History > 2014 > USA > U.S. Supreme Court (II)

Justice Ruth Bader Ginsburg in 2013.

She says the court’s majority

fails to understand what women face in achieving equality.

Todd Heisler/The New York Times

  Justices’ Rulings Advance Gays; Women Less So

NYT

4.8.2014

http://www.nytimes.com/2014/08/05/us/as-gays-prevail-in-supreme-court-women-see setbacks.html

Health Care Reform Imperiled

 

NOV. 7, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

Will five Supreme Court justices eliminate essential health care subsidies for more than four million lower-income Americans, based on a contorted reading of four words?

It sounds inconceivable, but that would be the effect of a ruling in favor of the latest legal challenge to the Affordable Care Act. On Friday, the justices announced that they would hear that case, King v. Burwell, a dispute over the meaning of a single phrase — “established by the State” — in the 900-page health-care reform law.

The law, which has been under constant assault since its 2010 passage, has made health-care coverage newly available for between 8 and 11 million people this year alone.

This unprecedented achievement in social policy has improved, and surely saved, many lives. But, to the law’s implacable opponents, it represents nothing more than an oppressive big-government program that must be stomped out.

The opponents lost before the Supreme Court in 2012 in an effort to kill the law on constitutional grounds. Now they are taking aim at the tax-credit subsidies that are central to the success of health reform.

Because one subsection of the law says these subsidies are available on an exchange “established by the State,” the plaintiffs claim there can be no subsidies for anyone living in the 36 states where the federal government established a health exchange after state officials did not.

It is a superficially simple argument, which most federal judges who have considered the claim have rejected. That is because it runs counter to the explicit purpose and structure of the Affordable Care Act. As everyone involved in the law’s creation understood at the time, its success depends on making coverage both required and available to as many people as possible. As a Senate staff member told Vox.com recently, “We certainly wanted every individual in every state, regardless of their federal or state exchange status, to receive the same subsidies.”

In cases where there is a dispute over statutory wording, a well-established legal principle requires courts to defer to a government agency’s reasonable interpretation of the language at issue. In fact, the plaintiffs concede that their strained reading of the law could render several other provisions nonsensical.

The Supreme Court itself has said repeatedly that when construing laws, “we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”

The Affordable Care Act’s challengers have taken the opposite approach and spent years scouring each sentence of the law for any and all possible lines of attack. Their persistence is impressive, but it does not make them right.

A version of this editorial appears in print on November 8, 2014, on page A20 of the New York edition with the headline: Health Care Reform Imperiled.

    Health Care Reform Imperiled, NYT, 7.11.2014,
    http://www.nytimes.com/2014/11/08/opinion/health-care-reform-imperiled.html

Supreme Court Allows Texas

to Use Voter ID Law

 

OCT. 18, 2014

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Saturday allowed Texas to use its strict voter identification law in the November election. The court’s order, issued just after 5 a.m., was unsigned and contained no reasoning.

Justice Ruth Bader Ginsburg issued a six-page dissent saying the court’s action “risks denying the right to vote to hundreds of thousands of eligible voters.”

Justices Sonia Sotomayor and Elena Kagan joined the dissent.

The law, enacted in 2011, requires voters seeking to cast their ballots at the polls to present photo identification like a Texas driver’s or gun license, a military ID or a passport.

Those requirements, Justice Ginsburg wrote, “may prevent more than 600,000 registered Texas voters (about 4.5 percent of all registered voters) from voting for lack of compliant identification.”

“A sharply disproportionate percentage of those voters are African American or Hispanic,” she added, adding that “racial discrimination in elections in Texas is no mere historical artifact.”

Texas officials quarreled with Justice Ginsburg’s math, which was drawn from evidence presented to a trial court. In their brief urging the justices to allow the election to proceed under the 2011 law, they said that trying to determine the number of people the law would deter from voting was a fool’s errand and called the estimate of 600,000 disenfranchised voters preposterous.

Justice Ginsburg also said that the law “replaced the previously existing voter identification requirements with the strictest regime in the country.”

