It’s not the most important thing about Obergefell—or even the second most important—but it’s noteworthy that rhetoric played a remarkably overt role in the Court’s opinions, particularly in the sharp criticisms leveled by the dissenting justices. I offer a few thoughts below. By way of disclosure, several years ago I clerked for Justice Kennedy, author of the Obergefell majority.
In a rare decision that will earn plaudits from both the defense bar and many government attorneys, Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague. Enjoying a kind of personal vindication, Justice Scalia wrote for the six-justice majority and so got to turn several of his prior dissenting opinions into the holding of the Court. By contrast, Justices Kennedy and Thomas would have found simply that the statute didn’t apply to this defendant. Finally, Justice Alito dissented on grounds partly endorsed by Kennedy and Thomas.
I’ve covered Johnson before. In short, I’ve basically argued that the Court’s repeated interactions with the residual clause are what rendered it vague. That explains why, for nearly 30 years, the allegedly vague residual clause has been able to function on such a massive scale, including during numerous trips to the Court. Only recently has there been any serious interest in finding the residual clause to be vague, for only after the clause had generated repeated judicial opinions did that vagueness come to exist.
So that means that I tend to agree with important features of both the majority and the dissent in Johnson: the majority is right that the residual clause is vague today, but the dissent is right that the vagueness is the judiciary’s own doing. This raises the question: what to do about it?
Today’s King v. Burwell face-off between Chief Justice Roberts and Justice Scalia illustrates a difference in emphasis between these two mavens of judicial restraint.
For Scalia, judicial restraint primarily means adherence to a neutral method of decision-making. If courts scrupulously follow that proper interpretive method, then they are engaged in judicial restraint—no matter the practical consequences.
For the Chief Justice, by contrast, judicial restraint is more about the destination than the journey. If court rulings are having the practical effect of demolishing plans or sowing confusion, then they are unrestrained—no matter their method.
Today, a divided Court resolved Kingsley v. Hendrickson, an important case about excessive force, in the plaintiff’s favor. The precise question in the case had to do with the legal standard for excessive force in the context of pre-trial detention – a significant issue, to be sure, but also a relatively limited one. But the Court’s reasoning appears to extend significantly further and may undermine established standards for excessive force in the much broader context of prison detention. Notably, the United States supported the Court’s legal holding, marking an important instance in which the federal government sided with plaintiffs against prison officers.
This is definitely not the biggest story coming out of the mound of opinions that the Court released today, but I wanted to briefly close the loop on my post from a few days ago on Justice Ginsburg’s concurrence in the denial of certiorari in Hittson v. Chatman. In the post, I suggested that Ginsburg’s Hittson opinion was a signal that Ylst v. Nunnemaker is still good law. But now, just three days later, the Court issued a majority opinion in Brumfield v. Cain that cites and applies Ylst, thereby making fairly clear the point that Ginsburg wrote to make. So, why did Justice Ginsburg write her concurrence?
Today’s orders list provided an especially clear instance of an attempted Supreme Court signal. In Hittson v. Chatman, Justice Ginsburg, joined by Justice Kagan, concurred in the Court’s denial of certiorari in a habeas matter. In effect, Ginsburg told the Eleventh Circuit how to rule in a pending case. But as with many other potential signals, Ginsburg’s message should perhaps be taken with a grain of salt.
Last week, Justice Thomas dissented from the Court’s denial of certiorari in the Second Amendment case Jackson v. San Francisco. Joined only by Justice Scalia, Thomas argued that San Francisco had adopted a firearm regulation substantially identical to the one struck down in Heller v. District of Columbia. The most interesting feature of the case was Thomas’s allegation that the decision below is an example of a much broader pattern. According to Thomas, “lower courts, including the ones here, have failed to protect” the right to bear arms and so have drained Heller of practical effect. If Thomas is right, then Jackson provides an important example of what I’ve called “narrowing from below”—that is, of lower courts narrowing higher-court precedent.