[This post was originally published by Truthdig.com]
Attention, fans of law and celebrity culture: It's that time of year when--in keeping with the grand Truthdig tradition inaugurated last December--we hand out our annual SCOTUS Awards to the men and women who staff our nation's most powerful judicial tribunal.
By the way, I think we're onto something big here--OK, not Donald Trump big, but pathbreaking (tongue in bulging cheek) all the same. While I'm not aware of any similar awards pageant, the idea of Supreme Court justices as celebrities is catching on, even as a subject of serious academic exegesis. Indeed, earlier this year, Richard Hasen--a professor at the University of California, Irvine, Law School--published "Celebrity Justice: Supreme Court Edition." In the paper, Hasen reported that the number of extrajudicial speeches by sitting justices--news interviews, TV appearances, book tours, lectures delivered at conventions and universities, and the like--had increased by a factor of 850 percent from 1960-1969 to 2005-2014.
As you read through the dispensations below, keep the following point in mind:
Although each Supreme Court term begins in October, these accolades are based on calendar-year performances; thus, court opinions released in December 2014 don't count, but any remarks made during this month's oral arguments--even in cases as yet undecided--are fair game.
So without further ado or apologies, I give you our 2015 winners (I use the word loosely) and the loot they have garnered. As in Little League, everyone gets a prize. But keep in mind, the awards given in this contest are anything but final. Please feel free to scream at your computer screen, throw a figurative (or real) shoe at my Twitter feed (@Blumslaw), curse me to the heavens, propose alternative awards or, if so inclined, applaud the results. Your choice.
The Platinum Chalice for Most Unhinged Justice
This prize (our highest honor) goes to the redoubtable, acerbic purveyor of original intent, a man in perpetual be-robed contact with the Founding Fathers, a legend in his own mind: Antonin Scalia.
Scalia earned his stripes as the court's loosest jurisprudential cannon for his departures from reality last June in the court's rulings on Obamacare (King v. Burwell) and same-sex marriage (Obergefell v. Hodges).
In his dissent in the King case--speaking for himself, Justice Samuel Alito and his mute wingman Justice Clarence Thomas--Scalia sounded more like a character drawn from the pages of Lewis Carroll's "Through the Looking Glass" than a member of the third branch of government. "Words no longer have meaning," he thundered, if the language of the Affordable Care Act is construed as the majority of the court has read it. The decision to uphold the act's marketplace insurance exchanges was "interpretive jiggery-pokery" and "pure applesauce," he admonished.
Scalia's opinion in Obergefell--which was again joined by Thomas--was even more untethered. It began with the implausible assertion that the "substance of today's decree is not of immense personal importance to me." Coming from the pen of someone who in the past has compared homosexuality to murder, polygamy and animal abuse, and equated homosexuals with drug addicts and prostitutes, the claim not only seemed untrue but also could be taken as a clinical sign of dissociation.
Demonstrating that the majority's opinion was in fact of the utmost personal significance to him, he branded the ruling "a naked judicial claim to legislative--indeed, super-legislative--power." Lamenting the end of federalism and states' rights, Scalia charged that a "system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
And then, as if yielding to paranoid fantasy, he added: "Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie." In a boorish footnote, he obsessed, "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of a fortune cookie."
Presaging more madcappery for the court's current term, Scalia registered another tour de force during the oral arguments held this month on affirmative action in Fisher v. University of Texas. After asking whether black students might perform better at "slower-track school[s] where they do well" rather than at top colleges like Texas, Scalia mused that black scientists in fact tend to "come from lesser schools where they do not feel that they are being pushed too hard in classes that are too fast for them."
Well done, Nino (as his friends and admirers call him). You've gone platinum.
The Gold Medal for Keeping the Death Penalty Alive
The award goes to Samuel Alito for his 5-4 majority paean to capital punishment in Glossip v. Gross.
At a time when the civilized world is turning away from the death penalty and in a year when only six American states handed down capital sentences, Alito embraces the ultimate sanction with the same kind of unswerving passion he devotes to the dismantling of public-employee unions.
As I have written previously, Richard Glossip--the plaintiff in the Glossip case--was convicted of a 1997 murder in Oklahoma but may very well be innocent.
Technically, the issue before the court in his case is not his guilt or innocence but whether the state's use of a new and highly controversial three-drug cocktail in its lethal injection protocol violates the Eighth Amendment's prohibition of cruel and unusual punishment.
Alito's majority opinion, joined by the court's other Republican appointees, answered the issue with a ringing endorsement of the protocol, despite the fact that the cocktail had caused prolonged agony in two previous executions. Alito's decision, as Steven Schwinn--an associate professor at the John Marshall School of Law in Chicago--has charged, was an exercise in circular reasoning that established a new set of "Wonderland rules for method-of-execution claims."
"Because capital punishment is legal," Alito wrote, "there must be a constitutional means of carrying it out." Surveying the history of the death penalty, Alito added that while methods of execution (from hanging to electrocution, firing squads, lethal gas and injections) have changed over the years, the Supreme Court "has never invalidated a State's chosen procedure."