But Justice Ginsburg noted that Texas will not accept several forms of ID that Wisconsin does, including “a photo ID from an in-state four year college and one from a federally recognized Indian tribe.” Last week, the Supreme Court refused to let Wisconsin use its voter ID law in the current election.

Texans who lack a required form of identification cannot easily obtain it, Justice Ginsburg wrote. “More than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest” government office issuing IDs, she wrote, and they must generally present a certified birth certificate to get one.

Birth certificates ordinarily cost $22. The state offers cheaper ones, costing $2 to $3, for election purposes, Justice Ginsburg wrote, but it has not publicized that option on the relevant website or on forms for requesting birth certificates.

“Even at $2, the toll is at odds with this court’s precedent,” she wrote, citing a 1966 decision striking down Virginia’s poll tax.

The Texas law was at first blocked under Section 5 of the federal Voting Rights Act, which required some states and localities with a history of discrimination to obtain federal permission before changing voting procedure. After the Supreme Court in 2013 effectively struck down Section 5 in Shelby County v. Holder, an Alabama case, Texas officials announced that they would start enforcing the ID law.

The law has been challenged by an array of individuals, civil rights groups and the Obama administration.

After a two-week trial in September, Judge Nelva Gonzales Ramos of the Federal District Court in Corpus Christi struck down the law on Oct. 9 in a 147-page opinion, saying it was adopted “with an unconstitutional discriminatory purpose,” created “an unconstitutional burden on the right to vote” and amounted to a poll tax.

Two days later, Judge Ramos entered an injunction blocking the law in the current election. The question for the justices was what to do about that injunction while appeals proceed.

Greg Abbott, the state attorney general and the Republican candidate for governor, told the Supreme Court that Judge Ramos had acted too close to the election and had “unsettled a status quo that had prevailed for 15 months and governed numerous elections without a hitch.”

He accused his adversaries of litigation gamesmanship in not seeking a preliminary injunction while the case was moving forward in the trial court. A ruling on such an interim injunction, he said, would have allowed an orderly appeal.

On Oct. 14, a three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, stayed Judge Ramos’s injunction, saying that a change in voting rules so close to an election would cause confusion among voters and poll workers.

The law has been used in several statewide elections since the 2013 Shelby County decision but never in a federal general election.

Texas has required some form of identification to vote at the polls since 2003. In the decade after, before the new law imposed even stricter requirements, some 20 million votes were cast, Solicitor General Donald B. Verrilli Jr. told the justices, while “only two cases of in-person voter impersonation fraud were prosecuted to conviction.”

A brief filed by the Texas State Conference of NAACP Branches and other groups said confusion at the polls was unlikely under Judge Ramos’s injunction. “Expanding the list of acceptable IDs will not disenfranchise any voter,” the brief said, “since the forms of ID acceptable under the old voter ID system includes all forms of photo ID specified by” the 2011 law.

Justice Ginsburg agreed, adding that Judge Ramos had found “the state’s efforts to familiarize the public and poll workers regarding the new identification requirements” to be “'woefully lacking’ and ‘grossly’ underfunded.'”

“In short,” Justice Ginsburg wrote, “any voter confusion or lack of public confidence in Texas’s electoral processes is in this case largely attributable to the state itself.”

The Supreme’s Court’s order represented the fourth time the court has interceded in the upcoming election in the last three weeks. The moves were in one sense hard to reconcile.

The court allowed Ohio to cut back on early voting and let North Carolina bar same-day registration and counting votes cast in the wrong precinct. But the court also stopped Wisconsin from requiring voters there to provide photo identification.

The theme that did seem to run through the orders was a reluctance to disturb the status quo immediately before an election.
 

Justice Ginsburg said the Supreme Court’s order Saturday morning was different from the ones issued concerning elections in Ohio and North Carolina. “Neither application involved, as this case does,” she wrote, “a permanent injunction following a full trial and resting on an extensive record from which the district-court found ballot-access discrimination by the state.”

