Friday, October 03, 2014

Does It Matter Which Same-Sex Marriage Case(s) the Supreme Court Takes?

by Michael Dorf

The big news from the Supreme Court yesterday was a piece of non-news: The Court granted review in a number of cases but took no action with respect to any of the certiorari petitions presenting the question whether there is a constitutional right to same-sex marriage (SSM). I continue to think that it is extremely likely that the Court will grant review in one or more of these cases--and then "hold" the remaining cases pending resolution of the case(s) it grants. The Court could grant as early as next week or some time in the coming few months. For now, speculation centers around which case will end up as the lead case.  Does it matter?

If the question is whether the SCOTUS ruling will depend on which case the Court grants, the answer is maybe just a little. The challenged state laws vary from each other, and so arguments available in one case may be unavailable in another.  For example, most but not all states permit same-sex couples to adopt children; if the Court takes a case from a state that permits same-sex couples to adopt but not to marry, then the state will have a somewhat more difficult time advancing the "accidental procreation" argument for its SSM ban than would a different state that forbids both, due to the response made by Judge Posner in the Indiana and Wisconsin cases (as I explained here).

Nonetheless, it is difficult to imagine that such subtleties will make a difference in the bottom line: The Court will either recognize a right to same-sex marriage that applies against all states or it will not. At most, the subtle variations in the different challenged laws will affect the writing of the opinions.

What seems to be at stake in the decision of which case(s) to grant, therefore, is which attorney will have the honor of arguing for (and probably winning) the right to marriage equality. As noted in a NY Times story last month, various high-profile Supreme Court litigators are jockeying for that position. Because the lead attorney in each of those cases is a highly experienced and skilled Supreme Court advocate, and because, regardless of who stands at the podium, the arguments in play will be the same, it really doesn't matter to the outcome of the case who gets the honor of arguing it. Obviously, it matters to the respective lawyers. Each one wants to be the attorney who won the right to same-sex marriage, but this seems to me to be less of a big deal than the attorneys apparently think.

Try a thought experiment. Think about a major victory for civil rights or civil liberties in the Supreme Court. Now ask whether you can recall the lawyer who won the case. I can only come up with a pretty small handful, and even some of those probably shouldn't count.

For example, people who care about US constitutional law generally know that Thurgood Marshall argued for the plaintiffs in Brown v. Board of Education and that Ruth Bader Ginsburg argued for the Court in some of the leading sex discrimination cases, like Frontiero v. Richardson. But that probably has less to do with the fact that they were the lawyers to stand up in Court in the particular cases than that they were the chief architects of the respective legal strategies for attacking Jim Crow and de jure sex discrimination. Judged by this standard, regardless of who argues the case before the Supreme Court, Evan Wolfson or Mary Bonauto would be the leading candidate for the moniker "Thurgood Marshall or Ruth Bader Ginsburg of Marriage Equality."

Beyond Marshall and Ginsburg, it's difficult to name a lawyer who is identified as the lawyer for some famous case. Who argued for the Lovings in Loving v. Virginia? [Answer: Philip J. Hirschop]. Who argued for the plaintiffs in Reynolds v. Sims? [Answer: Richard Flowers and Charles Morgan, Jr.]. I didn't know those answers either, until I looked them up. And that's not surprising. In our legal culture, we generally identify a case with the Justice who wrote the majority opinion. Casebooks and online versions of cases usually omit the attorneys entirely.

My point isn't that generally unknown attorneys are responsible for arguing all or even most of the "big" cases. Much of the time, if you think of a big case and look up the attorney, it's someone famous. E.g., Herbert Wechsler argued NY Times v. Sullivan for the Times; Bill Kunstler (with David Cole on the brief) argued Texas v. Johnson for Johnson. But like Marshall and Ginsburg, these are lawyers who are well known for a body of work, rather than any particular case, even a very big one.

Indeed, the only clear exception that occurs to me--the only attorney who became well-known because of the role the attorney played in arguing a big case before the Supreme Court--is Sarah Weddington, who argued Roe v. Wade. But I think it's fair to say that Weddington deliberately built her career on her role in that case. I suppose it's possible that other enterprising attorneys could build their careers on the basis of the lightning strike of being the one to argue what turns out to be a landmark SCOTUS case--but it hasn't happened so far.

Meanwhile, there is downside risk for the lawyer who ends up with the lead role for the challengers. Given that most observers expect the Court to recognize a right to SSM, should the lawyer arguing for the plaintiffs stumble and lose, he or she will end up shouldering considerable blame. Indeed, even if the lawyer ends up winning the case, a poor performance in an extremely prominent case could end up harming his or her overall reputation.