Nor was the court about to shift gears in the year of Our Lord 2015 for Richard Glossip. In a ruling that will have profound ramifications for future death-penalty cases, Alito created an almost impossible bar for condemned prisoners to surmount, requiring them to show both that any challenged means of execution "presents a risk that is sure or very likely to cause needless suffering" and that there are "feasible, readily implemented" and less painful alternatives available to the states for putting them to death. In other words, design your own demise, or stay out of court. Either way, you lose.
The Gold Medal for Questioning the Death Penalty
This prize goes to Justice Stephen Breyer for his dissent from Alito's majority Glossip opinion.
Writing for himself and Justice Ruth Bader Ginsburg, Breyer not only would have granted Glossip's petition (which had been filed for him and several other Oklahoma prisoners facing imminent execution), but he would have taken another, far bolder, step calling for a re-examination of the death penalty itself. "[R]ather than try to patch up the death penalty's legal wounds one at a time," he wrote, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."
Breyer's opinion marked the first time since the late Justice Harry Blackman's 1994 dissent in a case from Texas that a sitting member of the court has formally taken an abolitionist stance on the death penalty.
The importance of Breyer's call to action was lost on no one, least of all Scalia, who detonated a particularly juvenile and mean-spirited concurrence that began with the salutation: "Welcome to Groundhog Day." From Scalia's twisted perspective, condemned prisoners like Glossip have no business taking up the court's precious time over and over with doomed objections to being executed. Channeling the spitefulness of Eric Cartman, the schoolyard bully from the hit "South Park" cartoon series, Scalia branded Breyer's handiwork a form of intellectual "gobbledygook."
Somewhat lost in the war of words was Glossip himself. He remains under a sentence of death, although his execution has been stayed, pending a review of the Oklahoma protocol by the state's attorney general.
The Golden Gavel for Expanding Constitutional Rights
The nod goes to the court's perennial swing voter, Justice Anthony Kennedy, for his 5-4 majority opinion on same-sex marriage in Obergefell.
"The nature of injustice," Kennedy instructed in prose that directly conflicted with Scalia's "originalist" theory of constitutional law, "is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
Citing Loving v. Virginia, the 1967 case that invalidated state bans on interracial marriage, Kennedy held that couples seeking to wed have a fundamental right to "equal dignity in the eyes of the law" that only marriage can bestow. In so ruling, he struck a blow not only in support of LGBT rights but on behalf of everyone who believes that the Constitution should be regarded as a "living" document with protections that expand over time.
As historic as the Obergefell ruling was, however, Kennedy earns a gold rather than a platinum trophy because the ruling actually was modest from a technical standpoint. In particular, Kennedy stopped short of holding that sexual orientation generally--like race, national origin and religious affiliation--is a "suspect classification" entitled to the highest degree of judicial scrutiny and protection.
Writing in The Guardian after the opinion was released, columnist Scott Lemieux said it well when he noted: "The refusal to define sexual orientation as subject to heightened scrutiny will lead to unnecessary confusion, and possibly permit federal and state judges to deny LBGT rights claims [in other contexts] that even Kennedy might think should be upheld."
True to Lemieux's forecast, the struggle for LGBT equality has persisted in Obergefell's aftermath in a host of areas, including discrimination in employment and public accommodations, service refusals by florists and photographers, and even attempts by local officials (we're talking about you, Kim Davis) to personally block the issuance of same-sex marriage licenses. So kudos to Kennedy, but much work remains unfinished.
The Blue Ribbon for Court Management
The honor--and I can hear the gasps and groans--is awarded to Chief Justice John Roberts.
In general, I'm no Roberts fan--and for good reason. Since he was appointed to his post in 2005, the court has amassed a profoundly conservative overall track record.
But 2015 was an anomaly as the court navigated a surprisingly liberal course. Even if--as I fully expect--the court reverts to form next year, Roberts deserves recognition for keeping the likes of Scalia and Alito from waging open physical combat against their Democratic counterparts.
Roberts also deserves recognition for producing the majority opinion in King, once again upholding Obamacare. In addition, Roberts wrote the hotly contested 5-4 majority opinion in Williams-Yulee v. Florida State Bar, which held that Florida's ban on the personal solicitation of campaign funds by candidates for judgeships does not violate the First Amendment. Justice Kennedy, who authored the infamous Citizens United decision, refused to join Roberts, and instead drafted a dissent that would have invalidated the Florida law.
It's never easy wearing the crown, and for his trials and tribulations, Roberts has endured fierce criticism from every corner, even calls from the far right for his impeachment.
A Silence Is Golden Wall Hanging
Our unanimous selection for this honor--and it's as automatic as anything in the legal world can be--is Justice Clarence Thomas.
It's been nine years since Thomas asked a question at an oral argument, although he did manage to mutter a brief, barely audible and incompletely transcribed joke during a court session in a Louisiana death-penalty case in 2013.
