A Tribute to Judge Richard Cudahy

by J. Paul Oetken, U.S. District Judge for the Southern District of New York

Judge Richard D. Cudahy, who served for 36 years on the United States Court of Appeals for the Seventh Circuit, died last month at the age of 89. He was beloved by his family and friends, his colleagues, and his many law clerks. He was also admired as a brilliant and influential jurist whose opinions shaped the development of the law in myriad ways.

I served as one of Judge Cudahy’s law clerks from 1991 to 1992, and that year was one of the most rewarding and interesting of my career. The judge was not only a kind and generous boss; he was also a great teacher and mentor. We discussed every case in detail, and through that process I gained great insight into how he thought about law and justice.

Judge Cudahy’s approach to the law was humanistic and pragmatic; he was neither formalistic nor result-oriented. He cared deeply about the judicial craft, taking great care to write opinions that were well-reasoned and principled, while always being particularly sensitive to how legal doctrine affects people’s lives. His sense of fairness and even-handedness pervaded his evaluation of every case, regardless of the background of the litigants involved.  In a prisoner’s appeal in a civil rights case, Judge Cudahy wrote (in response to a colleague’s economic analysis):  “Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean, but they are people.”

The judge was modest as a jurist, just as he was modest as a person. He did not pretend that an outcome was obvious when it was not, nor did he construct fancy theories to dictate results of cases.  He was an honest judge who practiced his craft straightforwardly.

He was also extraordinarily hard-working and well-prepared. Every night he would carry a heavy stack of briefs home with him.  When we discussed our cases, he had always read the briefs thoroughly and had his own views (and questions) about each of the issues presented.  He had high standards for his written opinions, going over drafts repeatedly until he was satisfied that an opinion was right, both in its result and in its explanation.

According to his colleague Judge Richard Posner, Judge Cudahy “established himself as one of the nation’s most productive and influential appellate judges, with particular interest and expertise in regulatory and commercial cases, and with a strong liberal voice.” The judge wrote nearly 2,000 published opinions as a judge, including many particularly important opinions in the fields of antitrust, administrative law, civil rights, constitutional law, and criminal procedure.  He was well known for his powerful dissenting and concurring opinions, and he wrote separately more often than most appellate judges.

For all his conscientiousness and passion for the law, the judge was courteous and respectful toward lawyers and litigants.  He was a gentleman in court and out of court. As law clerks, sometimes we would suggest what we thought was a clever metaphor or literary allusion or colorful phrase in an opinion (usually in a footnote). Judge Cudahy would occasionally adopt the suggestion, but only if two conditions were met:  (1) it was not gratuitous, but added to the substantive discussion in some way, and (2) it was not at the expense of a party or a lawyer in the case, who deserved respect.

Judge Cudahy graduated from West Point and Yale Law School, and he had a remarkably wide-ranging set of experiences before joining the bench: Air Force officer; State Department lawyer; CEO of a corporation; law firm partner; law professor; chairman of the Wisconsin public service commission; chairman of the Wisconsin Democratic Party. He authored many articles and speeches in the areas of energy law and administrative law. His interest and expertise in these areas led his law clerks and staff to found the Richard D. Cudahy Writing Competition on Regulatory and Administrative Law, which is run annually by ACS. The judge was very proud of that competition and pleased to be associated with ACS.

Judge Cudahy had 83 law clerks during his tenure on the bench, which began with his appointment by President Carter in 1979.  Of his 83 law clerks, five have become judges; eighteen have become professors; and dozens more have worked in public service and in the private sector throughout the country. As a judge, I find myself frequently thinking about how Judge Cudahy would approach a case or an issue.  I am reminded every day of what an extraordinary role model I had -- and continue to have -- in Judge Cudahy.

Judge Cudahy leaves a tremendous legacy in the hundreds of opinions that contributed to the development of the law, but also in the many law clerks, students, lawyers, and others who had the privilege of knowing him and being affected by his brilliance, his humanity, and his decency.

How Textualism Postures

by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

*This post is part of ACSblog’s 2015 Constitution Day Symposium.

In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

[W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

My contentions are these:

  • Most importantly, at least as textualism is practiced, it has no claim to rising above politics — no claim to ideological purity or neutrality.
  • The fact that Justice Scalia may have supported some “liberal” decisions is largely insignificant in light of his overall record.
  • It’s no answer to cite the record of other judges or to argue that other theories are even more open to manipulation: textualism purports to operate on a loftier “rule-of-law” plane. But it doesn’t.        
  • As stated by Professor Margaret Lemos, textualism and its alternatives have become “political brands, marking judges as liberal or conservative.” (P. 37.) Textualism is, of course, the conservative brand.

