“No Gays Allowed”
Sign now reads “We reserve the right to refuse service to anyone who would violate our rights of freedom of speech & freedom of religion.” Tenn. Storefront, USA, June 7, 2018
It is predictable that there will be more such signs. I’m sure that Ginsberg and Sotomayor had this discussion with Breyer and Kagan – at least I hope they did. And if you’re a lawyer or a court watcher and you read this and you say such a conversation would be inappropriate, you have forgotten the history of the court and its true role in our country.
I was told on Facebook the other day that it was “ridiculous” to suggest that this decision was very revealing about the justices, and that I was disregarding the narrowness and temporary nature of the Majestic decision.
I was talking about Kagan and Breyer in particular. To me, as much as anything else, this decision is an explicit example of how the Supreme Court should not be stacked with only appellate lawyers and judges.
The Supreme Court should also have politicians, mayors, and -God forbid – defense lawyers, all of whom actually understand a little bit about what people who do not have, e.g., savings accounts, go through in our society. This was the case with Earl Warren, who had been the governor of California. He brought us Brown v. Bd. of Education (1954).
He understood that the Court exists to protect the Constitution’s ability to mete out equal justice under law. It is not there to find self-satisfaction, self-preservation, nor even as venue for the pursuit of arcane legal strategies that may be finely drawn on paper in the abstract, but are about to fall victim to the vicissitudes of life span of justices or unexpected political disasters. Ultimately, it is about justice for people, not accurately deciding how many angels fit on a particular pin; justice delayed is justice denied.
Part of that responsibility is to consider fully the immediate and long-term societal implications of decisions, i.e., not to merely come to intellectually impressive slices of jurisprudence – even well-meaning ones. Justice Stevens understood this. I’m not sure the present day Court fully does.
This is where life-experience comes into play. The Court has never been so socially narrow in terms of professional background. We are about to experience the consequences.