Judicial Deference?

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

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I teach my students that a central issue in constitutional law is when courts should defer to the actions of the government. I thought of this question as I read two cases from the end of the term that raised “culture war” issues: United States v. Skrmetti and Mahmoud v. Taylor.  Although the court tries to provide facially plausible reasoning for its controversial rulings in each case, it is clear that the court in fact chooses when to defer to the government – and when not to defer – simply based on the justices’ own conservative or liberal value judgments about the issues.  

In United States v. Skrmetti, the Supreme Court upheld the Tennessee law prohibiting gender affirming care for transgender youth. Chief Justice John Roberts wrote for the 6-3 majority and stressed the need for the court to defer to the judgment of the Tennessee legislature in deciding this contentious issue. He concluded his opinion by saying that the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Justice Clarence Thomas, in a concurring opinion, said: “Deference to legislatures, not experts, is particularly critical here.”

By contrast, in Mahmoud v. Taylor, the Supreme Court, again 6-3, found that the Montgomery County Board of Education violated parents’ free exercise of religion to deny them notice and the ability to opt their children out of exposure to material that they find objectionable on religious grounds. Strikingly, the court’s majority gave no deference at all to the elected school board that chose the curriculum. Traditionally, this has been an area of great judicial deference to educators.

Why did the conservative justices defer in the former case, but not the latter? Correspondingly, why did the liberal justices defer in Mahmoud, but not Skrmetti? Both involved provisions in the text of the Constitution: the equal protection clause in Skrmetti and the free exercise clause in Mahmoud. Nor did the majority try to defend its ruling on originalist grounds, perhaps given the difficulties of parsing out the original meaning of the Constitution with regard to discrimination against transgender individuals or as to public schools’ choice of material for their curriculum.

The superficial answer to explain the results is that the court used the rational basis review in Skrmetti (that is, whether the state legislature’s decision bore a rational relationship to a reasonable state interest), but strict scrutiny in Mahmoud (that is, whether the school board could prove its actions were “narrowly tailored” to further a “compelling state interest” as least restrictively as possible). But that explanation just begs the question. Of course, if it is strict scrutiny, the court does not defer to the state, while rational basis review is all about deference. These cases – and others this term such as Free Speech Coalition v. Paxton, Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, and Tik Tok, Inc. v. Garland – show, again, at least superficially, the continued great importance of the level of scrutiny in the court’s analysis.

But the court chooses the level of scrutiny based on whether it wants to defer. In Skrmetti, the conservative majority made clear that it wanted to defer to the Tennessee legislature, so it naturally chose rational basis review. In Mahmoud, the majority did not want to defer and so used strict scrutiny. In other words, the level of scrutiny got them to the result they wanted.

Or compare two cases from more than a decade ago. On Tuesday, June 25, 2013, the Supreme Court decided Shelby County v. Holder, where it declared unconstitutional the “preclearance” requirement under of the Voting Rights Act. This provision required jurisdictions with a prior history of race discrimination in voting to get preapproval before significant changes in their election systems. Chief Justice John Roberts wrote the majority opinion, and was joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The court said that Congress had not relied on recent data in extending the preclearance requirement. More importantly, the court said that requiring only some jurisdictions to obtain preclearance violated the principle of equal state sovereignty, that Congress must treat all states the same.

Justice Ruth Bader Ginsburg wrote one of her most iconic dissents, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. She expressed the need for great deference to Congress in its judgment, supported by a voluminous legislative history, that preclearance remained essential to combating race discrimination in voting.

The very next day, Wednesday, June 26, the court decided United States v. Windsor and declared unconstitutional a provision of the federal Defense of Marriage Act which said that for purposes of federal law marriage had to be between a man and a woman. Justice Kennedy wrote the opinion for the court finding the provision to violate equal protection. The four dissenters from the day before in Shelby County – Ginsburg, Breyer, Sotomayor, and Kagan – joined Justice Kennedy in the majority.

Chief Justice Roberts wrote a dissenting opinion, as did Justices Scalia and Thomas, with Justice Alito joining them in dissent. The dissenters stressed the need for deference to Congress and would have upheld the discriminatory provision of the Defense of Marriage Act.

So on Tuesday, the conservative justices rejected deference to Congress, while the liberals urged it. And on Wednesday, the liberals rejected deference to Congress, while the conservatives embraced it. Only Justice Kennedy was in the majority in both cases.

The lesson from these cases – like Skrmetti and Mahmoud – is that sometimes conservative justices want to defer to the political process and sometimes liberal justices want to defer. They just disagree about when.

We should not believe that this is in any way about judicial methodology. That explains the outcome in none of these cases. For all the attention paid to constitutional theory in the last sixty years, it has nothing to do with these decisions. Rather, the results are entirely about the values and views of the justices. Skrmetti and Mahmoud only can be understood as the justices, whether liberal or conservative, taking sides in the culture wars. The opinions they wrote provide justifications for their positions for the parties, for the public, for lower courts, and for the future. But it is just very smart justices and law clerks developing arguments, post hoc, to support their conclusions.

This is certainly not a new or original insight. Many have expressed this in one way or another. Thirty-six years ago, in writing about October Term 1988 for the Harvard Foreword, I concluded: “In other words, constitutional law, now and always, is about values . . . Ultimately, the decisions must be defended or criticized for the value choices the Court made. There is nothing else.”

And yet, as I have read and listened to discussions of the court’s decisions in cases like Skrmetti and Mahmoud, there is the attempt to make them seem based on something other than how the justices have chosen sides in the divisive issues of the culture wars. If Hillary Clinton had won in 2016 and picked three justices, rather than Donald Trump, these cases, as well as a host of others, would have surely been decided differently.

We all know this. We should stop pretending otherwise.