My article also addresses textualism’s well-known antipathy toward almost all legislative history as an aid to interpretation. I list a dozen arguments to support its validity and value — including its constitutional and historical foundation, the realities of the legislative process, the bipartisan view of lawmakers, and recent real-world studies of congressional and legislative drafters. (Pp. 38–40.) The canons of construction, as a group, have no superior claim to legitimacy, orderliness, reliability, or acceptance. And judges are no less capable of making informed, sensible decisions about legislative history in a case than they are about sorting through the interplay of the canons

To get an idea of how bewildering that interplay can be, you could start on the first page of the article. Or start on 28 for more on textualism’s (supposed) objectivity and (misguided) rejection of legislative history.

Obergefell v. Hodges: A Note to Future Self

by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

In the rearview mirror of history, today’s decision in Obergefell v. Hodges will one day appear as obvious and inarguable to almost every American as other landmarks in our Nation’s journey toward equality. Like Loving v. Virginia (1967), which invalidated bans on interracial marriage, and Brown v. Board of Education (1954), which invalidated segregation, Obergefell will stand as a cherished American monument not just to the realization of greater equality, but also to the struggle and sacrifice to get there. And, as with perhaps the most powerful of American monuments ‒ the Lincoln Memorial ‒ Obergefell should not only turn our contemplation to the past, but moreover should direct our reflections to the future.

In the eloquent words of Justice Kennedy, from an earlier decision on which today’s builds, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” What will be those “certain truths” which we cannot see today, just as barely a generation ago a majority of the Court ‒ and no doubt most of the country ‒ deemed the claim of equality for same-sex couples to be, “at best, facetious”? I do not know.

Perhaps future generations will find our failure to address crippling inequality of income and opportunity to be as willfully blind as past generations’ acceptance of separate but equal. Or perhaps our posterity will judge the demographics and conditions of mass incarceration to be as discriminatory and violative of human dignity as we do the machinery of justice under the Ancien Régime. But even if we had the benefit of tomorrow’s hindsight today, would we have the humility and courage to accept it? After all, Justice Harlan’s dissent in Plessy v. Ferguson (1896) spoke from the future, and no one else signed on.

Make no mistake, today is a joyous day. Most immediately, I celebrate with my clients in the Oklahoma marriage equality case, who after decades as loving, second-class couples last year won the right to marry in our home state, and who now have gained the freedom to travel across America with all the privileges and protections of marriage.

I am also elated that my children will grow up in an America ‒ and increasingly, a world ‒ where yet another class of once-marginalized persons will experience less discrimination and enjoy greater freedom. But what better way to celebrate Obergefell ‒ besides marrying, of course, if one is so situated ‒ than to adopt the forward-gazing vigilance of Lincoln in his memorial to the certainty that there remains equality left to secure tomorrow which even those of us who are jubilant today might resist.

Not the End of the Road: The Struggles That Remain After Marriage Equality

by Camilla Taylor, Counsel and Marriage Project National Director, Lambda Legal. Ms. Taylor is a member of the Advisory Board the Chicago Lawyer Chapter.

*This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

As the four legal teams representing same-sex couples from Ohio, Kentucky, Tennessee and Michigan left the Supreme Court after oral argument in Obergefell v. Hodges, we felt overwhelmed by the significance of the moment.  The Supreme Court is now poised in our combined cases to decide whether the Constitution guarantees same-sex couples the freedom to marry.  Many of us had worked toward this day for well over a decade or longer.

A victory in Obergefell would be transformative. Our
struggle for the freedom to marry has always been about far more than marital protections; at its essence, our struggle is nothing less than a demand for formal recognition of our common humanity and of the legitimacy of all families.  A win for same-sex couples and their children will breathe new life into our country’s promise of liberty and equality.  Children of same-sex couples will be able to grow up free of government-imposed stigma, and with pride in themselves and in their families.  Lesbian and gay youth will be able to hold their heads higher, secure in the knowledge that they may form families worthy of equal respect in the eyes of their government.

However, while a victory in Obergefell would be historic, it would not be the end, even for our marriage work.  A movement to secure civil rights is never finished by a Supreme Court ruling, no matter how important that ruling may be.