    Supreme Court Allows Texas to Use Voter ID Law, NYT, 18.10.2014,
    http://www.nytimes.com/2014/10/19/us/
    supreme-court-upholds-texas-voter-id-law.html

One Step Closer to Marriage Equality

OCT. 6, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

On Monday morning, the first day of the Supreme Court’s new term, the most exhilarating news came not from anything the justices did, but from one thing they didn’t do. Without explanation and against expectations, the court declined to hear any of the seven petitions asking them to reject a constitutional right to same-sex marriage. By choosing not to review those cases, the justices made it possible for same-sex couples in a majority of states to marry.

Since June, three federal appeals courts have struck down marriage bans in Virginia, Indiana, Wisconsin, Oklahoma and Utah, but each ruling was stayed until the Supreme Court had a chance to weigh in. Within hours of the court’s announcement on Monday, marriages began taking place, giving long-overdue legitimacy to thousands of same-sex couples. The right also extends to residents in six other states in the appellate circuits covered by those appeals courts.

Thirty states and the District of Columbia — home to about 60 percent of Americans — could soon allow same-sex marriage. That number is likely to grow after a ruling from the Court of Appeals for the Ninth Circuit, which last month heard arguments over state bans in Idaho and Nevada and is expected to strike them down.

What a difference a decade makes! In 2004 alone, a dozen states passed constitutional amendments banning same-sex marriage; eight went so far as to ban all legal recognition of same-sex couples. The future looked bleak.

But, in June 2013, the Supreme Court struck down the heart of the federal Defense of Marriage Act, which defined marriage as between a man and a woman. The clear and unconstitutional purpose of the law, Justice Anthony Kennedy wrote for the majority in United States v. Windsor, was “to impose a disadvantage, a separate status, and so a stigma” on same-sex couples.

Since the court’s holding in Windsor, more than 40 federal and state courts around the country have relied on its sound reasoning almost unanimously to strike down state bans on same-sex marriage.

Among other things, they have rejected the absurd, baseless arguments that same-sex marriage harms children or undermines heterosexual marriage. In his opinion for the Seventh Circuit Court of Appeals, Judge Richard Posner wrote, “The only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”

It has been astonishing and moving to see the unprecedented speed with which the public and the judiciary have come around on the issue. A majority of Americans now support the right of same-sex couples to marry, compared with about a quarter in 1996. Among those under 30, support is at nearly 80 percent.

But the forces against marriage equality are not going down without a fight. In nearly half the country, gay and lesbian couples are still treated as second-class citizens, denied the respect and dignity — as well as the tangible financial benefits — that come with the ability to marry.

In a speech last month, Justice Ruth Bader Ginsburg, who last year became the first justice to officiate at a same-sex wedding, said that the court is keeping an eye on developments in the lower courts, but that there is “no need for us to rush.” Why not?

Every day that the justices do not declare a constitutional right to same-sex marriage, a child in San Antonio feels confusion and shame that her fathers cannot get married; a woman in Atlanta is prohibited from making emergency medical decisions for her life partner; a man in Biloxi, Miss., is denied veteran’s survivor benefits after his husband dies. The consequences of being treated as inferior under the law are real, immediate and devastating.

Same-sex marriage is among the most important civil-rights issues of our time, and the country is ready to resolve it once and for all. The justices have all the information they need to rule that there is a constitutional right to same-sex marriage. What are they waiting for?

A version of this editorial appears in print on October 7, 2014, on page A28 of the New York edition with the headline: One Step Closer to Marriage Equality.

    One Step Closer to Marriage Equality, NYT, 6.10.2014,
    http://www.nytimes.com/2014/10/07/opinion/
    one-step-closer-to-marriage-equality.html

Supreme Court Delivers

Tacit Win to Gay Marriage

OCT. 6, 2014

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday let stand appeals court rulings allowing same-sex marriage in five states, a major surprise that could signal the inevitability of the right of same-sex marriage nationwide.

The development cleared the way for same-sex marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Gay and lesbian couples started getting married in those states within hours.

The decision to let the appeals court rulings stand, which came without explanation in a series of brief orders, will have an enormous practical effect and may indicate a point of no return for the Supreme Court.

Most immediately, the Supreme Court’s move increased the number of states allowing same-sex marriage to 24, along with the District of Columbia, up from 19. Within weeks legal ripples from the decision could expand same-sex marriage to 30 states.

