Friday, June 1, 2007

The First Lady of the Court: Sandra Day O'Connor

It has almost been the first full term with both CJ Roberts and Justice Alito. Without a doubt media coverage will reflect upon what these two jurists have done while on the Court and possibly how they have changed the ideological direction of the highest court in the land.

Yet, not much media attention has been earned by the first lady of the USSC since her retirement in July 2005. What has she done since and what is she planning to do?

Apparently, O'Connor has accepted a position as chancellor of the law school of William and Mary College. In addition to her other commitments such as speech and book writing, caring for her husband (who currently suffers from Alzheimer's disease), appeals court hearings, O'Connor also decided to dabble a bit with foreign policy. She served on the committee which was commissioned by Congress to find a "new way forward in Iraq."

She maintains her chambers in the USSC building till this day as all retired justices are allowed to do.

TB, Public Health & Individual Civil Liberties

A man with a particularly dangerous drug resistant strain of TB was recently quarantined by the U.S. government in Denver, CO. The man--Andrew Speaker--was planning to fly to Paris from Atlanta, GA, after having tested positive for TB. He alleges that his doctor only "preferred" that he not fly. Apparently no medical professional had made it explicitly clear to him that he could not fly as he would infect and endanger those flying with him.

The attention that this story has garnered, however, raises an interesting constitutional question about balancing individual liberties with the common good. If in fact Mr. Speaker had been prohibited to fly and if his now apologetic self were not as caring for the health of others, would the U.S. be able to curtail his "right to be left alone" over the concern of possible infection during air travel? What about equal protection? Can the government treat individuals differently based on their health status? It is a point that has been raised before by Professor Lawrence Gostin of the Georgetown Law Center. In analyzing the World Health Organization International Health Regulations, Gostin concludes that sometimes compulsory measures against individuals with infectious diseases may be justified. He says:

"Yet, infectious disease powers curtail individual freedoms, including privacy (eg, surveillance), bodily integrity (eg, compulsory treatment), and liberty (eg, travel restrictions and quarantine)....States should have the power to sanction individuals with dangerous contagious diseases who refuse medical interventions."

It is hard to come to a conclusive answer. Not much precedent exists on the issue. How the justices would perceive the actual issue at hand would also be another question. Would it be an issue of national security? Could they perceive Mr. Speaker as essentially a vessel for spreading a hazardous biological weapon? Or would the issue be a more complicated balancing act, depending upon how serious the actual infection was? Sick people fly on airplanes all the time, but in this case the type of infection mattered.

Gay Marriage & Court Deference to the Legislature

A March 2007 article from Stateline has assessed gay marriage cases in California, Connecticut, and Maryland as "ripe for decision." The legal background of these states regarding same-sex legislation is rather mixed, so it will be interesting to see what the courts in each state decide. Connecticut has a law allowing for civil unions. The California state legislature approved a bill legalizing same-sex marriage, but Governor Schwarzenegger vetoed the bill. Maryland has not passed any legislation allowing legal recognition of same-sex relationships.

Today, New Hampshire passed a
bill allowing same-sex couples to enter into civil unions. It is the fourth state to join Vermont, Connecticut, and New Jersey in offering benefits equal to that of marriage (but without calling the union marriage). Over the last two years it appears that the country has grown increasingly aware and accepting of same-sex relationships. The backlash created by the Supreme Judicial Court of Massachusetts appears to have subsided. Amendments banning same-sex marriage have begun to pass with lower margins of victory. In fact, Arizona rejected one such amendment in the 2006 midterm elections.

In granting same-sex couples a judicial victory the courts from California, Connecticut, and Maryland should remember the backlash caused right after both the Hawaii Supreme Court decision in 1993 and the MA SJC decision in 2003. The Hawaii decision prompted Congress to pass the 1996 Defense of Marriage Act. The MA SJC decision pushed President Bush to call for the Federal Marriage Amendment and incited 11 states to pass constitutional amendments banning same-sex marriage.

What should also be noted by these courts is that court decisions in favor of same-sex marriage did not always garner a negative reaction. When other state courts have deferred to the legislature to create a legal remedy in favor of same-sex couples, this type of deference has led to long term gains for same-sex couples without the backlash. The cases in Vermont and in New Jersey are illustrative. There were no federal pieces of legislation passed against same-sex marriage or president's going on a crusade against same-sex unions.

Only time will tell what strategies these courts choose, but it will be interesting to see whether the turbulent history that same-sex marriage has had with courts is taken into consideration by judges authoring the upcoming decisions.