As we have seen after past marriage court victories, states determined to discriminate do not simply give up.  Instead, for example, they fight to deny the children of same-sex spouses two-parent birth certificates.  Same-sex spouses who were precluded from marrying until recently, or whose marriages were denied recognition as a result of discriminatory state marriage bans, may still have to fight for crucial marital protections subject to a relationship duration requirement (such as social security benefits for a surviving spouse, which accrue only to those who were married for more than nine months under state law).

An Obergefell victory also would highlight the significant non-marriage work left to do to protect lesbian, gay, bisexual and transgender people from discrimination in employment, public accommodations, housing, credit, education and other arenas.  No federal law explicitly prohibits such discrimination based on sexual orientation or gender identity.  29 states lack any state law explicitly prohibiting such discrimination based on sexual orientation, and the number climbs to 32 with respect to gender identity.  Thus, a win in Obergefell would create a world in which same-sex couples could marry, but still lose their jobs or be denied a mortgage or an educational opportunity for doing so.

Other work remains, too.  We must continue our efforts to prevent bullying of LGBT youth in school, police misconduct and criminalization of people living with HIV, and we must increase access to medically necessary care, particularly for trans people and people with HIV.  We must also continue to broaden acceptance by courts, agencies and others that discrimination based on gender identity and sexual orientation necessarily constitutes sex discrimination under Title VII and other sex discrimination laws and regulations.

However, even as we press forward with these priorities, our movement faces a grave new threat.  Our well-funded opponents have not given up, either.  Instead, they have orchestrated a deluge of bills in about half the states ‒ approximately 100 bills by most counts ‒ designed to allow businesses, public employers and other institutions to use religious justifications to deny service to lesbian and gay people or treat them as unmarried.  These religious refusal laws threaten to eviscerate nondiscrimination laws even before we succeed in passing them.  Moreover, these bills not only constitute explicit invitations to discriminate against LGBT persons, but put others at risk of serious harm as well.

For example, legislators in Texas, Alabama and Michigan are considering a series of so-called “conscience clause” bills that would allow state-funded child placing agencies to refuse to place a child with potential foster or adoptive parents if the placement conflicts with the agency’s “religious or moral” convictions, including restricting potential LGBT foster and adoptive parents.  These bills are thinly-veiled attempts to single out LGBT foster and adoptive parents at the expense of thousands of children in foster care in these states who lack a stable, loving family to care for them and potentially provide a permanent adoptive home.

As another example, recent outrage about religious refusal bills in Indiana (SB 101) and Arkansas (HB 1228) prompted revisions but not vetoes, leaving new harmful laws in place.  Although legislators amended Indiana’s law to limit its application in discrimination contexts, Indiana still lacks any statewide nondiscrimination law based on sexual orientation or gender identity.  Additionally, the amendment did nothing to fix the way in which Indiana’s new broad religious refusal law threatens particular harm to women, transgender people and people living with HIV.

In other words, when women seek health care from a pharmacist or a doctor, Indiana’s religious refusal law still invites medical providers to point to their own religious beliefs in denying care.  This isn’t simply a hypothetical scenario.  In Benitez v. North Coast Women’s Care Medical Group, California doctors refused infertility treatment to our lesbian client, citing their religious beliefs.  Just last month, a Georgia pharmacist acknowledged denying medication to a woman who was miscarrying, also relying on religion.  Because only women and not men are prescribed certain medications such as birth control pills, courts regrettably may not treat a refusal to provide this health care as discrimination.  Consequently, an amendment to limit use of a religious refusal law in discrimination contexts may be no fix at all for this type of problem.

Religious refusal laws also threaten similar injury to people with HIV who frequently have particular health needs not shared by others.  Health care providers have pointed to religious reasons for denying people living with HIV access to life-saving treatment.  Transgender people already face pervasive discrimination in health care settings, and religious refusal laws put them at particular risk as well.

The new challenge posed by religious refusal laws will be among the toughest the LGBT community has ever faced.  Our civil rights movement has seen extraordinary progress in the last ten years.  In little over a decade, LGBT persons have gone from being presumed criminals to being able to marry in 36 states and hopeful for a pivotal victory securing the freedom to marry nationwide.  However, regardless of how the Supreme Court rules next month, our work continues and some of our greatest battles are still ahead of us.

The Case for Officer Body Cameras and Sensible Legislation Surrounding Them

by Nashwa Gewaily, Fellow at the ACLU of Massachusetts.

