Judges & Judicial Process – Page 21 – Marquette University Law School Faculty Blog

The Wisconsin Supreme Court’s Caperton Moment

Post author:Erik Eisenheim
Post published:July 20, 2015
Post category:Election Law Judges & Judicial Process Public Wisconsin Law & Legal System Wisconsin Supreme Court

The definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal.

The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

Post author:Lisa A. Mazzie
Post published:July 8, 2015
Post category:Civil Rights Constitutional Interpretation Constitutional Law Human Rights Judges & Judicial Process Legal History Political Processes & Rhetoric Public

Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26—Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others.

The Problem with Justice Thomas’s Dignity Argument

Post author:Anna High
Post published:July 2, 2015
Post category:Constitutional Law Judges & Judicial Process Public U.S. Supreme Court

Justice Thomas, in his fervent dissent to the Supreme Court’s decision to invalidate same-sex marriage bans, has some interesting things to say about the concept of dignity. His view of human dignity is that it is innate and therefore inalienable: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.”

The punchline, of course, is that the majority’s reasoning, which relies heavily on a Constitutional reading that sees dignity at the heart of liberty and the Due Process Clause, is flawed – gays and lesbians are not deprived of dignity (and therefore liberty) by their inability to marry, because “the government cannot bestow dignity, and it cannot take it away.” Essentially, Justice Thomas says, as long as the state leaves me alone, my liberty and dignity are intact.

Justice Thomas’s invocation of slavery and internment to illustrate his qualms about the dignity argument arguably undermines the moral force of his point. Moreover, it rests on a narrow and theoretical concept of dignity.