Finally, I'll note that no one should want the job of defending the state laws. The cert petitions on file at the SCOTUS list three sorts of lawyers: state lawyers; private practice lawyers; and lawyers with the religious conservative Alliance Defending Freedom (ADF). I suppose that a state AG, SG, or other lawyer would be able to argue that the Court ought to defer to state law without history judging him or her too harshly. After all, a state lawyer defending a challenged law can be said to be just doing his or her job. That's a tepid defense, of course. Some state government officials have chosen not to appeal judgments invaidating state laws banning SSM, and any state lawyer who argues in defense of such a ban is at least somewhat complicit in the law.

Even so, a regular state lawyer would not go down in history as a villain in the way that a non-state lawyer who seeks out the case would. This is probably not an issue for the ADF lawyers, who believe with (literal) religious conviction that they are on the right side of the issue, even if they are on the wrong side of history. But the private firm lawyers are making a dangerous gamble that they will get a PR boost for their business from the prominent defense of a state law banning SSM. That may be true in the short run, but in the long run they may live to regret the gamble.

Enthusiastically volunteering to argue the wrong side in Brown v. Board forever tarnished John W. Davis's legacy. Thus far, no lawyer remotely close to Davis in stature has publicly announced signing on to defend the state laws. Perhaps after the Court grants, Paul Clement will be enlisted to go down swinging. And Clement may already think he has nothing to lose, having (unsuccessfully) defended the Defense of Marriage Act in the Windsor case. If so, I think he would be making a mistake. Windsor was an important case but it will be replaced as the landmark marriage equality case by whatever ruling the Court issues with respect to the state bans. By sitting this one out, Clement has a chance at rendering Windsor a very unpleasant footnote in an otherwise distinguished (albeit highly conservative) career. If he (or someone of equal stature) jumps in, he could destroy his legacy.


Hashim said...

While policy-based opposition to same-sex marriage may well be on the wrong side of history given current demographics, it seems extremely unlikely that rejection of a constitutional right to same-sex marriage will be on the wrong side of history any time soon. No plausible conception of originalism would recognize a constitutional right to same-sex marrigae, and there's no evidence whatsoever that originalism as a methodological enterprise is on an inevitable decline, either in the courts specifically or among lawyers and citizens more generally.

Accordingly, the "legacy" of a conservative lawyer who defended traditional marriage in these cases would be tarnished only among those who either reject originalism or can't separate law from policy. And no self-respecting conservative lawyer would worry much about what such people thought of him in terms of his "legacy."

Of course, current business considerations are an entirely different matter from one's "legacy" as a lawyer -- clients aren't constitutional scholars, and could very well punish lawyers for taking unpopular positions, wholly apart from their legal merit.

Joe said...

A "plausible" conception of originalism is that the 14A was ratified to deal with class based discrimination and taking everything as a whole same sex marriage bans are a form of it.

There is "evidence" that strict originalism, at any rate, though quite honestly not quite sure what that means, is not accepted by the mainstream. Kennedy isn't one and he probably reflects the median. Roberts is not a strict originalist either.

The use of hyperbole is not necessary. The case against same sex marriage being recognized by the USSC is not so bad that it is outside the realm of good taste or anything for a conservative lawyer to at least provide their best argument.

OTOH, it might be a problem if they try to argue coverture can be enforced by the state. That is, "traditional marriage" of a different sort.


I figure Paul Clement would be a logical choice for the "anti" side here. As to remembering, who remember advocates? For instance, who was Sarah Weddington's co-counsel? If she wasn't so young, would we even remember her? Also, listening to the argument, there was more than one person arguing in Loving even.

Finally, I think they should take a case or cases that covers all the bases. It probably doesn't matter too much as you say in the end. I think there is a credible chance a particularly strict law (e.g., banning even "marriage like" institutions) would get an extra vote by Roberts saying at the very least a state can't go THAT far.

Paul Scott said...

Whomever wins will increase their billing rate. I think that is why it matters. ;)

Joe said...

Linda Greenhouse cites the author of the OP in her latest column. Links to this article:

Justin said...


I think proof of your point would have been made simply by the fact that Marshall was just one of several lawyers who argued for Brown's position in the Brown cases; indeed, Marshall argued Briggs and Davis, not Brown.

On the counter, H. Albert Young was not discredited for going toe to toe with Greenberg in the Brown cases. And since Clement has not shown the do we say, zeal, as Davis, I doubt he'll suffer the same reputational injury.


Do you think that's really accurate in light of how history looks upon then-justifiable decisions such as Dred Scott and Plessy?

The best thing that can be said about these cases is history doesn't really remember much who argued them. I think anyone making your argument 100 years from now will be doing so as an attempt to indict originalism, much as how originalism is still struggling with being inconsistent with decency in decisions ranging from Plessy to Loving. Indeed, you will have a cottage industry of future Volokh Conspiracy types who will be trying to prove that an originalist interpretation of the Constitution actually protected gay marriage.