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December 5, 2012

Frustrating (and telling) myopia concerning criminal justice among SCOTUS elite

At SCOTUSblog, Tom Goldstein has this new and notable post about the gay marriage cases before the Supreme Court titled simply "Testing."  I always respect Tom's work and perspective on SCOTUS, but this post has a flourish concerning the conservative leanings of the court Supreme Court that reflects what I see as a persistent and problematic myopia concerning criminal justice issues now reflected in the view of many (if not most) of the elites who follow and discussion the work of the Roberts court.  Here is the passage that got under my skin (with one particular sentence emphasized by me):

The dilemma for gay rights advocates is that these test cases may be too much, too soon. Too much because Justice Kennedy -- the decisive vote -- is a conservative on a conservative Court, and many conservatives view heterosexual marriage as foundational.

Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the Court generally rides a horse and buggy.  Often, that is just what we want: a Court that does not get pulled along by the tides of the moment.

To the political center and left, and to libertarians, the answer in these cases is now pretty obvious.  The Justices, on the other hand, are tradition bound, distant from the media, and insulated from cultural and political winds.  They may need more time before they understand this “new normal.”

To be clear: a Supreme Court decision recognizing the right of same-sex couples to marry is inevitable. Someday. But in twenty years, the Court will be different. It will have caught up with the country. But a majority may not be there yet.

Instead, these cases are a bolt from the blue.  Five years ago, serious people did not think these claims could be won before these Justices.  The notion that discrimination against homosexuals in marriage is unconstitutional is not “baked in” to our legal culture.

Without the time to adapt, this Court is unpredictable.  Take Bush v. Gore and Obamacare.  The constitutional claims in both cases were generally regarded as ridiculous. But the cases raced ahead to the Court.  And both claims won, with only the Chief Justice saving the health care statute.

That is why other historic test cases like Brown v. Board of Education are so different.  The NAACP controlled race discrimination litigation.  It built a body of lower court and Supreme Court decisions over years.  The Court had time to adapt before it had to decide.

And of course, Brown was decided by a very different Court.  You cannot point to many liberal test cases that won in recent decades.  Conservatives have won on guns and affirmative action; they lost on property rights.  But for pretty good reasons, the left does not even try.  Progressive groups spend all their energy keeping cases away from this Court.

Actually, with my focus on just trial and sentencing criminal justice issues (leaving out police practice cases and other kinds of cases that have a more mixed record), I can point to well over a dozen of what could (and probably should) be called "liberal test cases that won" in just the last decade.  Here is a partial list just off the top of my head that could surely be supplemented:

Crawford (2004)

Blakely (2004)

Booker (2005)

Roper (2005)

Cunningham (2006)

Kimbrough/Gall (2007)

Kennedy (2008)

Melendez-Diaz (2009)

Padilla (2010)

Graham (2010)

Skilling/Black (2010)

Pepper (2011)

Plata (2011)

Lafler/Frye (2012)

Miller (2012)

Notably, in most of these cases, more "conservative" lower federal and state courts were generally unwilling to recognize or extended a defendant-protecting doctrine, and the Supreme Court took up the case in order to rule (often boldly) on behalf of a criminal defendant.  And, "for pretty good reasons," the criminal defense bar is persistently trying to get the Supreme Court to take up more cases and many progressive criminal justuce groups spend considerable energy keeping the Court busy with criminal justice cases.

I am a bit frustrated that Tom Goldstein does not in this context acknowledge that the Supreme Court right now is, in fact, acting in quite progressive ways on behalf of criminal defendants (which is, of course, one huge way in which the Warren Court established its liberal reputation).  But the myopia in his recent post strikes me as symptomatic of a broader failing among SCOTUS elites and (too) many progressive elites who fail to focus upon or even recognize the extensive harms being done to various vulnerable populations through modern mass criminal justice systems.

December 5, 2012 at 11:08 AM | Permalink


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Well said. And I think Goldstein tips his hand in saying that the constitutional claim against Obamacare was "generally regarded as ridiculous." I wonder what source he would cite for that assertion.

Posted by: Thinkaboutit | Dec 5, 2012 11:31:10 AM

Thinkaboutit --

Goldstein is a smart man and a gentleman, but, as you correctly imply, a hardcore liberal. He also travels in the upper reaches of the SCOTUS bar, which makes its money (and plenty of it) doing big business cases. They get involved in criminal cases only pro bono, and regard them as the law's (and the firm's) stepchildren. That's why they don't register on his screen.

Posted by: Bill Otis | Dec 5, 2012 11:44:50 AM

Not to mention Ring, Rompilla, Atkins, Roper. Sadly, the 4th A and 1983 haven't fared so well.

Posted by: Ala JD | Dec 5, 2012 11:53:06 AM



Of course these are not really bold new steps but just requiring some teeth remain the Batson standard. (Similar to Rompilla in the mitigation area.) Still, they do show that wins are possible in these areas, as long as you keep your claims modest.

