Where Are the Liberal Justices on Gay Rights?

In re-reading the marriage cases this afternoon, something struck me: where are the liberals?

There are six opinions in the two cases.  Justices Kennedy wrote the majority opinion in Windsor, with Chief Justice Roberts and Justices Scalia and Alito writing dissents.  Chief Justice Roberts wrote the majority opinion in Perry with Justice Kennedy writing the dissent.

The four liberals joined Justice Kennedy in Windsor but each was silent about their own thoughts.  Three of the liberals joined Chief Justice Roberts in Perry (Breyer, Ginsburg, and Kagan).  Justice Sotomayor joined Justice Kennedy's dissent.  Each was silent about their own thoughts on this case as well.

Why does this matter?  Presumably, at least one of these four has some view of the Constitution that endorses a more robust view of gay rights than Justice Kennedy.  Kennedy has certainly been a proponent of gay rights, but not in a way that has changed the level of scrutiny and put discrimination based on sexual orientation on par with discrimination based on sex or race, a central cause in current-day LGBT advocacy.  In fact, Kennedy hasn't ever been really clear about how exactly he is analyzing discrimination against gays and lesbians.  His opinions are full of lifting rhetoric, but are short on clear analysis that helps future litigants and judges.

Without any of the liberals writing separately, we don't have any official statement in the Supreme Court Reporter from any Justice arguing that sexual orientation discrimination in all of its forms is odious to the Constitution.  We don't have any Justice with a ringing endorsement of equality for LGBT people.  We don't have any Justice making the strong case for marriage equality.

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today's concurring opinions often becomes the logic in tomorrow's majority opinion.

What's even more troubling about this is that this appears to be a trend.  In its history, the Court has issued four decisions advancing the cause of gay rights -- Windsor today striking down DOMA, Perry today rejecting the appeal of the decision finding Prop 8 unconstitutional (I'll give the Court the benefit of the doubt here by calling Perry a case advancing gay rights), Lawrence 10 years ago rejecting Texas's sodomy statute, and Romer 17 years ago finding Colorado's Amendment 2 unconstitutional.

Combined in those cases there have been 12 separate opinions.  Not a single one was written by anyone to the left of Justice Sandra Day O'Connor.  (Kennedy has written 4 times, Scalia 3 times, O'Connor 2 times, and Thomas, Alito, and Roberts each 1 time.)

Of course, when it comes down to it, the liberals on the Court owe the public nothing other than their votes.  In that regard, this current batch of liberal Justices has reliably voted for gay rights since 1996, and that should be celebrated.

But, it really would be wonderful if one of them had stepped up with a resounding call for gay equality in any one of these cases.  Instead, all we get from them is silence.

Comments

[Orin Kerr]

It's quite possible -- if not quite likely -- that at least some of the liberal Justices agreed to join Justice Kennedy's opinion only on the condition that he added pro-SSM language to his majority opinion. If that's right, they weren't silent: they just don't have their names attached to the pro-SSM language that is now in a majority opinion of the Supreme Court.

[Charles Paul Hoffman]

This goes to a point I've made for years - there are no genuine liberals, in the sense we used to understand that term in the 60s-80s, on the Court today. We instead have a "liberal" block that would largely fit in with the moderate Republican nominees of that period, Kennedy and perhaps Roberts where the older Conservatives would have fit, and the rest well to the right of anyone since the 1930s/40s. Occasional we get "liberal" results, but it is all of the gradual sort, and we no longer see the barn-storming dissents and concurrences on the left, only the right.

[SCJ]

Isn't the inference opposite of Kerr's also plausible? That is, Kennedy (either b/c he didn't want to nationalize SSM or is waiting to make up his mind on the matter) made clear that the liberals ought to be on board w/ his doctrinal hybrid of an opinion (parts of which can be read favorably by either side in the "next Perry"), lest the liberals get a factured 4-1-4 decision where they write a robust pluarality but whatever Kennedy writes is still controlling. Better to be 5-4 with Kennedy controlling than 4-1-4 with Kennedy controlling, so the thinking may go.

This reasoning might also explain why Kennedy's dissent in Perry didn't proceed to the merits, a somewhat atypical approach (compare, Scalia's dissent in Windsor). Maybe Kennedy is not yet sure that he wants to go "all the way" on SSM. So he avoided it in Perry by not writing to it, and wrote Windsor so that nationalized SSM is not a strictly neceessary (but still possible) future consquence of that opinion.

But I'm just spitballing.

[Michael J.Z. Mannheimer]

That's plausible but Orin's account is more likely, I think. It helps explain why the majority opinion is so muddled, attempting to ride two horses (equality and federalism) at the same time. Justice Kennedy wanted to hold together his coalition. True, the other four are better off with a Justice Kennedy majority opinion than a Justice Kennedy plurality opinion. But the same can be said of Justice Kennedy. First, I'm not sure the extent to which a Justice Kennedy opinion written just for himself on federalism grounds would have been viewed as "controlling," given that it would have espoused a position endorsed by exactly one Justice. Justice Powell's opinion in Bakke has always been seen as vulnerable because it was only, well, Justice Powell's opinion. Indeed, unlike the Bakke opinion, I'm not even sure a hypothetical Justice Kennedy opinion based purely on federalism would have been controlling for Marks purposes, given the lack of any overlap between such an opinion and the hypothetical concurrence based on equality principles. Moreover, to the extent such an opinion would be viewed as controlling, it would not have given Justice Kennedy the same sense of pride as an opinion for the Court: think the Chief Justice's opinion in NFIB.

[Alex]

Any thoughts on the comments from Professor John McGinnis about Windsor at yesterday's 4th Circuit Judicial Conference?

“And I’m sorry to say, I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court.” (http://www.c-span.org/flvPop.aspx?id=10737440263 at 1:09:07)

[David S. Cohen]

That's quite a statement given the Dred Scot and Plessy!

[Anderson]

Dred Scott and Plessy were more soundly reasoned.

[David S. Cohen]

If you want to cast your lot on that side of history, go ahead.