This is not really breaking news at this point as it is all over my Twitter feed (@BClarke_LawProf), but the Fourth Circuit released its opinion in Bostic v Schaefer a little while ago, which was the case challenging the Constitutionality of Virginia's ban on same sex marriage. In short, the court applied strict scrutiny because the Virginia law abridges the fundamental right to marry (see Loving v. Virginia) and found Virginia's law unconstitutional under the Equal Protection Clause of the 14th Amendment (on the 146th birthday of the 14th Amendment no less). The opinion is here. [The caption is 19 pages long, so keep scrolling to p. 20 to get to the actual opinion.]
My very first Faculty Lounge post -- back in 2012 -- focused on the then-pending vote to amend North Carolina's Constitution to add a prohibition on same sex marriage. Obviously the Fourth Circuit's opinion today calls N.C.'s ban into serious question (NC's ban is actually quite a bit broader than Virginia's ban). [Hooray!].
I am currently finishing up a draft of a paper for presentation at SEALS next Monday entitled (rather clunkily I admit): "The Near Term Impact of Judicial Nominations on Court Ideology: A Comparative Study of the U.S. Courts of Appeals for the Fourth Circuit and Eighth Circuit Before and During President Obama’s First Term."
In it I prove, quantitatively, that President Obama's successful nominations to the Fourth Circuit during his first term had a pronounced near-term impact (within 0-2 years) on the Fourth Circuit's collective judicial ideology and shifted the Fourth Circuit toward the "liberal" end of the spectrum from 2010 to 2012 as his 6 successful nominees took their seats (in reality, this means the court shifted from "conservative" to fairly moderate). While my paper is based on a quantitative study of the Fourth Circuit's labor & employment cases from 2004 to 2012 (using the Eighth Circuit's cases over the same period as the control) that I (and my RAs) have spent hundreds of hours conducting, today's opinion supports my original hypothesis and findings: This is not the Fourth Circuit of just a few years ago.
The panel consisted of Judges Floyd, Gregory and Neimeyer. Judge Floyd, an Obama nominee, wrote the opinion, which Judge Gregory (a Clinton recess appointment, re-nominated by G.W. Bush as part of an early first term political bargain) joined. Judge Neimeyer (a G.H.W. Bush nominee) dissented.
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