Posted by: Anon | Dec 5, 2012 12:13:16 PM

I agree he should be called out for that statement (a bit strange since he himself was involved in some "liberal" leaning cases, a few successfully) but would need more evidence that it is representative of those "progressive elites" "who fail to focus upon or even recognize the extensive harms being done to various vulnerable populations through modern mass criminal justice systems."

Posted by: Joe | Dec 5, 2012 12:23:27 PM

"The dilemma for gay rights advocates is that these test cases may be too much…a conservative Court, and many conservatives view heterosexual marriage as foundational."
More foundational dilemmas:

|1.| Since when a man "weds" a man, or a woman "weds" a woman, there is no discernable bride, and no palpable groom;
no husband, no wife, no historic association with the institution, i.e. no "same-sex marriage" in a substantive sense.
[Makes the idea of a "shogun wedding" inane and meaningless.]

|2.| Whereas no one entertained the whimsy or perversion of "gay marriage" during the American Constitutional period,
there existed no right to state or national acceptance, any more than a man has a "right" to be called a "mother."
[If gay rights advocates esteem this a defect, let them draft and pass
a constitutional amendment, such as those which remedied slavery.]

|3.| Even though I attended a University where the GBLU (no trans theretofore) was THE largest and most active group
on campus bar none, and though I worked in Residence Life with several GBLU members, they "never, ever, ever"
argued that homosexuals could or should "marry" as late as 1992, i.e. no popular claim legal or otherwise.
Whence cometh this "right"?

Who argued its existence in the '80s or '70s, not to mention the 1880s, 1870s, 1780s, 1770s. Thus any argument for marriage "equality" as a natural right is ahistorical as well.

Wherein have I gone amiss?

Posted by: Adamakis | Dec 5, 2012 1:36:01 PM

habeas/access to counsel:
Halbert v. Michigan
Martinez v. Ryan

Posted by: pc | Dec 5, 2012 2:30:51 PM

I think you and Tom might disagree about what counts as a "test case."

The cases you list are certainly landmark cases, and certainly important. And the "liberal" label is probably reasonable.

But I suspect that Tom would say that these aren't "test" cases -- they're real defendants who want to get out of jail, and their appellate lawyers had creative, broad-sweeping arguments *on appeal* that helped them. I don't think Roper, Booker and Crawford were recruited to serve as nominal litigants for lawsuits that manufactured to bring about social change rather than the interests of the litigants.

It's a minor quibble. One could certainly argue that there is a "test case" aspect to these cases, but I think Tom is thinking primarily about recruiting plaintiffs to sue for social change, not criminal appellate lawyers who occasionally swing for the fences.

And to respond to other commenters, Tom has his biases, but I think his assessment here is realistic and fair overall.

Posted by: semianonymous | Dec 5, 2012 3:50:42 PM

Due process is "liberal"? Who knew?

Posted by: Gritsforbreakfast | Dec 5, 2012 4:05:49 PM

You raise a good point, semianonymous, although Bush v. Gore and Obamacare were both cases produced by a unique political moment rather than test cases, and one might reasonably assert that the litigation of Prop 8 and over DOMA reflect similar dynamics.

Moreover, though many capital cases on the list reflect the life/death reality of throwing all capital claims against the cert wall and hoping one sticks, others fit the "test case" framing more closely. In particular, the big-ticket SCOTUS work on the Sixth and Eighth Amendments in Blakely and Crawford (both litigated by very strategic SCOTUS advocate Jeff Fisher) and in Graham and Miller (both litigated by very strategic social change advocate Bryan Stevenson) were selected and nurtured as SCOTUS vehicles by the same kind of shrewd advocates who brought cases like Heller and Grutter. (Also, Goldstein leaves out another notable "test case" by not discussing the commerce clause claims in Raich, which arguably came out a "liberal" way if modern liberals are all for big federal powers.)

That all said, I do not take too much issue with your claim that TG's assessment here is realistic and fair overall. But still missing is the reality that (1) the constitutional claims for gay marriage have now been kicking around since Goodridge a decade ago, and (2) absent any evidence that Kennedy or Scalia have plans to retire anytime soon, it is hard to see any reasoned basis for thinking the Court is likely to move left on these matters anytime soon.

Posted by: Doug B. | Dec 5, 2012 5:05:21 PM

In my experience as a defense attorney, politics rarely betrays how one practices criminal law.

As for the justices, seeing as how the CJ was an adamant critic of the exclusionary rule when he was with the US Attorney's office and his general dislike for imposing costs on police for violating rights continues, and the cases you cite to are... pathetic frankly, save for Crawford which they are already beginning to scale back... well, the Court really only has power to make sure the Bill of Rights still means something. If you really think the current Court is doing that- don't expect mass incarceration to end any time soon.

Posted by: nidefatt | Dec 5, 2012 9:50:33 PM

More on "test cases."


Posted by: semianonymous | Dec 21, 2012 10:30:05 AM

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