the justices did not fully appreciate the health policy consequences of their ruling. But in the oral argument in King v Burwell, the justices displayed a much more sophisticated understanding of the law. And, happily, that understanding is reflected in Chief Justice Roberts’ majority opinion – in part thanks to law professors.

Continue Reading at The Conversation »

‘One for the ages’

It was the moment when gay marriage nationally went from being a cause to a fact. “This is one for the ages,” wrote Noah Feldman, Harvard’s Felix Frankfurter Professor of Law…Michael Klarman, Harvard’s Kirkland & Ellis Professor of Law and author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (2012), called the ruling “the Brown v. Board of the gays rights movement. It’s obviously a great day for gay rights and for those who favor a more equal, inclusive America.”

Continue Reading at Harvard Gazette »

Gay Marriage Shows Court at Its Best

An op-ed by Cass Sunstein: In his powerful dissenting opinion from Friday’s same-sex marriage decision, Chief Justice John Roberts asks an excellent question: “Just who do we think we are?” That question deserves an answer. If we look at the arc of the court’s history, we might be able to offer one. Contrary to appearances, the court usually pays attention to an actual or emerging moral consensus, certainly with respect to fundamental rights. It follows public opinion; it does not lead it. When Justice Anthony Kennedy wrote that the Constitution protects “the right of all persons to enjoy liberty as we learn its meaning,” he didn’t mean the justices consult philosophical texts or make things up. He meant to refer instead to an emphatically social process, in which the justices learn from their fellow citizens.

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Supreme Court’s Obamacare decision is a victory for all of us

An op-ed by Laurence Tribe: The Supreme Court has rebuffed yet another attempt to destroy the Affordable Care Act. In King v. Burwell, the challengers argued not that the Constitution prohibited the ACA, but that the law’s own text made one of its key reforms ineffective and indeed perverse. Applying a strong dose of common sense to reject this argument, Chief Justice John Roberts, writing for a six-justice majority, handed the people and the Congress that represents them a resounding victory.

Continue Reading at Boston Globe »

A Gay-Rights Decision for the Ages

An op-ed by Noah FeldmanThis one is for the ages. Justice Anthony Kennedy’s opinion for the U.S. Supreme Court announcing a right to gay marriage in Obergefell v. Hodges will take its place alongside Brown v. Board of Education and Loving v. Virginia in the pantheon of great liberal opinions. The only tragic contrast with those landmarks in the history of equality is that both of those were decided unanimously. Friday’s gay-rights opinion went 5-4, with each of the court’s conservative justices writing a dissent of his own. Eventually, legal equality for gay people will seem just as automatic and natural as legal equality for blacks. But history will recall that when decided, Obergefell didn’t reflect national consensus, much less the consensus of the court itself.

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The Chevron Sidestep: Professor Freeman on King v. Burwell

A commentary by Jody Freeman: Today, the Supreme Court held that federal subsidies to help Americans buy health insurance under the Affordable Care Act are available in every State, whether the States themselves or the Federal government sets up the health care exchanges. This is a major victory for the Obama administration, which had adopted that view of the law in an Internal Revenue Service rule. Unless subsidies are available nationwide, the Act’s scheme does not really work, because insurance would become more, not less expensive, and premiums would soar, undermining the core purpose of the law, which is to insure every American.

Yet in finding for the Obama administration, the Court nevertheless struck a blow against the executive branch. The Chief Justice’s majority opinion showed zero deference to the administration’s interpretation of the law. The Court construed the Act for itself.

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The Catch in the Obamacare Opinion

An op-ed by Cass Sunstein. Thursday’s Supreme Court decision to uphold a pivotal regulation under the Affordable Care Act is, of course, a tremendous victory for the Barack Obama administration. But it also establishes a principle that’s likely to haunt future presidents…The underlying question is which branch of government has the power to interpret ambiguous legislation. Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, the executive branch has been allowed to adopt its own interpretations, as long as they’re reasonable. And because so many laws are ambiguous, this “Chevron principle” has given great authority to executive agencies and the president.

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Housing Case Redefines Discrimination

An op-ed by Noah Feldman: Justice Anthony Kennedy continues to surprise. The swing justice wrote an important liberal opinion, holding Thursday for a 5-4 courtthat the Fair Housing Act prohibits not only intentional discrimination, but also policy decisions that discriminate by having a disparate impact on minorities. The Reagan appointee occasionally shows vestiges of his one-time conservatism, as in one half of his split votes in two recent death penalty cases. But as his vote in the Affordable Care Act case suggests, he’s increasingly becoming a confirmed liberal vote. When (and if) he declares a constitutional right to gay marriage in the next few days, he’ll enter the pantheon of great justices — as a liberal.


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Scalia’s View Prevails in Gun-Crimes Case

An op-ed by Noah FeldmanJustice Antonin Scalia thinks that finding a right to gay marriage in the due process clause of the Constitution amounts to a “judicial Putsch.” But on the very same day the gay-rights opinion was announced, Scalia showed what he thinks the due process clause is actually for. He wrote the opinion for the U.S. Supreme Court striking down the clause of the federal law that increases the punishment for felons found in possession of a gun if they have been convicted of three or more violent felonies. The law defines a violent felony as one that “involves conduct that presents a serious potential risk of physical injury to another.” This language, Scalia found, is unconstitutionally vague — and therefore violates due process.

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Congress’s Sloppiness Saves Obamacare

An op-ed by Noah Feldman. Chief Justice John Roberts just saved the Affordable Care Act — again. If you’re feeling déjà vu, you’re not alone. As he did in 2012, Roberts defected from his conservative colleagues and joined the court’s liberals in refusing to send Obamacare into a death-spiral. In King v. Burwell, Roberts has now cemented his reputation as a true believer in judicial restraint — perhaps as the only justice who still believes in it. And this time, he was given cover by Justice Anthony Kennedy, making the vote 6-3.

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