That means nearly two-thirds of same-sex couples in the United States will soon live in states where they can marry, according to the Williams Institute at the University of California, Los Angeles, School of Law.

Should the court then take up a same-sex marriage case next year or in another term, the justices may be reluctant to overturn what has become law in the majority of American states, said Walter E. Dellinger III, who was an acting United States solicitor general in the Clinton administration.

“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” Mr. Dellinger said. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”

There is precedent for such an approach: The court waited to strike down bans on interracial marriage until 1967, when the number of states allowing such unions had grown to 34, even though interracial marriage was still opposed by a significant majority of Americans. But popular opinion has moved much faster than the courts on same-sex marriage, with many Americans and large majorities of young people supporting it.

Opponents of same-sex marriage expressed frustration with the development. John C. Eastman, a law professor at Chapman University, said it was “beyond preposterous” for federal courts rather than the democratic process to define the meaning of marriage. Supporters of traditional marriage vowed to continue their fight, noting that several federal appeals courts are yet to be heard from.

“The court’s decision not to take up this issue now means that the marriage battle will continue,” said Byron Babione, a lawyer with Alliance Defending Freedom. “The people should decide this issue, not the courts.”

Monday’s orders specifically let stand decisions from three federal appeals courts striking down bans on same-sex marriage in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Those three courts, which together have jurisdiction over six additional states that ban same-sex marriage — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — will almost certainly follow their own precedents to strike down those other bans as well. That would bring the number of states with same-sex marriage to 30.

Other appeals courts are likely to rule soon on yet other marriage bans, including the United States Court of Appeals for the Ninth Circuit in San Francisco, which has jurisdiction over nine states, five of which still have same-sex marriage bans. If that court rules in favor of same-sex marriage, as expected, it will be allowed in 35 states.

The justices had earlier acted to stop same-sex marriages in Utah and Virginia, issuing stays to block appeals court rulings allowing them. Other appeals court decisions had been stayed by the appeals courts themselves.

The nearly universal consensus from Supreme Court observers had been that the stays issued by the justices indicated that they wanted the last word before federal courts transformed the landscape for same-sex marriage. But in recent remarks, Justice Ruth Bader Ginsburg said there was no urgency for the court to act until a split emerged in the federal appeals courts, which recently have all ruled in favor of same-sex marriage.

Justice Ginsburg has often counseled moving slowly, a lesson she said she had learned from the backlash that followed Roe v. Wade, the 1973 decision that established a constitutional right to abortion. “It’s not that the judgment was wrong,” she has said, “but it moved too far, too fast.”

Proponents of same-sex marriage were confident they would have prevailed in the Supreme Court had it agreed to hear one of Monday’s cases. They took the unusual step of urging the justices to step in though they had won in the lower courts. Even as they welcomed Monday’s developments, some expressed frustration that the court had not acted more forcefully.

“The court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places,” said Evan Wolfson, the president of Freedom to Marry.

The justices last agreed to hear a constitutional challenge to a same-sex marriage ban, California’s Proposition 8, in December 2012. But a majority of the justices said in June 2013 that the case was not properly before the court. That move indicated that the Supreme Court wanted to stay out of the fray until more states allowed same-sex marriage.

If the court took pains to avoid a resolution of whether there was a constitutional right to same-sex marriage in the California case, Hollingsworth v. Perry, it set the groundwork for a definitive answer in a second decision issued the same day. That ruling, United States v. Windsor, struck down the part of the federal Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.

The decision was based on a muddle of rationales. In his dissent, Justice Antonin Scalia challenged readers of Justice Anthony M. Kennedy’s majority opinion to follow its “disappearing trail” of “legalistic argle-bargle.”

But lower courts seemed to have no trouble understanding what the Windsor decision had to say about a constitutional right to same-sex marriage. In a remarkable and essentially unbroken line of about 40 decisions, state and federal courts have relied on Windsor to rule in favor of same-sex marriage.

In his own dissent in the Windsor case, Chief Justice John G. Roberts Jr. cautioned that the decision was a limited one, buttressing his assertion with a quotation from the majority opinion.

