Author: Helen Knowles, Associate Professor, State University of New York at Oswego
Here’s a great open-ended question for stimulating student discussions, online or in the classroom. Should justices of the Supreme Court of the United States be issuing statements, close to a presidential election, that could be viewed as political rather than legal?
The following blog post offers discussion ideas I use to lead students through this subject matter. My goal is to introduce students to useful concepts that help them understand the issue without defaulting to partisan political views.
First Monday in October: New Term
Every year, as a matter of tradition, the Supreme Court of the United States starts its new “Term” on the first Monday in October. This is the equivalent of its academic year.
Since West Wing is making a bit of a comeback, I suggest telling students about the failed First Monday series that ran on CBS for 13 episodes in 2002. There are even some full-length episodes now available for free online.
Though the series failed dismally, it can start a conversation with students on what they know about the Supreme Court. You can then provide important insights about how the Court works and ask students why they think the series was unsuccessful.
New Supreme Court Nominee
First Monday is the first day that the justices hear oral arguments in cases that Term. Typically, “First Monday” does not generate major headlines. But circumstances ensured that Monday, October 5, 2020 would be different.
Nine days earlier, President Trump nominated Judge Amy Coney Barrett to fill a vacant seat on the Supreme Court. This opportunity arose when Justice Ruth Bader Ginsburg passed away on September 18, 2020. Her death had very significant implications.
Since “RBG” became an immensely important pop culture figure in recent years, I always encourage students to tell me what they know about her. It’s a revealing exercise.
The conservative Judge Barrett will be replacing RBG, a liberal icon. This will shift the ideological makeup of the Court in a decidedly conservative direction.
This would be a good opportunity to show the 90-minute CNN documentary RBG. Part of the documentary shows how the Court has changed, ideologically, over the years.
Discussing Tough Topics and Issues
Most commentators immediately focused on Judge Barrett’s views about abortion. Justice Ginsburg spent her career emphasizing the importance of equality and women’s rights.
Abortion is obviously a difficult subject to teach. An interesting exercise is to explain to the students—in basic terms—that the Court, since 1973, has viewed abortion rights as part of a woman’s liberty.
I always tell students that RBG thought this was the wrong way to view those rights. She thought abortion was about equality. It’s interesting to see students’ reactions.
Ask students why they think RBG (and remind them that four women have sat on the Court, five now with Barrett) was the only female justice ever to take this view.
A woman’s constitutional right to obtain an abortion was established by the Court in the landmark 1973 decision in Roe v. Wade. There’s widespread agreement that Judge Barrett would provide a crucial vote to overturn that decision.
Far fewer commentators focused on the impact that Justice Barrett would have on LGBTQ rights. Two justices did something this year that suggested more attention needed to be paid to that impact.
I’d emphasize that what they did was very unusual. Again, I’d go back to First Monday, which failed in part because the subject matter was considered too boring.
The Ruling for Same-Sex Marriage
On June 26, 2015, the Court decided the case of Obergefell v. Hodges. This was a landmark decision. It struck down state laws that prohibited same-sex marriage. The decision therefore paved the way for marriage equality across the country. Legally, same-sex couples were free to get married, and states could no longer make laws prohibiting them from doing so.
Obergefell was the latest in an important line of decisions expanding the rights of the LGBTQ community. In each of the decisions, Justice Anthony M. Kennedy provided the key vote. He also wrote the majority opinions in all those cases. Justice Kennedy retired in 2018. Justice Brett Kavanaugh, who has more conservative views, replaced him.
When teaching these cases, I draw on my expertise about Justice Kennedy. I always find it more than interesting (and the students do too) that several times Kennedy announced the decisions in LGBTQ cases on the same date: June 26.
The Future of Same-Sex Marriage
The ruling in Obergefell was 5-4. Justice Ginsburg was part of the 5-justice majority. Her death, and Kennedy’s retirement, have changed the Court. Supporters of marriage equality have always known their rights are not secure. Changes in the Court’s personnel could threaten their rights.
Does this mean that Obergefell could soon be overturned? On Monday, October 5, 2020, Justices Clarence Thomas and Samuel Alito issued a sharp statement saying, in effect, that Obergefell should be overturned.
That statement came in response to the decision, by the Court, not to hear the appeal of a county clerk in Kentucky who had refused to issue marriage licenses to same-sex couples after the decision in Obergefell. The technical term is that the Court denied “certiorari” in the clerk’s case.
The clerk, Kim Davis, refused to issue the licenses because of her religious opposition to same-sex marriage. She was subsequently sued. A lower court ruled that the lawsuit against her could go ahead. This was the decision that Davis appealed to the Supreme Court.
Almost as soon as the ink was dry on the Obergefell decision, Kim Davis became a kind of icon for conservatives and many Republicans. This is always a good opportunity to bring federalism into the discussion. Ask students to think not only about the religious aspect of her objections, but whether local political decisions should be deferred to by federal courts.
Justices Thomas and Alito agreed with their colleagues. They rejected Davis’s appeal and said the lawsuit could proceed. However, they issued an unusual separate statement questioning the decision in Obergefell. They said that decision “bypassed the democratic process.” They also described Davis as “one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”
Further discussion questions:
- It’s not unusual for justices to write opinions dissenting from denials of certiorari (saying that the Court should have agreed to hear the case). However, it’s unusual to issue the kind of statement that Thomas and Alito did. Should justices refrain from doing this so close to a presidential election? Or close to the nomination/appointment of a new justice?
- Why do you think Justices Thomas and Alito issued their statement? Everyone already knew that they thought Obergefell was wrongly decided (because they dissented in that case). Why issue this statement?
- Who did Thomas and Alito believe was their audience for the statement?
- The S. Constitution says nothing about same-sex marriage. Are Thomas and Alito, therefore, right? Should the issue be decided by the “democratic process” rather than the courts?
- Are there any US Supreme Court decisions that you can’t imagine being overruled? If yes, explain why do you think those decisions are so secure? (A good teaching example is Brown v. Board of Education (1954). Students might want to think about Loving v. Virginia (1967)).
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