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Notes -
Lots of big Supreme Court decisions this week, all important in various ways--none, if you ask me, likely to be nearly as impactful as imagined by either their proponents or opponents. But I was struck by a particular take on the religious freedom in commerce case that I saw popping up in a few places today.
Very roughly, here's the deal: American courts can only decide "cases and controversies." This is a procedural thing, basically you need a plaintiff who has actually been harmed in some cognizable way before you can file a lawsuit. Sometimes this means you need someone willing to engage in a little civil disobedience, breaking the law for the express purpose of getting prosecuted. "Plaintiff shopping" is something activist lawyers have been doing for centuries. But to layfolk this can look a little suspicious, in much the way that forum shopping can seem suspicious. In fact American law is mostly indifferent to this kind of gamesmanship, and in some cases we even regard it as a clever thing to do (at least, when our ingroup pulls it off).
The CNN story presents itself as a "just the facts" observation that--hey, here's a party to the facts of this case who claims he didn't do what the record says he did! Isn't that interesting? Gosh, how "concerning," he says! Nobody even thought to contact him in six years!
No one is saying this changes anything, oh, no! Just, isn't it suspicious? (Is that... winking I hear?) Well, regardless, Stewart is only identified by his first name; CNN was able to contact him "through information in court filings." Although, in another funny coincidence,
Now, CNN is only a mid-sized comedy troupe, but it does rival some legitimate news organizations in size and scope. Still, what are the odds, huh?
I've got several friends in my social feeds sharing the story, now, making snide remarks about how Lorie Smith clearly ginned up this whole case out of nothing. Of course, the CNN story doesn't actually say that; it just reminds the reader how suspicious it is for a plaintiff to have, shall we say, gussied up their case.
But the point of this post is not to take the piss out of CNN. Rather, what struck me was one other remarkable coincidence. There is another incredibly famous LGB rights case from the Supreme Court in which the actual facts of the case are completely irrelevant to the holding: Lawrence v. Texas.
That link is to a New Yorker article called "Extreme Makeover." If you're not familiar with Lawrence v. Texas, this was the 2003 SCOTUS case in which Justice Kennedy declared that the government has no business telling you who you can have sex with, as long as it's consensual and you're in the privacy of your home. Much like the later Obergefell case, Kennedy's opinion in Lawrence is packed with paeans to the sanctity of love and the primacy of intimacy--so packed, indeed, that there is essentially no room for coherent legal analysis! But here's the crazy bit:
There was no gay sex in Lawrence. Indeed, there was no gay couple in Lawrence.
The plaintiffs were gay men, charged under Texas' anti-sodomy statute. If you haven't heard the story, you really must read the New Yorker article. But in short, Lawrence and Garner were not together, sexually or otherwise, before or after the case. But since they were the two charged under the anti-sodomy statute, and activist lawyers wanted a case to take to the Supreme Court...
And so:
Perhaps better court-watchers than myself had some idea of what was going on, but I did not know anything about any of this until the New Yorker article ran nine years later. Does it make any difference? Well, maybe it makes you suspicious. Maybe not. Maybe you're thinking, "hmm, isn't tu quoque an informal fallacy?" Well, I'm not really staking a claim either way. I don't like forum shopping, I don't like plaintiff shopping, but I don't think I have anything like a thoroughly-developed account of why--it's more like a general distaste for gamesmanship. But without gamesmanship, American jurisprudence might scarcely exist at all! So I don't know.
But taking CNN's "just asking questions" article at face value, it makes me wonder where all the real gay people are, and why we can't seem to get a gay rights case in front of SCOTUS with parties who aren't being puppeted, Chicago-style. Okay, that's a bit of hyperbole, but still, two points form a line. So long as Congress remains sufficiently split that impeachment and amendments are off the table, the Supreme Court is the last word on American law. Why bother with the democratic process, if you can convince five unelected and unaccountable moral busybodies to make the law instead? All it takes is a bit of theater, apparently.
