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University of the Pacific, McGeorge School of Law - Summer 2013

e d a s m u s Jacobs, like Levine, says she would not be surprised to see Kennedy at the center of both cases. Even if he doesn’t author the opinions, as the court’s traditional swing vote, how he frames the issues and persuades his colleagues will be instrumental in shaping both the makeup of the majority and dissent, as well as the content of the opinions. Pugno agrees. “Justice Kennedy’s role will likely be pivotal,” he says. “The Ninth Circuit’s decision claimed to turn exclusively on a single opinion, written by Kennedy. Justice Kennedy’s view will be extremely important.” Professor Brian Landsberg notes that Justice Kennedy “has an expansive view of liberty and equality. He would be a very important vote in favor of the plaintiffs in these cases.” Civil rights cases have elicited some of the more intense fireworks the court has seen between its liberal and conservative wings. Its flash points are often Justice Antonin Scalia and Kennedy. In Lawrence, Kennedy wrote, “Our obligation is to define the liberty of all, not to mandate our own moral code.” In response, Scalia blasted Kennedy as having “signed on to the so-called homosexual agenda.” Defining States’ Rights It is not clear whether the cases will break down on a traditional liberal/conservative basis. While DOMA is on its face about the rights of gay couples, the case at its heart is at about states’ rights. That is, DOMA said that as a federal matter, the government would not recognize or respect the decisions individual states make with respect to gay marriage. And that flies in the face of the very concept of a limited federal government, which defers to states’ rights, a classic tenet of conservative thinking. “The DOMA case is really anti–states’ rights,” Jacobs says. “I don’t see it as being part of the great civil rights canon.” These cases are unlike the civil rights cases of the 1960s, in which the federal government was a plaintiff, rather than the defendant, Landsberg observes. He worked on some of those when he served as an attorney in the Civil Rights Division of the U.S. Department of Justice. “Justice Kennedy has an expansive view of liberty and equality. He would be a very important vote in favor of the plaintiffs in these cases.” —Professor Brian Landsberg Professor Brian Landsberg, a former attorney in the Civil Rights Division of the U.S. Department of Justice


University of the Pacific, McGeorge School of Law - Summer 2013
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