First One @ One First: A Gift for Justice Stevens
Mike Sacks is guest-blogging at ABAJournal.com during his unique U.S. Supreme Court project, First One @ One First, which is to be first in line for politically salient arguments at the high court this term.
The justices might as well have emerged from behind the red curtains this morning singing “Happy Birthday (and Retirement)” to Justice John Paul Stevens.
From the justices’ questions at oral argument this morning in Christian Legal Society v. Martinez, it appeared as if the Supreme Court intended to begin its final sitting of the term by gifting Justice Stevens, the court’s newly minted nonagenarian and retiree-designate, the opportunity to control how this morning’s case will be decided.
At issue in Christian Legal Society was the constitutionality under the First Amendment of the University of California Hastings College of the Law’s policy denying official recognition—and the benefits that come with it—to the Christian Legal Society because of the organization’s requirement that its officers agree with its core religious beliefs, including a bar on homosexual conduct.
Almost immediately, Justice Stevens’ birthday and retirement presents came rolling in. Justice Anthony Kennedy’s came first when he interrupted the opening statement of Michael McConnell, CLS’s counsel and former 10th Circuit judge. Reprimanding CLS for appearing to “want to get away from” the factual moorings of the case stipulated at trial, Kennedy demanded McConnell tell him, “What is the case that we have here?”
Before McConnell could sufficiently answer Justice Kennedy’s question, Justice Scalia jumped in to undermine McConnell’s claim that Hastings’ all-comers policy—that is, that recognized student groups must accept any students who want to join—unconstitutionally discriminated against the viewpoint of a religious organization. Because the all-comers policy “applies to everybody,” Scalia maintained, then the viewpoint discrimination “argument is not available to you.”
So listened Justice Stevens, no doubt pleased with his conservative brethren’s charitable concessions to the high wall between church and state that for years they have made their mission to chip away. But then McConnell threatened to imperil the harmony of Stevens’ party by presenting the Kennedy- and Scalia-friendly argument distinguishing between the unconstitutional exclusion on the basis of status and the constitutional exclusion on the basis of belief.
The birthday boy could sit silently no more. He asked, “What if the belief is that African-Americans are inferior?” When McConnell suggests that a state school could not constitutionally refuse to recognize such a group, Stevens’ best friends move in to expel that belief from the party.
Justice Stephen Breyer posited that McConnell’s framework would be “too complicated for [state schools] to figure out” which organizations should and shouldn’t be funded, and that it would be easier to “let them work off-campus.” Justices Sonia Sotomayor and Ruth Bader Ginsburg then urged “deference to an educational institution” and its preference to support diversity within as well as among student groups.
Justice Breyer joined in with a new guest, a celibate homosexual Christian, who says, “I believe in [CLS’s] principles, I don’t believe in sexual relationships before marriage, and that’s why I want to work for homosexual marriage.”
And then Justice Scalia took off his party hat and stomps, “No, no, no, no.” If the celibate homosexual Christian does not believe marriage is only between one man and one woman, then he cannot be a CLS officer. McConnell agreed.
Until Hastings’ counsel and former Solicitor General Greg Garre stepped up to the lectern, Chief Justice Roberts had only served as the greeter to the party. But all that time, he had just been waiting to give J.P. his birthday present: a merciless assault on Garre.
It’s not that Justice Stevens enjoys such violence—he’s said to be a fan on tennis, baseball, and swimming, not UFC—but such is the court’s peculiarity that the best gift the oldest member can hope for is his youthful superior’s ceding control of a case in which Kennedy has indicated a left turn, or at least faith that the parties can “just work out” their differences.
By the time the party approached its conclusion, the justices stood in their usual spots: Stevens, Ginsburg, Breyer, and Sotomayor on one side; Roberts, Scalia, Alito on the other; Kennedy pacing between them; and Thomas chilling outside by the pool. But rather than let John Paul’s party end awkwardly, the justices pitched in to turn this souring get-together into an all-out rager.
Justice Alito called up his Muslim and Orthodox Jewish friends, who walked in and divided themselves by gender. Breyer had his celibate homosexual Christian friend invite the chess club, a bunch of Turkish speakers, and even more Jews, this time from the conservative and reform denominations. Justice Sotomayor texted La Raza and those radicals from the National Lawyers Guild.
Stevens looked around and saw gathered at his party all of these groups—formed by shared ethnicities, religions, races, genders, and sexual orientations—and wondered if this whole disagreement is worth having under his roof. In his characteristic humility, he requested permission from his own guests whether he may “ask one question”: Did the court really “have to pass on the constitutionality of the all-comers policy?”
Both Garre and McConnell insisted that the court must. That might not have been the answer Justice Stevens hoped for, but it’s the one he must follow. Today may have been his party, but as long as he’s wearing the black robe, he still must perform as his guests demand.
Whatever pangs of restraint Justice Stevens felt at the end of this morning’s oral argument in Christian Legal Society v. Martinez, the Old Man of the court can at least satisfy himself that his most powerful colleagues today presented him with the opportunity to take one last crack at what he’s come to do best: cajoling Justice Kennedy into a controlling liberal coalition.
Updated April 21 to correctly state that McConnell is a former 10th Circuit judge.