Sen. Mark Kirk, R-Ill., right, meets with Judge Merrick Garland, President Barack Obama’s choice to replace the late Justice Antonin Scalia on the Supreme Court. (AP Photo/J. Scott Applewhite)
Among the Supreme Court decisions issued last month following the death of Justice Scalia was a per curiamdecision of the Court that reversed an Alabama Supreme Court ruling that did not recognize the validity of a same-sex couple’s adoption in Georgia. A per curiam decision means that the ruling was unsigned by any individual Justice and written “for the Court.” The decision was made prior to full briefing or oral argument, meaning that that the Supreme Court, based solely on the decision below and the petition for review and related pleadings, found obvious error in the lower court decision and rendered what is essentially a summary disposition. There were no noted dissents.
Even (maybe especially) after Justice Scalia’s passing, the United States Supreme Court is, in terms of judicial philosophy, divided. Justice Ginsburg (the “notorious RBG” to her fans) is a hero to the left, and, with near monotonous predictability, will champion liberal causes (abortion, marriage equality and affirmative action) and liberal theories of judicial interpretation (“living Constitution” anyone?). Justices Sotomayor and Kagan are close on her heels, while Justice Breyer, who is marginally more independent philosophically, still votes with the liberal bloc in the vast majority of cases. Conversely, Justices Alito and Thomas, operating through different ideological lenses, anchor the right wing of the Court, with the Chief Justice and Justice Kennedy’s blend of conservatism and pragmatism often providing “swing” votes on key issues.
Given that the full spectrum of judicial thought is clearly represented on the Court, to be summarily reversed usually means that the lower court was not just wrong, but very wrong, and thus unable to find a sympathetic ear from any of the justices of any ideological stripe, even if only in dissent.
In this context, it easy for progressives to gloat about the Supreme Court’s smackdown of the Alabama Supreme Court’s decision and look at that court as hopelessly out of the judicial mainstream. As the NPR report on the case noted:
The U.S. Supreme Court, without hearing oral argument, has unanimously reversed an Alabama Supreme Court ruling that denied parental rights to a lesbian adoptive mother who had split with her partner. The decision is a direct repudiation of an Alabama Supreme Court decision that refused to recognize a Georgia adoption.
What rubes and hayseeds those Alabama judges must be. Not even Justice Thomas or Alito, who dissented strongly in same-sex marriage cases, bought what they are selling. If asked about the case, the Massachusetts legal and academic elite (while sagely stroking their chin) would quickly point out that Alabama elects its supreme court, which risks sacrificing impartial legal reasoning on the altar of political accountability to the Alabama electorate, which is not exactly enamored with same-sex marriage. Such results, it would be argued, show why politically insulated, appointed judges, like those in Massachusetts, are preferable.
But there was a second case last month that was also decided, without oral argument, in a summary per curiam decision. Just as with the Alabama case, the Supreme Court did not require full briefing to render a judgment, and just as with Alabama, there were no noted dissents from the ruling.
That case was Caetano v Massachusetts, which vacated a unanimous decision of the Massachusetts Supreme Judicial Court holding that the Second Amendment did not apply to stun guns and upholding the conviction of a domestic violence victim who, in contravention of Massachusetts law, possessed a stun gun to ward off her abuser. The Supreme Court was ruthless in pointing out that the SJC’s reasoning ignored clear Supreme Court Second Amendment precedent of District of Columbia v Heller and McDonald v Chicago, holding that “the explanation of the Massachusetts court offered for upholding the [stun gun] law contradicts this Court’s precedent.” Even Justice Ginsburg herself, a dissenter in the gun control precedents, did not defend the SJC’s reasoning. Consider that: How much more wrong can a state supreme court be than to have its unanimous decision reversed unanimously? Unfortunately, this is not uncharted territory for the SJC, which had a unanimous decision related to Boston St. Patrick’s Day parade reversed unanimously by the Supreme Court in the 1995 case of Hurley v Irish American Gay, Lesbian and Bisexual Group of Boston, et’ al.
When it comes to imposing liberal views gun control or gay rights, the SJC is just as willing to ignore Supreme Court precedent as the Alabama Supreme Court is with respect to imposing the conservative view on same-sex marriage. I’m no fan of an elected judiciary, but what is the benefit of politically-insulated appointees that merely parrot the political views of the Commonwealth rather than applying the law, and do so to such an extent that not even a single Supreme Court justice can agree with them?
The bottom line is that in both the Massachusetts and Alabama cases represent political, results-oriented judging, rather than application of the law to the facts. A good judge, even one who favors gun control personally, should be capable of reading binding Supreme Court precedent and recognizing that a result contrary to his or her views is necessary to uphold the Constitution. Similarly, a judge opposed to same-sex marriage must recognize that when clear precedent compels her to uphold another court’s ruling under the Full Faith and Credit clause, even when that ruling touches on same-sex marriage, which she disagrees with.
As Governor Baker considers who will fill the vacancies on the SJC, he should strive to find candidates who will apply the law, regardless of the politics. Otherwise, the SJC will continue to be, as it is now, no different in principle than the directly elected supreme court in Alabama that refused to recognize a legal Georgia adoption because it was between a same-sex couple. It will simply be playing the same game for a different team.
Robert N. Driscoll
Robert N. Driscoll is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds. Read his past columns here.
Sen. Mark Kirk, R-Ill., right, meets with Judge Merrick Garland, President Barack Obama’s choice to replace the late Justice Antonin Scalia on the Supreme Court. (AP Photo/J. Scott Applewhite) 
