Dear Mark, Walter, Kenji, Marty, and Judge Posner:
Well it seems as though in addition to granting a stay in the Texas abortion clinic closures case, and agreeing to hear the Texas affirmative action case for a second kick at the can, Texas is also making news this week because its attorney general and governor have each issued statements declaring that state workers can refuse to issue same-sex marriage licenses if doing so is “contrary to his or her religious beliefs.”
Does anyone want to weigh in on whether the religious liberty arguments around resisting same-sex marriage will become a big deal in the coming months? Will next year be spent litigating the spawn of Obergefell and Hobby Lobby?
I also wanted to circle back to re-ask this question we opened the roundtable with—a question that has only increased in salience as the week has wound down: Was this a liberal term for the Roberts Court? Is Anthony Kennedy a liberal? Is he a centrist? Is the chief justice a moderate? Or is this about something more complicated than politics or ideology?
A lot of folks have weighed in on this question in the past few days, among them Ian Millhiser, Scott Lemieux, David Cole, Adam Winkler, and Tom Goldstein. Does anyone have reflections on what looks like a surprisingly good year for the court’s left wing?
It may have something to do with the proper role of the judiciary. Ruth Marcus makes a version of the point you and I discussed when we recorded Amicus on Friday, Walter—that perhaps John Roberts is a conservative, but one who sees a generally more limited role for the judicial branch. Or maybe this zig to left says more about the types of cases that arrive at the court than it does about the justices. In any event, I find myself wondering what each of you thinks about the trend this term—which may be belied by what’s coming down the highway next term. What surprised you and what didn’t about this past week? What do you make of what looks like a real breakdown in judicial tone these past days? And what is the chief justice doing, and is it of a piece with what he has done over his 10-year tenure on the court?
Thanks for playing!