On the evening of March 27, an apparent shootout left a police officer critically wounded and a man dead on the streets of Boston’s Roxbury neighborhood. As word of the incident spread, divergent narratives emerged and questions abounded across social media and news sites. In the aftermath, the Boston Police Department and its commissioner were widely praised in traditional media outlets for quickly sharing with select community figures an unbiased account of what had transpired: video footage from a nearby business that captured critical moments of the encounter.

In the wake of a number of high-profile fatal police encounters, followed by community outrage and mass demonstrations, one could easily anticipate the heavy cloud of tension over Boston had nothing been produced to clear the air.  This incident is one of tragic many that reveal the benefits of capturing police encounters on video.

Yet, it comes at a time when states are scrambling to make it much more difficult for police incident footage – specifically, police encounters recorded by body-worn cameras – to see the light of day. Citing privacy concerns, legislators in at least 15 states have introduced bills that would exempt from public records law or otherwise limit the disclosure of police-civilian encounter footage obtained from body cameras.  While there is certainly an obvious need to protect the privacy of anyone videotaped by police, the over breadth of many of the proposed rules only serve to undermine the transparency that is sorely needed to bring accountability to police departments.

As the national conversation about body cameras continues to evolve post-Ferguson, privacy has become the lightning rod issue.  Any use of police body cameras must be accompanied by strong, stringently enforced policies and practices – particularly when it comes to preventing surveillance of First Amendment-protected activities, safeguarding expectations of privacy in one’s own home, honoring individual requests not to record interactions, giving notice to subjects being recorded, and deleting footage that is not flagged for review.  It is critical to strike the proper balance between individual privacy and police accountability interests, between common sense measures against voyeuristic video disclosures and the need for informed public oversight of police behavior.

But what is clear is that privacy interests should not be wielded as a cudgel to shut down consideration of implementing body cameras altogether.  The issue deserves serious engagement, not derailing a discussion on balancing interests with straw-man distractions. (“Do you have the body camera on when you go to the bathroom?” No, Boston Police Superior Officers Union President Jack Kervin, probably not.)  Here in Boston, a robust public discussion to formulate appropriate public records guidelines is not even on the horizon. That’s because Boston continues to lag behind other police departments that have taken proactive steps to improve their policing. Beyond noncommittal statements about their openness to discussing body cameras, Boston’s mayor and police commissioner have given no indication of plans to make real changes in the department.

And that’s a shame considering the potential to drastically improve the state of community policing in Boston and across Massachusetts, as officials want to do.  Police officers, just like everyone else, behave differently when they know they are being watched. It follows that officers would be much less likely to engage in abusive, racially discriminatory, or harassing behavior when they are on heightened notice of possibly being held to account. This is compelling reason enough in a city that has subjected thousands of its residents to racially-biased, unjustified intrusions on its streets.

Although we have yet to see how body cameras will play out in the long-run, one widely cited study shows that use of the device has led to a 60 percent drop in use of force and a nearly 90 percent drop in complaints against police in Rialto, California last year. More recently, similarly promising results were found when the San Diego Police Department tested their use.  Police departments across the country, in small towns and big cities alike, are deploying, testing, or seriously analyzing the use of police body-worn cameras. Here in Boston, when it comes to genuine police reforms we can only hope that a police department that claims “the highest of standards” will take some cues and catch up to towns like Gill, Massachusetts, where a single officer has been outfitted with a body-worn camera.

The Boston Police Department’s video disclosure following the recent Roxbury shootout is a good example of increasing transparency around police actions, despite the limited nature of this particular release. But police must be willing to uphold the same values of transparency when video captures unjust and illegal police misconduct as when video potentially exculpates the police themselves. Police forces can work toward relationships with the public that engender trust and respect, but these efforts won’t succeed unless they are accompanied by a genuine commitment to meaningful reforms.  Body-worn cameras are no panacea for unaccountable police. But if they can lead to fewer abuses, less misconduct, more professionalized police forces and fewer deaths on the street, then their benefits far outweigh their potential for undue privacy intrusions.

It should serve as a galvanizing moment for the Boston Police Department to seriously engage with calls to equip its officers with body-worn cameras.