“The court does not have before it, and the logic of its opinion does not decide, the distinct question whether the states, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage,” he wrote.

“We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples,” he added. “That issue, however, is not before us in this case.”

But lower-court judges seemed inclined to agree with Justice Scalia’s assessment of where things were heading.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” Justice Scalia wrote, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

A version of this article appears in print on October 7, 2014,
on page A1 of the New York edition with the headline: Supreme Court Delivers Tacit Win to Gay Marriage.

    Supreme Court Delivers Tacit Win to Gay Marriage, NYT, 7.10.2014,
    http://www.nytimes.com/2014/10/07/us/
    denying-review-justices-clear-way-for-gay-marriage-in-5-states.html

Denying Review,

Justices Clear Way

for Gay Marriage in 5 States

OCT. 6, 2014

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday denied review in all five pending same-sex marriage cases, clearing the way for such marriages to proceed in Indiana, Oklahoma, Utah, Virginia and Wisconsin.

The move was a major surprise and suggests that the justices are not going to intercede in the wave of decisions in favor of same-sex marriage at least until a federal appeals court upholds a state ban.

The move will almost immediately increase the number of states allowing same-sex marriage from 19 to 24, along with the District of Columbia.

The justices had earlier acted to stop same-sex marriages in Utah and Virginia, issuing stays to block appeals court rulings allowing them. Other appeals court decisions had been stayed by the appeals court themselves.

The all but universal consensus from observers of the Supreme Court had been that the stays issued by the justices indicated that the justices wanted the last word before federal courts transformed the landscape for same-sex marriage. But in recent remarks, Justice Ruth Bader Ginsburg said there was no urgency for the court to act until a split emerged in the federal appeals courts, all of whose recent decisions have ruled in favor of same-sex marriage.

The justices last agreed to hear a constitutional challenge to a same-sex marriage ban, California’s Proposition 8, in December 2012. But a majority of the justices said it was not properly before the court. That move indicated that the Supreme Court may have wanted to stay out of the fray until the number of states allowing same-sex marriage was much higher.
 

There is precedent for such an approach. The court waited until 1967, for instance, to strike down bans on interracial marriage, when the number of states allowing such unions had grown to 34, though it was still opposed by a significant majority of Americans.

    Denying Review, Justices Clear Way for Gay Marriage in 5 States,
    NYT, 6.10.2014,
    http://www.nytimes.com/2014/10/07/us/
    denying-review-justices-clear-way-for-gay-marriage-in-5-states.html

How the Supreme Court

Protects Bad Cops

AUG. 26, 2014

The New York Times

The Opinion Pages | Op-Ed Contributor

By ERWIN CHEMERINSKY

IRVINE, Calif. — LAST week, a grand jury was convened in St. Louis County, Mo., to examine the evidence against the police officer who killed Michael Brown, an unarmed black teenager, and to determine if he should be indicted. Attorney General Eric H. Holder Jr. even showed up to announce a separate federal investigation, and to promise that justice would be done. But if the conclusion is that the officer, Darren Wilson, acted improperly, the ability to hold him or Ferguson, Mo., accountable will be severely restricted by none other than the United States Supreme Court.

In recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.

The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.

The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.

The court has also weakened accountability by ruling that a local government can be held liable only if it is proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This encourages employers to control the conduct of their employees and ensures that those injured will be compensated.

A 2011 case, Connick v. Thompson, illustrates how difficult the Supreme Court has made it to prove municipal liability. John Thompson was convicted of an armed robbery and a murder and spent 18 years in prison, 14 of them on death row, because of prosecutorial misconduct. Two days before Mr. Thompson’s trial began in New Orleans, the assistant district attorney received the crime lab’s report, which stated that the perpetrator of the armed robbery had a blood type that did not match Mr. Thompson’s. The defense was not told this crucial information.

Through a series of coincidences, Mr. Thompson’s lawyer discovered the blood evidence soon before the scheduled execution. New testing was done and again the blood of the perpetrator didn’t match Mr. Thompson’s DNA or even his blood type. His conviction was overturned, and he was eventually acquitted of all charges.

