Judicial Transparency and the Tenth Anniversary of Obergefell v. Hodges

I was pleased and honored last week to be part of a symposium at Mercer University School of Law celebrating the tenth anniversary of Obergefell v. Hodges, the case that required states to recognize same-sex marriages. My panel included attorney Jon Davidson, who was part of the litigation team behind Obergfell, as well as Suzanne Goldberg, a clinical law professor at Columbia Law School who has been a major advocate in the movement to gain equality for the LGBTQ community.

I began my remarks by mentioning that over the last ten months when speaking at conferences or to the media, I have been unable to express any optimism about the future of our country, the Supreme Court, or the rule of law. My social media nickname, “Professor Doom and “Gloom,” has been quite fitting over this time. 

But on this day, I was able to stand up and say, for the first time in a long time, that I had something semi-optimistic to report. I predicted that the Supreme Court would not overturn the holding of Obergefell, and I'm glad to say that my co-panelists agreed with that conclusion. None of us were taking for granted the possibility that such a reversal could not happen, and it is appropriate for interest groups to keep working to make sure that the decision is not overturned, but we all agreed it was extremely unlikely that Obergfell would be reversed.

Now for the doom and gloom. Although I think the rights of same-sex couples to marry will continue, I did lament that the extreme transparency of Justice Kennedy's majority opinion in Obergfell is tragically a thing of the past. Although Kennedy's majority opinion (there were no concurrences) has been heavily criticized by legal formalists and originalists as not being specific about the level of scrutiny that the case applied and for stressing values like human dignity, I think that Kennedy's opinion is a model of judicial honesty. He told us exactly why he was ruling the way he did and didn't hide the fundamental values behind his opinion in a cloak of legalisms, formalisms, and the often misleading law-office history that so permeate Supreme Court opinions written by Republican justices today.

I miss the transparency that Justice Kennedy often brought to his opinions even when I disagreed with his conclusions (which I often did). Because federal judges have life tenure and are called upon to interpret an imprecise document while deciding our country’s most important cases, and because reasonable people can often disagree about the correct conclusions in those cases, perhaps the most important thing we can ask our judges and justices to do is to be honest about the reasons supporting  their decisions. 

Important Republican-appointed judges and justices who came of age before the birth of the Federalist Society in 1982 include Kennedy, Sandra Day O'Connor, and Judge Richard Posner. It could be argued that Kennedy, O'Connor, and Posner are among the most important jurists of the last 50 years. The difference between the GOP justices and judges who predated Fed Soc and those who came afterward is the awful obsession by Republican-appointed jurists in a post-Fed Soc world to pretend that originalism, textualism, and other "isms," lead them to the decisions they reach, when it is their personal values that matter in constitutional cases. That lack of transparency is a major problem for the rule of law.

Kennedy, O'Connor, and Posner, love them or hate them, prioritized explaining in truly human, non-lawyer terms the rationales for their decisions. For example, Justice O'Connor's opinion in Grutter v. Bollinger, now reversed, explained openly her test for affirmative action cases--a test I strongly disagreed with--but one that was grounded in real-life conditions and present-day considerations (as she saw them). Posner, of course, had little empathy for doctrine and obsessively focused on facts, circumstances, and consequences (the foundations of legal pragmatism). Rarely did these three giants claim that prior legal rules or history dictated their conclusions. That transparency is laudable.

Kennedy's opinion in Obergefell  is a classic example of what I am talking about. The structure of the opinion was essentially: 1) marriage is really important; 2) the Court had an obligation to identify those fundamental rights that judges should protect, and while history and tradition are relevant, they do not exhaust that inquiry; and 3) same-sex couples deserve to reap the same benefits of state-sanctioned marriages as opposite-sex couples. To make my point, I have to quote at length from the opinion:

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, has not been reduced to any formula. Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation....It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right

Agree or disagree, Justice Kennedy tells us exactly why he feels the Constitution requires extending marriage to same-sex couples. 

Judge Posner wrote a similar opinion for the Seventh Circuit in the Hively decision that held, prior to the landmark Bostock case, that Title VII forbids discrimination against LGBTQ individuals. Judge Posner admitted that there are occasions where old statutes with imprecise language need to be updated by judges if relevant societal conditions substantially change. In this case, the phrase "because of sex," means something different today than it did when the law was first enacted and, of course, LGBTQ folks are seen in a very different light today than decades ago. 

Again, agree or disagree, at least Posner's method and value judgments are on the surface of the opinion, not hidden behind unpersuasive legal formalisms. When the Supreme Court decided Bostock, Justice Gorsuch pretended he could resolve the controversy based solely on textual analysis, which the dissenting opinions showed was clearly not the case. Values, not text alone, drove all the opinions, but only Judge Posner's was transparent about it.

The lack of transparency among post-Fed Soc GOP judges can be seen by looking at the last few sentences of Chief Justice Roberts's bitter dissent in Obergefell and comparing them to other decisions reached by the Court's Republican justices. Roberts ended his dissent this way, after arguing that text, history, and tradition did not justify judicial creation of a right to same-sex marriage:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

And yet, Chief Justice Roberts has signed on to the following legal rules that have dramatically changed this country and, as I have written before, had no basis in text, tradition, or history:

1) Color-blindness prevents affirmative action;

2) Equal-state sovereignty, which the Court used to destroy the Voting Rights Act's preclearance requirements;

3) Presidential immunity from prosecution for crimes committed in office after a president leaves office;

4) A rule that Congress can't limit the President's ability to fire federal officers;

5) A rule that Congress cannot commandeer state officers when Congress is using its enumerated powers;

6) A rule that the Free Exercise Clause requires states to financially help pervasively religious private schools if states financially help secular private schools;

7) An understanding of the Second Amendment that protects an individual right to own guns separate from militia service.

None of those rules are in the Constitution's text or supported by history or tradition, and all of them are cosistent with the GOP's agenda and conservative values. Yet in all those cases Roberts joined with other Republican justices, not only to create the rules, but to hide the value judgments they used to reach their conclusions. The Constitution had "nothing to do" with those decisions in the sense Roberts used the phrase in Obergefell.

I lament our post Fed-Soc world where Republican judges and justices have to pretend that history, text, and tradition are the only legitimate drivers of their constitutional opinions, when in fact it is their politics and values that best explain the results they reach. Give me the non-doctrinal but honest musings of Justices O'Connor and Kennedy, and Judge Posner any day over the misleading and dishonest opinions written by today's Republican justices and judges. 

Justice Kennedy's opinion in Obergefell, for all the scholarly criticism it has received from Fed Soc-aligned legal scholars and judges, might be the last truly honest decision the Supreme Court has issued in important constitutional law cases. It is therefore appropriate to honor the decision on its tenth anniversary.

-- Eric Segall