It doesn't necessarily end well for the puppets, of course--from the New Yorker again:
I don't know what the moral of the story is. Being disillusioned with the legal process is nothing new or insightful. But this was what occurred to me when I read the CNN piece, and saw people sharing it around as proof positive of the Court's perfidy. No, silly people, the Court is not fundamentally deceptive. The Court is always and altogether--albeit willfully, like a moviegoer whose suspension of disbelief is essential to the process, like a wrestling fan whose kayfabe is the lifeblood of the art form--deceived.
I'm not a lawyer, so maybe I'm missing something, but I'm not sure I see your point. The plaintiffs in Lawrence had a harm to bring a case over: they really were charged with sodomy. Is your assertion that the facts of the case didn't support the charge so it was dishonest of them to take a legal strategy of "that shouldn't be illegal" instead of "we didn't do that"? (I don't know, maybe they did try the "we didn't do that" line of defense in a lower court and failed? I can't imagine a case based on the word of a few gay men vs. the word of police officer eyewitnesses going well for the gay men.)
That seems different from the claim that no gay marriage website was ever ordered, so the whole case was actually about a hypothetical harm, which I thought was grounds for throwing a case out, as otherwise the courts would be flooded with hypotheticals and they already have trouble keeping up with the concrete cases.
Reading up about the Lawrence case before, it is the same general idea as Roe vs Wade or the Scopes Monkey Trial: the popular view of what went on is not the actual truth. Both sides in Scopes agreed to the trial, the prosecution because they wanted a test case on teaching evolution in school and the defence because they hoped a big public trial would attract national attention and revive the town's flagging fortunes, so the teacher agreed to be prosecuted:
When Roe vs Wade went to trial, Norma McCorvey had already had the baby and the lawyers were using her as the test case for the real plaintiffs:
There's a lot going on when the sausage is being made that the public never see or know about!
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Not when the plaintiff is seeking an injunction, and can show a likelihood of future injury:
Kenny v. Wilson, 885 F. 3d 280 (4th Cir 2018)
That was not my layman's understanding of "standing", so thanks for the reference.
I've definitely seen people on the left complain about the difficulty/time it takes to get a test case through the courts for things like the recent abortion restrictions in various states. I wonder if this will lead to the left trying to use the same legal tactic to challenge those laws faster (and how that will go for them). Or maybe they already are and it's just not covered.
I am pretty sure that was the basis for the recent successful challenges to "drag ban" laws. And it certainly was re the injunction re the "Stop WOKE Act." Re abortion restrictions, I would think that it would be easy enough to find someone who is pregnant and wants an abortion.
I could see that being difficult because there's no possibility of the case being resolved fast enough to matter for the plaintiff.
A plaintiff can get a court order pretty quickly in such cases. This suit was filed on June 25, 2022, and a temporary restraining order was issued on June 27.
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To the extent that I have a point at all, it's that the jurisprudence of homosexuality--and perhaps, we might infer, many other things--is substantially fictive. I think many people are suspicious of forum shopping, fewer are aware of plaintiff shopping but people do seem to be a bit suspicious of that, too. Most people are aware of civil disobedience, though, and don't necessarily think of it as problematic, even though it does involve ginning up a case rather than addressing the law from a position of organic (so to speak) social interaction. I do think CNN's "just asking questions" article is too coy by half, but as I noted in another reply, I don't have any serious objections to how these cases turned out. Just--if you're (the general you, not you personally) going to raise doubts about one SCOTUS case based on its loose connection to real events, you might not like where that leads (or, more likely, you're just engaged in isolated demands for rigor).
While I don't think SCOTUS mentioned the "chilling effects" doctrine in 303 Creative, the Court has long recognized that the law does actual, rather than hypothetical, harm in cases where the law is clearly intended to "eliminate disfavored ideas" (p. 25).
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