Harvard Law Professor Laurence Tribe, in Exclusive Interview, Discusses New Book on the Roberts Court

The following interview of Harvard Law School Professor Laurence Tribe about his book Uncertain Justice: The Roberts Court and the Constitution (Laurence Tribe and Joshua Matz, Henry Holt and Co., 2014, ISBN 978-0-8050-9909-6) took place in the Ohio Room of the Capitol Hilton in Washington, D.C. on June 20 during the 2014 Convention of the American Constitution Society. The Interviewer is Frank Housh of the Housh Law Offices, PLLC, in Buffalo New York, Chair of the ACS WNY Lawyer Group and a member of the National Book Critics Circle.

Interviewer

Your book seems to consciously avoid some of the characteristics of books written for the legal profession, such as voluminous footnotes and block quotes.  Was this a book meant for the general public?

Laurence Tribe

It wasn't so much that I consciously was not writing a book for lawyers. I was consciously not writing a book only for lawyers. I definitely want the legal community to get a better understanding than it seems to have displayed about what makes the Supreme Court operate the way it does, what drives the decisions, why the standard sort of press accounts are such oversimplified caricatures. At the same time, I certainly wanted to speak to my own colleagues and the people who teach constitutional law with fresh insights. So I didn't want it to be only for non-lawyers, but I wanted it to be very broadly accessible. So that for me, as soon as someone like Doris Kearns Goodwin said that she thought everybody would enjoy my book it, find it thrilling and fascinating, that's what I was aiming for—because I think that lawyers too often speak only to one another and judges and there's a kind of clique and almost a sort of inside mentality of the high priesthood of the law that I wanted to break through.

Interviewer

I guess that's what I meant by the question. It seems that you were constantly trying to avoid legal speak, legalese, that often accompanies writing by lawyers for lawyers.

Laurence Tribe

Right. And all the talk of levels of scrutiny and intermediate review and so on, things that are substitutes for thought very often, and that are pigeon holes, but very few birds are pigeons.

Interviewer

I interpreted your book, especially the Prologue and Epilogue, as an attempt to write a historical perspective on the Roberts Court during its existence. Is that a fair statement?

Laurence Tribe

It's not a retrospective view as it would be if I was writing about the Hughes, Taft, Stone,  Warren, or Burger Courts. It’s a Court in process; it's a Court that's ongoing. We're living through it and the world that we're living through is being constantly reshaped in profound and dramatic ways in respect to issues of personal anonymity, issues of whom you can marry, who can carry a gun, who can vote, what kinds of government action can be based on race and in what way, and what are the limits of the President's powers. It is really a book about things that are very much in the news and that affect all of us, but that most of us in a society that is self-governing understand far too little about. So I wanted to do my bit in overcoming that knowledge gap, that understanding gap.

Interviewer

I got the sense in reading your book that you were seeking to frame the decisions of the Roberts Court thus far in kind of a historical perspective that is often impossible when we're in the midst of it, talking past one another about issues without our own sort of ideological biases. Is that what you were trying to do, and if so, why is that so important?

Laurence Tribe

I think because the Court is an ongoing institution, even though it changes dramatically and the whole tenor and chemistry of the Court changes even when just one of the nine members changes, it is still an ongoing institution.  It has its traditions, it has precedents that it doesn't always follow but which serve to frame the discussion, and it has grappled with problems that themselves have a very deep history: problems of race, which is central to the first chapter of the book, which deals with race and gender and sexual equality and equality for gays, is a problem that goes back to the founding of the republic.

Race is, if anything, our original sin. It's our compromise with slavery—we never fully solved that problem. That's why the subtitle of that chapter goes to the question of history. Chapter 1 is called Equality: Are We There Yet? It's a very different way of looking at the history of our country and how far we've come. Some people think we've basically overcome our problem of racial prejudice and that all we need to do, as the Chief Justice put it rather concisely, “the way to stop discrimination on the basis of race is to stop discriminating on the basis on race.” QED.  As if it was that simple.  [note: the previous quote is the concluding sentence of Chief Justice Roberts’ plurality opinion in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)] .

There are other justices who think that only someone who is blind to our past and insensitive to our present could view the world that way and that we have miles to go before we sleep.  Both sides have some valid arguments to make. I think it's a terrible thing that people get so dug into their positions that they either think that the conservatives on the issue of race - who are not always conservative on issues of privacy, or guns, or speech, or religion - have to be either dishonest with themselves, or dishonest with us and they can't have a legitimate point of view.  And I think that's wrong.