The district attorney’s office, which had a notorious history of not turning over exculpatory evidence to defendants, conceded that it had violated its constitutional obligation. Mr. Thompson sued the City of New Orleans, which employed the prosecutors, and was awarded $14 million.

But the Supreme Court reversed that decision, in a 5-to-4 vote, and held that the local government was not liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the majority, said that New Orleans could not be held liable because it could not be proved that its own policies had violated the Constitution. The fact that its prosecutor blatantly violated the Constitution was not enough to make the city liable.

Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.

When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.

Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?

Erwin Chemerinsky, the dean of the School of Law at the University of California, Irvine, is the author of the forthcoming book “The Case Against the Supreme Court.”

A version of this op-ed appears in print on August 27, 2014,
on page A23 of the New York edition with the headline:
How the Supreme Court Protects Bad Cops.

    How the Supreme Court Protects Bad Cops, NYT, 26.8.2014,
    http://www.nytimes.com/2014/08/27/opinion/
    how-the-supreme-court-protects-bad-cops.html

Justices’ Rulings Advance Gays;

Women Less So

AUG. 4, 2014

The New York Times

By ADAM LIPTAK

WASHINGTON — When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings, she sees an inconsistency.

In its gay rights rulings, she told a law school audience last week, the court uses the soaring language of “equal dignity” and has endorsed the fundamental values of “liberty and equality.” Indeed, a court that just three decades ago allowed criminal prosecutions for gay sex now speaks with sympathy for gay families and seems on the cusp of embracing a constitutional right to same-sex marriage.

But in cases involving gender, she said, the court has never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality.

Justice Ginsburg is not the only one who has sensed that cases involving gay people and women are on different trajectories.

Gay men and lesbians still have a long way to go before they achieve the formal legal equality that women have long enjoyed. But they have made stunning progress at the Supreme Court over the last decade, gaining legal protection for sexual intimacy and unconventional families with stirring language unimaginable a generation ago.

At the same time, legal scholars say, the court has delivered blows to women’s groups in cases involving equal pay, medical leave, abortion and contraception, culminating in a furious dissent last month from the court’s three female members.

Many forces are contributing to this divide, but the most powerful is the role of Justice Anthony M. Kennedy, the court’s swing vote. Legal scholars say his jurisprudence is marked by both libertarian and paternalistic impulses, ones that have bolstered gay rights and dealt setbacks to women’s groups.

A Sacramento lawyer and lobbyist who still lived in the house he grew up in when President Ronald Reagan nominated him to the Supreme Court in 1987, Justice Kennedy is the product of a placid middle-class existence in which most women stayed within traditional roles. Some of his judicial writing, Justice Ginsburg once wrote in dissent, reflected “ancient notions about women’s place in the family.”

But Justice Kennedy, 78, has long had gay friends, and his legal philosophy is characterized by an expansive commitment to individual liberty. He wrote the majority opinions in all three of the court’s gay rights landmarks, which struck down a Colorado constitutional amendment that banned laws protecting gay men and lesbians, a Texas law that made gay sex a crime, and the heart of the federal Defense of Marriage Act.

Last year, he explained in vivid terms why the marriage law drew an unconstitutional distinction by barring benefits for married same-sex couples.

“The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the state has sought to dignify,” he wrote. “And it humiliates tens of thousands of children now being raised by same-sex couples.”

Justice Kennedy writes in a different register in cases about women’s sexual freedom and motherhood, said David S. Cohen, a law professor at Drexel University.

In those cases, Justice Kennedy tends to vote with the court’s four more conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — and to read statutes narrowly in favor of employers and religious freedom. In an article in The South Carolina Law Review surveying “Justice Kennedy’s gendered world,” Professor Cohen concluded that “Justice Kennedy relies on traditional and paternalistic gender stereotypes about nontraditional fathers, idealized mothers and second-guessing women’s decisions.”

Perhaps the most memorable — and to women’s groups the most troubling — passage of this sort came in Justice Kennedy’s 2007 majority opinion in a 5-to-4 vote sustaining the federal Partial-Birth Abortion Ban Act.

