On Monday, August 31, Gregory Hobbs will step down as Associate Justice of the Colorado Supreme Court, a position he has held for the past nineteen years. I was extremely fortunate to serve as a law clerk for Justice Hobbs for the 2000–2001 term. On the occasion of his retirement from the bench, I wanted to add my voice to the chorus of praise for this extraordinary public servant.
Justice Hobbs was (is!) a water law expert, a historian, a poet, a keen cultural observer, and a man with his finger on the pulse of the communities he served. More than once during my clerkship, he reminded me that the Court’s authority came with profound responsibility: each decision directly affected lives and livelihoods. There was no place for judicial (or judicial clerk) egotism or haughtiness. At a time when the news cycle and daytime television converged to create a culture celebrating sassy, snarky judges, Justice Hobbs was always a jurist of remarkable care and humility.
In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.”
The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.
The New England Law Review is proud to announce its membership selection for Volume 50:
Click on each Associate name above to learn a little about each member.
Congratulations to you all! We look forward to working with you.
One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.
The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”
“The issue in this case is whether the Act’s [the Affordable Care Act] tax credits are available in States that have a Federal Exchange rather than a State Exchange.” King v. Burwell, 576 U.S. __ (2015) (p. 5). The Affordable Care Act (ACA) requires each state to create its own health insurance Exchange, however, if a state refuses to do so, then the Secretary of Health and Human Services (HHS) is authorized to “establish and operate such Exchange within the State.” Sec. 18041(c)(1).” (p. 5). Only sixteen States and the District of Columbia created their own Exchanges, while thirty-four States utilize the federal Exchange administered by the Department of Health and Human Services. (p. 6).
The tax credits, which are authorized by IRC sec. 36B, are allowed to “applicable taxpayers” who obtain health insurance through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care act….” (p. 5). The IRS addressed the availability of tax credits to individuals acquiring health insurance through an HHS Exchange by adopting the definition of “Exchange” as used in an HHS regulation, 45 CFR sec. 155.20, which provided that taxpayers are eligible for a tax credit if they are enrolled in an Exchange which serves the individual market, “regardless of whether the Exchange is established and operated by a State… or by HHS….” (p. 6).
On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment.
Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society. Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)
In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.
Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.
Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in Los Angeles v. Patel, involving the scope of protection afforded business records.
The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine.
Commonwealth v. Sheridan, 25 N.E.3d 875 (2015)
Early one morning, the defendant, Matthew J. Sheridan, was pulled over by Officer Sean Glennon for an unilluminated headlight. While Glennon was conducting the stop, Sheridan appeared nervous, his hands shaking as he “fumbled” around for his license and registration. A second officer, Scott Walker, was patrolling the area, stopped at the scene, and approached the passenger window. Walker looked in the car’s passenger window and saw a small plastic sandwich bag sticking out from under a t-shirt on the floor; the bag appeared to contain about one-ounce of marijuana.
Walker indicated the presence of marijuana to Glennon, who then ordered Sheridan out of the car; a pat frisk revealed a cell phone and $285.00 cash. Glennon handcuffed Sheridan and searched the car, recovering two additional bags of marijuana. Sheridan was transported to the police station where, during booking for possession with the intent to distribute marijuana, the officers seized the cell phone and cash. Glennon proceeded to read the text messages in the cell phone, some of which appeared to be orders to purchase marijuana.
Commonwealth v. Burgos, 19 N.E.3d 843 (2014)
On July 4, 2005, Dana Haywood was shot and killed in the Monte Park neighborhood of New Bedford. Three years later, Rico Almeida contacted the District Attorney’s office about Haywood’s murder. At the time, Almeida was sharing a cell with the defendant, John Burgos, when he found out that the defendant murdered Haywood. Almeida offered to help police by wearing a concealed recording device to get the defendant’s confession on tape. In order to secure a search warrant, police submitted an affidavit, which contained information about police officers’ prior dealings with Almeida. The affidavit also detailed the background of gang involvement between the defendant’s gang, United Front, and Haywood’s gang, Monte Park. Additionally, the affidavit stated that police suspected Haywood’s death was in retaliation for a United Front member’s murder.
A Superior Court judge issued the search warrant, which allowed police officers to provide Almeida a recording device to record a conversation with the defendant. The defendant admitted on tape to being one of the shooters that killed Haywood.
Tagged Article 12, Commonwealth v. Burgos, Commonwealth v. Hearns, Commonwealth v. Tavares, Fifth Amendment, Mass. Crim. Dig., Massachusetts Criminal Digest, Massachusetts Declaration of Rights, Organized Crime, Sixth Amendment, Wiretap Statute