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November 11, 2014 at 05:27 AM
(Bloomberg View) — Today’s word is linkage. For example, Iran is confirming that, in October, President Barack Obama sent supreme leader Ayatollah Ali Khamenei a letter linking ongoing nuclear talks to the two countries’ joint interests in fighting the Islamic State. At the Supreme Court, linkage is going to be just as important. The U.S. Court of Appeals for the Sixth Circuit last week essentially forced the Supreme Court to decide whether there’s a constitutional right to same-sex marriage, by refusing to recognize such a right itself. The next day, the court agreed to hear a potentially fatal legal challenge to the Affordable Care Act.
Taken together, these two cases transform the current Supreme Court term into a blockbuster — and the linkage relationship between them will be all-important.
How does linkage work at the Supreme Court? To begin with, recognize that today’s justices never speak in terms of horsetrading or logrolling from one case to another. I don’t just mean that, when asked publicly if justices might trade votes to support causes held dear by one-another, they all deny it. I mean that, even within the court itself or in private conversation with clerks and confidants, the justices would almost certainly say that no such linkage exists. Denial of linkage across unrelated cases is a kind of justices’ dogma — it would be sacrilegious, not to say heretical, for court insiders to say otherwise.
Nevertheless, linkage may exist at the level of psychology — and the justices know it. Former Justice John Paul Stevens was the master of subtle linkage. In 2008, in an important death penalty and international-law case called Medellin v. Texas, Stevens somewhat inexplicably joined the five conservative justices. Stevens wrote a separate concurrence, agreeing with the majority that the Supreme Court must not apply a decision of the International Court of Justice that purported to block the execution of a Mexican national who hadn’t been informed of his right to speak to a Mexican consular official after arrest. Stevens wrote critically that “this case presents a closer question than the Court’s opinion allows” — yet this opponent of the death penalty, respecter of international law, and then- leader of the court’s liberal faction, nevertheless abandoned the other liberals in the case.
What was going on? The overwhelmingly most likely explanation for Stevens’ opinion in the Medellin case was that it was being decided at precisely the same moment as the landmark case of Boumediene v. Bush, in which the Supreme Court extended constitutional rights to the Guantánamo Bay camp detainees. This case was of the utmost importance to Stevens, who ever since he was a law clerk to Justice Wiley Rutledge in 1948 had been committed to the idea that the government should not be able to avoid habeas corpus by holding prisoners outside the jurisdiction of any U.S. court. Stevens did not want Justice Anthony Kennedy to be subject to the criticism that he had provided the deciding conservative vote in the Medellin decision and the deciding liberal vote in the Guantánamo case. By throwing his lot with the conservatives in the Medellin decision, Stevens didn’t change the outcome in that case — but he did give Kennedy some cover to become a liberal constitutional activist in Boumediene.
Justice Kennedy, usually the court’s swing vote, will be the subject of linkage speculation this term as well. Kennedy is known to be an activist liberal when it comes to gay rights, and the question whether the Supreme Court will affirm the fundamental right to marry is really just a question of whether Kennedy himself is ready to do what he was not ready to do in 2013 when he struck down the Defense of Marriage Act. Yet it’s also well recognized fact about Kennedy that he considers himself a conservative justice. It’s therefore possible to speculate that, if Kennedy issues an important liberal decision — in the case of same-sex marriage, possibly the most important one of his career — he will also try to maintain his conservative bona fides with a corresponding conservative decision.
