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Court's direction shows importance of past battles, says Schapiro

"Judicial confirmation battles matter.  Sometimes they matter a lot," says Emory Law Dean Robert Schapiro of the U.S. Supreme Court's historic decision in Obergefell v Hodges, which confirmed a constitutional right to same-sex marriage.

Schapiro, an expert in constitutional law who clerked for Justice John Paul Stevens, says the history of past Supreme Court confirmation fights provides evidence of their lasting impact:

In 1987, after a heated confirmation fight, the Senate rejected the nomination of Robert Bork. Much of the confirmation debate focused on Bork's opposition to the Supreme Court's recognition of rights not firmly rooted in the text of the Constitution, such as the right to privacy.   Following Bork's defeat, President Ronald Reagan instead named Anthony Kennedy to the Court.

Today, the significance of that confirmation battle became clear, as Justice Kennedy relied on evolving rights, such as the right to privacy, in casting the deciding vote in favor of a right to same-sex marriage.  Robert Bork died several years ago, but it is unimaginable that Robert Bork would have written an opinion like the one authored by Justice Kennedy in this case.

With today's decision, Justice Kennedy completed his 20-year journey leading the court toward recognition of the rights of gays and lesbians. That journey began in his 1996 decision in the Romer case, and since then Justice Kennedy has written every major Supreme Court opinion on gay rights issues.

In each of those cases, Justice Antonin Scalia has penned a vituperative dissent, criticizing the Court for imposing on the entire country the values of an elite legal culture.  Today was no exception.

Chief Justice Roberts' dissent merely emphasized the general danger of court's intervening in matters that might best be left to the democratic process.  Justice Scalia took pains to point out the particular ways in which this Supreme Court is unrepresentative.

Focusing the personal characteristics of his colleagues, Justice Scalia wrote:  "Four of the nine are natives of New York City. Eight of them grew up in East- and West-Coast states. Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count)."

One could paraphrase Justice Scalia's comments in more patently political terms:  This is a blue-state court ignoring red-state values.  Justice Scalia's reference to the religious affiliation of his colleagues continues that red-state theme:  "Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination."

Justice Scalia's dissent appears aimed to provide fodder for a counterrevolution in the culture wars.

Justice Scalia's language is unusually personal, and it is notable that only Justice Thomas joined his dissent.  The theme of all the dissenters was clear:  the court should leave same-sex marriage to be decided by legislatures.

However, that was exactly the issue on which the Bork confirmation fight turned.  In 1987, the people of the United States insisted on a court that recognizes certain fundamental rights as beyond political control.  There is no reason to believe that the public feels differently today.      

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