Obergefell v. Hodges

  • December 12, 2017
    Guest Post

    by Steve Sanders, Associate Professor, Indiana University Maurer School of Law

    Texas Supreme Court Justice Don Willett, who is best known for his relentlessly folksy Twitter feed and who calls himself the “Tweeter Laureate of Texas,” is almost certain to be confirmed soon by the U.S. Senate to a seat on the Fifth Circuit U.S. Court of Appeals. Advocacy groups and Democratic senators have raised concerns about Willett’s judicial temperament and possible biases, including his attitudes toward LGBT equality. One basic concern should be Willett’s ability to read and faithfully apply U.S. Supreme Court precedent.

  • July 8, 2015

    by Caroline Cox

    David A. Graham writes for The Atlantic about a new study that reveals that most states do not have any black elected prosecutors, a fact that likely contributes to racial gaps in justice.

    At Salon, Matthew Rozsa explains the truth behind the most significant myths about the death penalty.

    Michelle Chen considers at The Nation how the new overtime rules will benefit the large number of “overworked and underpaid” in America’s workforce.

    At Slate, Andrew Kahn examines the different meanings of “dignity” used by Justice Thomas and Justice Kennedy in the marriage equality case.

    Emily Badger reports for The Washington Post on the White House’s new rules aimed at repairing the Fair Housing Act.

  • July 1, 2015

    by Caroline Cox

    Chris Weller writes at Business Insider about comments by Georgetown University law professor Paul Butler explaining how pride for the Confederate flag is “to be proud of a legacy of terrorism and violence.”

    At Slate, Leon Neyfakh considers whether bail, which allows the wealthy to walk free while the poor wait in jail, is unconstitutional.

    Marci Hamilton discusses at Hamilton and Griffin on Rights how the decision in Obergefell will affect government and religious institutions.

    At NPR, Nina Totenberg provides an overview in the Supreme Court’s opinions from the last day of the term.

    Moshe Marvit argues at Talking Points Memo that a new Supreme Court case – Friedrichs v. California Teachers’ Association – is a major threat to public sector unions.

  • June 30, 2015
    Guest Post

    by Sam Kleiner, a fellow at the Yale Law Information Society Project 

    With his landmark opinion in Obergefell v Hodges, Justice Anthony Kennedy cemented his legacy as a gay rights icon. “He will be remembered for these decisions perhaps more than any other,” said Camilla Taylor, counsel and director of Lambda Legal’s marriage project. What makes this all the more remarkable, is that Justice Kennedy wasn’t supposed to be a justice at all. He was Reagan’s more conciliatory choice, the one who was “popular with colleagues of all political persuasions,” after the failed nomination of the far more right-wing Robert Bork.

    The effort against Bork has been immortalized in Senator Edward Kennedy’s speech on “Robert Bork’s America.” "To Bork" has entered the American lexicon as a hyperbolic attack on a good person.

    The reality, however, is that Bork was outside the legal mainstream. Whereas Senator Kennedy led an effort to skewer Bork, the chairman of the Senate Judiciary Committee led a far more substantive critique of Bork’s extremism that proved pivotal in the fight over the nomination. That senator was Joseph Biden.

    Bork was nominated with impeccable credentials- a professor at Yale Law School and a Judge on the D.C. Circuit court of appeals. The Senate had traditionally questioned the qualifications of a nominee but an inquiry into their judicial philosophy had not been done in a full-throated manner. Bork, however, had built his academic career disparaging an array of civil rights cases and Biden thought it was necessary to dig in on what exactly this nominee’s views of the Constitution were and what he would do on the Court.

    While others wanted Biden to go after Bork’s personal life, he took the higher road. “When confronted with a request to subpoena Judge Bork’s video rental records in a search for possible pornography, Mr. Biden refused,” noted Jeff Rosen (then a Biden intern).

    Instead, Biden went into an in-depth hearing on Bork’s understanding of the Constitution. Biden, as Rosen noted, focused the “questioning on Judge Bork’s substantive views about the right to privacy." In 1965, the Court in Griswold had ruled that a law banning the use of contraceptives by a married couple was unconstitutional as a violation of the “right to marital privacy.” Professor Bork had built his career criticizing decisions like Griswold and Biden used the hearings as a way to highlight just how extreme Bork was.

    In the hearings, Biden, at some length, prodded Bork on his argument against Griswold. Bork gave “weak-kneed statements from a man known for verbal muscle,” as one historian notes.  Biden’s objective was not to disprove Bork’s views explicitly but he was able to discredit him in the court of public opinion. The strategy worked.

    The concern raised about Bork was that he had always been opposed to the development of new liberties and was unlikely to be a defender of liberty on the Court. “As one imagines the kinds of great new issues that might come before the court in the years ahead, there surely are reasons to fear that on these great issues, Judge Bork will not be there when it counts,” testified Bork’s Yale Law colleague Paul Gewirtz at a Biden-led hearing.

  • June 29, 2015

    by Caroline Cox

    At The New York Times, Adam Liptak reports that the Supreme Court has ruled the use of sedative midazolam in executions does not violate the Eighth Amendment.

    Robert Barnes reports for The Washington Post that the Supreme Court ruled 5-4 that independent commissions may draw electoral district lines.

    Mary L. Bonauto, member of the Board of Advisors of the ACS Boston Lawyer Chapter, explains the decades-long fight for marriage equality in The Boston Globe.

    At The Huffington Post, Geoffrey R. Stone considers the dissenters in the same-sex marriage decision and asserts that “the justices in the majority did precisely what the Constitution expects them to do.”

    Judge Richard Posner discusses at Slate two of the dissents in the Obergefell opinion, arguing that the Chief Justice’s dissent in particular reads as heartless.

    Andrew Koppelman argues at The New Republic that Chief Justice John Roberts’s previous calls for judicial restraint cannot be taken as sincere.