History in the making.

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End of an Era at the Supreme Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The end of this term at the U.S. Supreme Court felt like the culmination of an era -- or rather of two eras. Periods in the history of the court tend to form in relation to the great, defining political issues of the day, which eventually make their way to the court in legal guise.

The gay-marriage decision, Obergefell v. Hodges, marks the culmination of a 25-year period of gay-rights decisions that coincided with an era of gay-rights advocacy, starting with the 1969 riot at the Stonewall Inn in New York.

The Affordable Care Act case, King v. Burwell, belongs to a shorter wave of cases, challenges to the social and economic legislation enacted partly in reaction to the financial crisis of 2007-08. This wave succeeded the string of post-Sept. 11 cases involving habeas corpus, international law and the prison at Guantánamo Bay, Cuba. That era ended about the time that the financial crisis and President Barack Obama’s brief Democratic majority redirected national attention to the domestic sphere.

The last days of the court’s term also gave us a hint of what’s coming next: a slog of 5-4 decisions on a number of familiar, recurrent controversial issues that will continue until this court sees generational change, probably in the next presidential term. In 2016, three justices will be at least 80 and one will be 78. The odds seem high that the next president will shape the future of the Supreme Court definitively -- especially if the president gets two terms, as the last three presidents have.

A look back at this era should start with the gay-rights cases, which will certainly enter the history books. One early sign of their importance can be seen in the half-dozen books about the litigation and the lawyers who pursued it that were published in the last year. Supreme Court cases can be fascinating, and books that go into detail about a case or a line of litigation are often worth reading. Anthony Lewis’s “Gideon’s Trumpet” gave birth to the genre -- it’s one of the main reasons I became a constitutional lawyer. But it’s highly unusual for so many books to come out in such a short time about the same line of cases. The reason is simply that when there’s been a historical accomplishment, we want to read a first draft to understand how to allocate credit.

The culmination of the line of decisions written by Justice Anthony Kennedy, which began with Romer v. Evans in 1994 and ended with Obergefell, doesn’t mean that gay-rights litigation is over, of course. There will remain complicated legal and constitutional questions about the interaction between the right to same-sex marriage and the religious liberty of those who continue to object to it. Some of these cases will probably reach the court. But these cases won’t have the same epochal character. They will involve the balancing of two separate rights, the right to marriage and the liberty of conscience. In contrast, the line of gay-rights cases that came before involved the discovery and invention of brand-new rights from the constitutional wellsprings of due process and equal protection.

The line of social and economic policy cases is subtler to notice, but in its own way more basic to the day-to-day history of the court over the last six or seven years. Such periods define not all of the court’s work, but the motifs that preoccupy court-watchers and loom largest in the minds of justices. In the 1950s and ’60s, the predominant motif was race, which also dominated American politics. The ’70s saw a period of grappling with the legal aspects of the Great Society’s social programs, as the court asked such questions as whether citizens deserved due process protections before losing government benefits.

After Ronald Reagan’s election, the ’80s and ’90s saw the Supreme Court revisiting federalism itself, experimenting with whether and how far to roll back the dominance of the federal government that had first emerged from the New Deal. For the first time since Franklin Roosevelt's era, the justices formed two identifiable, strongly predictive voting blocs, with Justice Sandra Day O’Connor acting as the centrist, deciding fifth vote -- the powerful role now occupied by Kennedy.

The Sept. 11 attacks created their own jurisprudential moment, and then came the financial crisis and Obama. It had been a generation since Congress had passed transformative social legislation. It was therefore clear in that moment that the court’s attention would turn to the legal challenges mounted to that legislation.

As it turned out, the two challenges to the ACA became the centerpieces; they obsessed the court and the public who cares about it for almost five years. There may be other, more minor legal challenges to other aspects of Obama’s legacy, but because Obama won’t pass any more major legislation, they’ll have a different character -- like the challenge in the lower courts to the president's unilateral executive action on immigration.

What’s next? Justices Stephen Breyer and Ruth Bader Ginsburg laid down a marker on the term’s last day when they argued that the death penalty should be held unconstitutional. But they understood perfectly well they wouldn’t have the votes; Kennedy shows no sign of being prepared to join them. Expect a period of business as usual, with lots of almost random-seeming 5-4 outcomes, until the next new justice is named. Odds are it won’t be too many years from now.

  1. For the record, although there's plenty of credit to go around, Evan Wolfson argued the first gay-marriage case in Hawaii in 1993. When I was a summer associate at Davis Polk & Wardwell in 1996, I was given the chance to do a small amount of pro bono work for Wolfson’s organization -- and it was obvious that he was at the cutting edge of something that would be a long time coming.

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To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net