You'll never get past the divisions and the impasse if you don't get inside the other side's head and try to see the world through their eyes. And, likewise, for many of them, the idea that somebody should be willing to use race in order to overcome racism, in order to encourage racial integration and diversity, is deeply wrong. I mean, someone like Justice Thomas who believes that you do racial minorities no favors when you put a thumb on the scale based on race that permanently marks them with a stigma and makes people think they haven't deserved the things that they achieve.  Justice Sotomayor sees the world very differently. Unless one looks at that history and the experiences of the individual justices to get past the demonizing of both sides and stereotyping and caricaturing of both sides, we are not going to understand where the Court has come from and therefore will have very little sense of where it will go next.

Interviewer

That's an interesting observation. I am reminded of the conversation that we saw last night with Justice Sotomayor [June 19, 2014 ACS Convention, A Conversation Between US Supreme Court Justice Sonia Sotomayor and Professor Theodore M. Shaw, click here for video]. So often, what is written about the Court are psychological analyses of the Justices. An example is Justice Clarence Thomas.  Writers have speculated that his opinions somehow reflect a trauma and anger related to his background and his relationship to affirmative action. While I don't agree with a great deal of what Justice Thomas says, I don't think it’s fair to him to suggest that what he writes and believes is a merely a function of his individual experiences. Justice Sotomayor said, "I am who I am," but first and foremost, she's a lawyer.

Laurence Tribe

Right, and I think the attempt to subject Justices to armchair psychoanalysis, especially amateur armchair psychoanalysis, isn't likely to get us very far. But at the same time, the attempt to understand where they're coming from without having a very rich sense of where they've been and what they say about what they've experienced, which is often very revealing—it was revealing with Justice Sotomayor, it's been revealing with Justice Thomas—and without it, it's not likely to get us very far. When Justice Sotomayor says "I am who I am," her experiences and the way she has assimilated and internalized them shaped her understanding of the world, she is simply being more self-conscious and candid than some people are, who seem to think they can approach the world as though their mind is a blank slate, as though they were just computers programmed by some intelligent designer, which I think is self-deception.

On the other hand, each of these Justices is trying to remain faithful to a set of traditions and fundamentally to the law. But none of them regards the law as simply a nuisance to be kicked aside when it's inconvenient, or a play-thing to be manipulated at will, although outsiders who are unsympathetic with the views they don't agree with often tend to accuse Justices of acting that way.

Interviewer

As we speak, professor, they're having a discussion on the Convention floor about the Windsor decision. Many people have tried to explain the comparative speed that the LGBT community has had in earning certain civil rights compared to minorities and people of color. I am reminded of the portion of the book where you discuss the Justices watching pornographic movies in the basement (Chapter 4, page 121). And some of the Justices just could not relate to it on a fundamental, human level. Do you that think it's possible that's one of the reasons that Windsor came, perhaps earlier than many expected, because when more gay people publicly declared their sexuality it became part of our shared experience?

Laurence Tribe

I think there's no doubt that recognizing that the sky didn't fall when some people discovered their own children or their good friends, were gay and that their lives were not reducible to a particular sex act was a moment of understanding.  Similarly, when people of the same sex got married in Massachusetts, the state’s highest court was inspired to render its decision in the Goodridge case (note: Goodridge v. Department of Health, is a 2003 decision by the Massachusetts Supreme Court holding that denying marriage licenses based on sexual orientation violated the Massachusetts Constitution) principally by Justice Kennedy's opinion in Lawrence v. Texas, saying that it was an unconstitutional denigration of the equal liberty and dignity of gays and lesbians and bisexuals for the state to criminalize sodomy. Even if it did that on a supposedly gender neutral basis, it was a way of signaling the second-class status of gays and lesbians.

When the Supreme Court did that in Lawrence v. Texas in 2003, the dominoes began to fall: Massachusetts recognized gay marriage—lots of people said that would be terrible, the institution of marriage would disintegrate, but nothing of the sort happened. Children who were already living with same-sex parents were much better off. They were no longer confused about why their parents were not married and the parents of their friends were.  State after state began moving in that direction.

The next dramatic step was the one that the Supreme Court took in Windsor, again led by Justice Kennedy, when the Court said that at least in those states that have come to recognize that same-sex marriage is on equal footing with opposite-sex marriage, the federal government has to treat the married couples in those states not like second class citizens, but as fully married people. And that made a difference to lots of and lots of benefits that otherwise would've been denied.