But don't let the silence fool you. Thomas may seem half-asleep and even disinterested on the bench for refusing to engage in colloquy with the attorneys who appear before the court. However, he's no dummy when he steps off the dais.
To the contrary, he's both politically savvy and a dogged, uncompromising advocate for reworking the court's basic approach to constitutional law. The problem is that he wants to undo the New Deal and take the country and the court back to the era of unregulated capitalism circa the early 20th century.
Although he's the panel's only African-American and was admitted to Yale Law School under its affirmative action program, Thomas is a staunch opponent of affirmative action, likening it to segregation and slavery.
Fortunately, he's had a hard time winning over his colleagues. As a result, he often winds up writing bitter dissents. Last term, he penned a staggering 19 dissents, four more than even the dyspeptic Scalia. With any luck, he will remain an outlier far into the future.
A Genuine Luke Skywalker Lightsaber for Liberal Persistence
Our winner is the Notorious RBG, Justice Ruth Bader Ginsburg.
Now 82 years young, Ginsburg continues to defy medical science (she's beaten both colon cancer and pancreatic cancer), and some might say her own best interests, remaining on duty when nearly anyone else in her tiny shoes would have long ago retired to play miniature golf and work the crosswords in Boca or some other sun-drenched enclave.
But Ginsburg keeps slogging along, crafting liberal majority opinions whenever she's in a position to do so. While 2015 was not one of her most prolific seasons, she made her presence felt.
In Rodriguez v. United States, in a 6-3 vote, she invalidated a search and seizure conducted during a traffic stop, holding that absent reasonable suspicion, police extension of a stop to have a dog sniff for drugs violates the Constitution's shield against unreasonable seizures. She even cajoled Scalia into supporting her opinion. Justices Kennedy, Alito and Thomas cast contrary ballots.
In Arizona State Legislature v. Arizona Independent Redistricting Commission, an important redistricting case, Ginsburg upheld Arizona's use of a bipartisan independent commission to adopt and design congressional districts. The justices split their votes in the appeal 5-4 along strict party lines.
Here's hoping she keeps taking her vitamins or whatever it is that sustains her.
A Big Megaphone for Judging in the Real World
Without hesitation, first place goes to Justice Sonia Sotomayor. She's also a repeat winner in this category.
Unlike any other member of the court, Sotomayor appreciates what it means to grow up and come of age in the United States as a poor, working-class minority woman.
In 2014, in response to the majority's 6-2 holding in Schuette v. Coalition to Defend Affirmative Action that it was constitutionally permissible for Michigan voters to ban affirmative action, Sotomayor penned a masterful dissent. In it, she schooled the majority (including Thomas) on the racial realities of contemporary America, reminding her fellow justices that "race matters," not only because of persistent inequality but "for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away."
In this year's oral arguments on affirmative action in Fisher, Sotomayor continued apace, expressing exasperation with the petitioner's attacks on the "holistic" admissions program used by the University of Texas. If UT's system, which allows it to consider an undergraduate applicant's race, together with myriad other personal factors, does not pass constitutional muster, she wondered aloud whether "any holistic review [could] ever survive."
On those occasions when she found herself in the majority in 2015, Sotomayor also managed to distinguish herself. Among her seven majority opinions, she overturned on Fourth Amendment grounds a Los Angeles city ordinance (City of Los Angeles v. Patel) that had authorized police to force motel owners to turn over guest register information without a warrant and without according the owners an opportunity to contest threatened inspections in front of "a neutral decision maker," such as an administrative law judge. The vote--you guessed it--was 5-4, the Democrats plus Kennedy versus the rest of the gang.
A Nice Warm Pair of Socks for Being the New Kid in Chambers
The honor falls to Justice Elena Kagan, the court's most junior member, appointed in August 2010, and the only current justice with no previous judicial experience before joining the court.
Under the Supreme Court's procedures, the chief justice, or the most senior member in the majority if the chief is in the dissent, assigns a justice in the majority to write the opinion of the court. For the court's junior panelist, the process often means that he or she gets the legal equivalent of table scraps, designated to write few, if any, blockbuster opinions.
Through no fault of her own then, 2015 proved to be a somewhat lackluster year for Kagan, who produced a court low of 11 signed opinions--seven for the majority, two concurrences and two dissents. Her most impressive effort was a 5-4 ruling--United States v. Wong--that liberalized the deadlines for filing lawsuits against the federal government under the Tort Claims Act.
Better fortune next year, Elena. In the meantime, stay cozy this winter with your new footwear. No doubt, your output and input will improve over time.
So there you have them, our 2015 SCOTUS awards.
If you thought this year's ride was raucous and bumptious, wait until next December, when we will hand out a whole new shelf's worth of plaques, medals, trinkets and ornaments in the wake of the 2016 presidential elections. That is, if President-elect Trump keeps the Internet open. So stay tuned ... if you can.