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he wrote. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

If Justice Kennedy best embodies the court’s conflicting impulses toward gays and women, Justice Ginsburg is in many ways his opposite. She voted with him in all of the major gay rights cases, but in women’s rights cases she has issued a series of sharp dissents.

Justice Ginsburg, 81, was a prominent women’s rights litigator before she became a judge, overcoming obstacles related to her gender along the way. After attending Harvard Law School as one of nine women in a class of more than 500 and graduating from Columbia Law School, she was turned down by law firms and was refused judicial clerkships because she was a woman. When she became a professor at Rutgers School of Law, she was told she would be paid less than her male colleagues because her husband, also a lawyer, had a good job. She later became the first tenured female professor at Columbia Law School.

Speaking last week at a reception for students and alumni of Duke University School of Law, she said the Supreme Court had made a grave error in June in its Hobby Lobby decision, which allowed some employers to refuse to pay for insurance coverage for contraception based on religious objections. “There was no way to read that decision narrowly,” she said, adding that it opened the door to job discrimination against women.

“What of the employer whose religious faith teaches that it’s sinful to employ a single woman without her father’s consent or a married woman without her husband’s consent?” she asked. The court, she said, “had ventured into a minefield.”

She summarized her dissent in the Hobby Lobby case from the bench, a rare move signaling vehement disagreement, one that happens perhaps four times a term. When Justice Ginsburg issues an oral dissent, it is very often in a case concerning women’s rights.

She dissented again from the bench in 2012 in Coleman v. Court of Appeals of Maryland, a 5-to-4 decision limiting the availability of medical leaves. In his controlling opinion, Justice Kennedy said he saw no “widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave,” while Justice Ginsburg said from the bench that the decision made it harder for women “to live balanced lives, at home and in gainful employment.”

The recent cases concerning women are not directly comparable to those involving gay rights, which considered questions as fundamental as whether states can make gay sex a crime. And gay rights groups say there is much work to be done before gay men and lesbians achieve the legal protections women have long had.

In much of the country, for instance, employers and landlords are free to discriminate based on sexual orientation. The Supreme Court has never recognized heightened constitutional scrutiny for discrimination based on sexual orientation, though it has long done so for ones based on gender.

For now, said Suzanne B. Goldberg, a law professor at Columbia, “the court’s recent gay rights decisions seem to be catching up with women’s rights cases of earlier decades.”

“At the same time,” she added, “we live in a society that now seems more receptive to gay rights than women’s rights generally, so it is disheartening but not surprising to see that reflected in decisions like Hobby Lobby, which failed to see the link between contraception access and women’s equality.”

Justice Ginsburg has suggested that her male colleagues sometimes do not hear a woman’s voice, including her own. In a 2009 interview with USA Today, she said the other justices, who were then all men, sometimes ignored the arguments she made at their private conferences.

“I will say something — and I don’t think I’m a confused speaker — and it isn’t until somebody else says it that everyone will focus on the point,” Justice Ginsburg said.

Between 2006 and 2009, after the resignation of Justice Sandra Day O’Connor and before the appointment of Justice Sonia Sotomayor, Justice Ginsburg was the lone woman on the court, a situation she said she found isolating and disturbing. Now, with the addition of Justice Elena Kagan in 2010, there are three women, and they often vote together.

They did so last month in dissenting from an order allowing Wheaton College, a Christian institution in Illinois, to forgo using a federal form to claim an exemption from a contraception coverage requirement under the Affordable Care Act. Justice Sotomayor wrote the dissent, which accused the majority of failing to protect “women’s well-being.”

Nan Hunter, a law professor at Georgetown University, said the dissent was noteworthy. “For many American women,” she said, “it was no surprise that it was those three justices who felt strongly enough to cry foul.”

A version of this article appears in print on August 5, 2014,
on page A1 of the New York edition with the headline: Justices’ Rulings Advance Gays; Women Less So.

    Justices’ Rulings Advance Gays; Women Less So, NYT, 4.8.2014,
    http://www.nytimes.com/2014/08/05/us/
    as-gays-prevail-in-supreme-court-women-see-setbacks.html