When that happened, and when Justice Scalia claimed in dissent that it is inevitable that states will conclude and courts will conclude that same sex marriage is now required by our Constitution even though the majority in Windsor didn't go so far as to actually say so, I think he was making an accurate prediction -- and to some extent a self-fulfilling prophecy -- because unanimously, every lower court that has considered the issue has now said there's no conceivable basis for treating same sex couples less well.

I think Justice Ginsburg's image, which didn't make it into any of the opinions, about civil unions as "skim milk marriage" began to catch hold. That, coupled with generational change, now means that everyone recognizes the inevitability of a federal Supreme Court holding that no state can constitutionally discriminate against same-sex couples by denying them marriage licenses.

Interviewer

I've always agreed with the proposition that the objections to gay marriage were maybe exactly the same as the objections to the miscegenation laws, that blacks and whites can't marry because it will harm the institution. My wife and I were joking that in New York we've had gay marriage since 2011 we're waiting for the denigrating effect on our own marriage.   It is an absurd proposition, but it was used as a justification against miscegenation and gay marriage.

Laurence Tribe

You know, it feels absurd to me too. But, I think we have to recognize that there are still lots of people who, for reasons they can't fully articulate, think that the very essence of marriage is a man and a woman. They are people who would say when the man and the woman are of different races, that doesn't matter, although, as you point out, a generation or two ago, that mattered to a lot of people. But you have to persuade people ultimately that it shouldn't matter.

You can't simply look at them and say "you're evil," or "you're bigoted," and that's why there are some aspects of the Windsor opinion that I think Justice Scalia may have criticized justly, because the opinion was written in a way that made it seem as though the people who favored the Defense of Marriage Act – an act that, after all, included the Congress that passed it and President Bill Clinton who signed it - had to be fundamentally homophones and bigots. They have been people who were uncomfortable with gays and lesbians, but to accuse them of being sick in the same way that some straight people accuse gay people of being sick I think isn't a way of advancing the dialogue.

Interviewer

That's certainly a fair point, professor, but isn't it fair to say that individuals who advocated for an anti-miscegenation law and individuals who still object to the marriage of people of the same sex, that they do have a prejudice and  bias?

Laurence Tribe

I think that's almost by definition true. They are biased against same-sex marriage, against same-sex sexual activity. They're biased against it because they think it's wrong, they think it's evil. In many cases their religion teaches them that it's evil. Now I may say, and I do say, that I don't agree with that teaching, but I have to respect that that's their view.

But I think the Court's position ultimately should be that you're entitled to that view privately and no one is making you marry someone of the same sex. But, unless you can show that someone is hurt in some way when people are allowed to marry those they love regardless of sex, you just can't allow your personal views to carry the day. That's why the issue is in so many ways easier than abortion. With respect to abortion, at least some people genuinely believe that an abortion kills an innocent human being and you really can’t respond to that argument by saying “Oh, it’s just a piece of protoplasm. Get over it.” That is a deeply divisive issue that will continue to divide the country as long as we have natural pregnancy and as long as basically half the human race is required to gestate the entire human race.

Interviewer

Let me ask you about the books’s discussion of Citizens United (Chapter 3 - Follow the Money).

Laurence Tribe

Look, I think it’s one of the more interesting and challenging chapters in the book. When people accuse the Supreme Court’s decision in Citizens United of being incomprehensible other than as an expression of some bizarre view that corporations are human beings and that it’s perfectly alright that money should dominate our politics, I think they completely misunderstand where the Court was coming from.

The Court’s decision didn’t depend upon the view that corporations are persons. It was relying on the fact that the First Amendment protects speech and not just speakers.

The court is particularly suspicious of government action that regulates the source or the magnitude of speech. That suspicion is not so hard to understand when the government is regulating campaign speech which may be a form of self-dealing on the part of politicians who may be making it harder for challengers to unseat them with sources of money from the right or from the left. Being suspicious of that is perfectly understandable. And being suspicious of any attempt by government to orchestrate the appropriate amounts of speech or influence from various sources is understandable.  So that’s why Citizens United was such a hard case. It was a hard case because there are powerful constitutional values on both sides.

Interviewer

In my mind, the area with the potential for self-dealing by elected officials isn’t campaign finance, but redistricting.

Laurence Tribe

I completely agree. I think the problem of political gerrymandering is one of the sources, not the only source, but one of the sources of severe political dysfunction. Demographic changes have tended to cluster people of similar views in similar areas, has also helped to polarize the political system. And I think when the Supreme Court - and this is before Robert became Chief – decided that political gerrymandering is simply beyond the capacity of the Supreme Court as an institution, it made a very fundamental mistake that I hope it will rectify at some point.

