Faculty Comment on Notable Decisions from the Supreme Court’s 2014 Term

July 02, 2015

Rob Owen, Clinical Orofessor of Law, on Glossip v. Gross:

Rob OwenThe majority opinion in Glossip, with its narrow holding, was less far-reaching and potentially less important than the vigorous exchange of views in the separate opinions concerning the future of the death penalty. While Justice Breyer has often voted to undo death sentences in individual cases, his dissenting opinion (joined by Justice Ginsburg) was wholly unexpected in calling on the Court to reconsider whether the death penalty as such violates the Eighth Amendment, an issue that the Court last addressed in 1976. Justices Breyer and Ginsburg, following in the footsteps of former Justice Blackmun, who famously declared in a 1994 opinion that he would ‘no longer tinker with the machinery of death,’ appear to have concluded that America’s forty-year experiment with the death penalty has failed. The extensive evidence marshaled in their dissenting opinion shows a range of serious problems with how the capital punishment system operates in practice—inordinate delay, racial and geographical arbitrariness, and wrongful convictions—that undermine any deterrent or retributive value the punishment might possess in theory. Interestingly, the same intractable problems with capital punishment identified by Justices Breyer and Ginsburg are the ones increasingly cited by state officials around the country, including those who identify as politically conservative, in choosing to abandon the death penalty.


Andrew M. Koppelman, John Paul Stevens Professor of Law, on Obergefell v. Hodges in Salon:

Professor Andrew Koppelman“The Supreme Court’s ruling Friday that the Constitution protects same-sex marriage was great news [...] [but] for a decision this important, the Court should have been able to do better. The decision relied on the doctrine of ‘substantive due process’—the idea that some liberties, not enumerated in the Constitution, are so important that government can’t take them away.

Substantive due process, however, invites courts to invent new law out of nothing—to declare as constitutionally protected any conduct that they think is important. Opponents of the decision are already claiming that the Court was just making it up, on the basis of the judges’ personal preferences.

There was a better way. Ohio refused to recognize the marriage between James Obergefell and John Arthur. If Obergefell had been a woman, however, there would have been no problem. He was denied the right to marry Arthur because he was the wrong gender. The law is absolutely clear about how to deal with that. It has been clear for decades.

The Supreme Court has long held that laws that discriminate based on sex must be presumed unconstitutional and invalidated unless the government can prove that they can pass rigorous, heightened judicial scrutiny. […] An amicus brief I coauthored developed this claim, and Chief Justice Roberts raised it when the case was argued.”

On King v. Burwell in the New Republic:

“This term's health care case, King v. Burwell […] should never have been brought. Aside from the flaws in the legal arguments—they would have undermined the entire point of the statute on the basis of a dubious interpretation of a few sentences, which is not what statutory interpretation normally does—it deliberately aimed at serious harm to millions of Americans and a body blow to the U.S. economy.”


Eugene Kontorovich on the Court’s turn left in King v. Burwell and Obergefell v. Hodges in Politico Magazine:

Professor Eugene Kontorovich“The leftward turn is not about numbers, but about the qualitative importance and effect of certain major cases, and the extent to which justices “crossed the lines” in these cases in only one direction. Not all cases are created equal, and cases like King v. Burwell and Obergefell v. Hodges are of deep and disproportionate importance. One reason for this is that such “liberal” decisions create new and irreversible realities in ways that conservative ones do not. King only involved statutory interpretation, but it effectively locked in the Obama administration’s gloss on the statutory language: Future presidents will not have the discretion to apply the statute as written. Thus, the court ensured that the Affordable Care Act would not die—cannot die—of its own internal contradictions.”


John O. McGinnis, George C. Dix Professor in Constitutional Law, on King v. Burwell in City Journal:

Professor John McGinnis“Chief Justice John Roberts’s decision in King v. Burwell, upholding the capacity of federal exchanges to provide insurance subsidies, has drawn fire as an unprincipled expression of support for Obamacare. This charge is unfair. It is a principled decision, implementing a well-established, if wrong-headed, theory of statutory interpretation, giving greater weight to what the Court sees as the overriding purpose of legislation rather than its text. Unfortunately, that theory is one that is likely to aid progressivism, because it tends to make judges partners in legislative programs to expand state power.”

On why conservative justices appear to be less united than liberal ones:

“The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence. To provide a very rough description: Justices Scalia and Thomas are both originalists, although even they differ on the weight to assign to precedent. Chief Justice Roberts and Justice Alito are more Burkean as to methodology. History and precedent for them provide a legal pattern that should be followed. Insofar as he has a methodology at all, Justice Kennedy may be a Dworkinian, although unlike Ronald Dworkin he gives more weight to a political morality of liberty as way of creating the right fit for law. In short, for Republican justices, decision making must be mapped on two dimensions with a methodological as well as an ideological axis.”


Jeffrey T. Green, co-director of Bluhm Legal Clinic’s Supreme Court Clinic, on Kingsley v. Hendrickson:

Jeffrey GreenAn important and timely decision for those who are claiming abuse at the hands of law enforcement officials. It means that pretrial detainees can vindicate constitutional rights by showing that their jailers’ conduct was objectively unreasonable, instead of having to prove that the jailers acted sadistically and maliciously.


James E. Pfander, Owen L. Coon Professor of Law on the Supreme Court being characterized as liberal in Armstrong v Exceptional Child Center:

Professor James PfanderMuch attention has been paid to claims that the Supreme Court’s 2014 Term was among the most “liberal” in recent memory.  But these characterizations rest on an arguably mistaken understanding of the Court’s work.  Consider, for example, the fact that the Court took an exceptionally active role in overseeing the lower courts’ application of rules governing the qualified immunity of state and federal officials and the entitlement of petitioners to relief from confinement.  In summarily reversing decisions that upheld the suability of government officials and granted relief to prisoners, the Court can be seen as anything but stereotypically liberal.

Consider as well the Court’s decision in Armstrong v. Exceptional Child Center Inc., an important restriction on the right of individual litigants to enforce rights under federal Medicaid laws and possibly a wide variety of other statutes in which Congress has provided financial support to states in exchange for their agreement to administer programs in accordance with federal standards.  One might characterize the decision as liberal, because the corporate party lost; indeed, many litigants who seek reimbursement under state Medicaid programs can be considered commercially motivated.  But the decision has a potentially dramatic impact on the right of all individuals to enforce rights under other federal spending laws, such as Title IX, which confers rights of gender equality on women who participate in federally funded programs.  In the end, the Court’s approach represents another installment in an evolving hostility to the use of implied rights of action to enforce rights otherwise conferred in federal law.  Denying individuals an opportunity to enforce such rights hardly qualifies as a liberal decision.