Interviewer

Another observation—in New York where the state constitution specifically invests the Legislature with the right to do their own districts and state districts, they’ve simply been unable to come to a consensus, so a federal judge in Brooklyn, formulated the districts which I think were, by all accounts, very fair.

Laurence Tribe

It might be good if we had a less political system for drawing district lines - something we could delegate to a computer, not something where human judgment is necessarily required.  The benefits could be sufficient to outweigh the dangers. And I do agree that if we ask what are the sources of political dysfunction, they’re not simply decisions like Citizens United.

One of the reasons I think it’s hard to get the Supreme Court to uphold any particular version of campaign finance control is that every version before it was loophole-ridden.  The idea that legislative reform would sufficiently enhance American democracy to justify the compromise of First Amendment values that occurs when the Court lets the government decide who may speak is quite unrealistic.

Interviewer

Perhaps a corollary to that is the near-forgotten fact that the broadcast airwaves are owned by the public.  Do the individuals who broadcast on the airwaves owe a duty to the public to give all the players in a political dialogue a voice even if one party can pay for all of the ads?

Laurence Tribe

That’s another very hard issue in which giving the government the power to decide whether the government is being sufficiently fair and equal is itself very dangerous.  The Supreme Court in the famous Red Lion Case (or maybe I should say the infamous  Red Lion Case), Red Lion vs FCC, held that, even though newspapers cannot be forced to run a reply to an attack or to give balanced coverage, that those who get a license to broadcast are in a different category.  But the FCC got rid of that rule partly because of all of the problems it caused. Many people now believe the rule would and should be held unconstitutional today, not because the airwaves are not public but because giving the government the power to control who can use which frequency and in what way and when an attack deserves a response and when you have given fair and equal response time and whether you are really being fair and balanced, is putting the government in the position of the grand censor.

Interviewer

If the government can’t make those decisions, then who? As a democracy, isn't it incumbent on the government, despite all of its failings and potential for self-dealing?

Laurence Tribe

You could say that about all speech. If the government is not to decide which speech is acceptable and which speech is dangerous—who is to decide? The answer is: the speaker. If a hundred people want to contribute whatever they can afford to propagating a message, whether it's an anti-Hillary message, or an anti-Sarah Palin message or an anti-McCain message, if they want to do it in a corporate form, or in the form of an association, I think the answer to, "if not the government, who?" is: the people themselves.

Interviewer

Which Justice said "the appropriate response to objectionable speech" is more speech?

Laurence Tribe

Well, so many Justices...Brandeis, Holmes, Black, Douglas. It's right. It is, however, a slight oversimplification in this context. That is, the values of free speech are bound up in the values of self-government. When the Supreme Court went as far as it did in Citizens United and said "there's no problem of corruption here," then it was really overstating and oversimplifying.

It may not be “corruption” in the sense of “under the table” bribery, but everyone knows that people who bundle huge amounts of money either personally or through Super PACS, on behalf of politicians get their phone calls answered more quickly, they have more access, they have more influence.  That in itself is corrosive to democracy. That's not healthy. The trouble is that the cure may be worse than the disease. Giving the government the power to say "Well we're going fine-tune this in order to make democracy work better," is in itself terribly dangerous.

Interviewer

My final question, professor, is what do you hope your readers will take from your book?

Laurence Tribe

First of all, I hope they'll enjoy it. Doris Kearns Goodwin says they'll find the baseball stories fascinating. Jeff Toobin says they'll learn a lot. People who are much more conservative than I am on many issues like Ted Olsen say it's even-handed. Novelists say it's fun. So the first thing I hope they'll learn is that learning about the Constitution is not a painful pill to take and to swallow in order to become a better citizen. It turns out that becoming better informed and better educated can be enjoyable. But on top of that, it can be useful—because in the end, so many of these decisions depend on the individual views of nine human beings.

They are, after all, just human beings. They have different perspectives on the Constitution that can't be summarized by their political party or by how right or left they are on various particular hot-button issues. And because of that, the President who names them and the Senate that confirms make an enormous difference on a personal day-to-day level that we don't think about often enough when we pull the lever or punch the ballot for President or for Senate. This should be an issue much more salient in people's minds when the political process focuses on the selection of a new Justice.

 

ACS Staff Members Stephanie Rydell and Rachael Hancock contributed to the preparation of this interview.