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  • By Bruce Lloyd

An insider looks at the U.S. Supreme Court

If your view of the U.S. Supreme Court was formed in junior high school civics classes, you likely have an image of scholarly justices in the law library combing through dusty tomes in an effort to figure out what the founding fathers had in mind when they drafted the Constitution in the 18th century and applying this to the 21st century. It seems rather remote to the lives of most Americans who did not graduate from law school.

But while there is some truth to this image, the reality of the nation’s highest court is much more tuned in to present day circumstances and public opinion than many who live with the consequences of its legal decisions know. That’s the opinion of Attorney Paul Smith, a nationally recognized expert on civil rights law and Georgetown Law School professor who has argued many cases before the Supreme Court in the course of some 20 appearances.

Smith visited Guam for the first time recently, delivering a presidential lecture at the University of Guam. All three Guam Supreme Court justices were in the crowd as were several Guam lawmakers.

Professor Smith first came to national prominence for his success in arguing the Lawrence v. Texas case in 2003, effectively killing a sweeping Texas sodomy law and paving the way down the road for the Obergefell v. Hodges decision in 2015 establishing same sex marriage as the law of the land.

Most recently, Smith argued Gill v. Whitford before the high court. That case, challenging the ‘gerrymandering’ of elective districts in Wisconsin by legislators to the benefit of the majority party, awaits a decision by the court, expected in mid-2018.

Cases come to the U.S. Supreme Court in many different ways. Smith said the Lawrence case was the result of some truly ham-handed police work in Houston:

“There was actually nothing sexual happening in that apartment at all. These four deputies broke in after they got a false report that there was some kind of disturbance and they ran into these two guys who weren’t doing anything with each other, but they were quite intoxicated, quite angry and very gay. And so the deputies figured, what are we going to do with these guys? We want to arrest these guys. They did arrest them, but they couldn’t think of anything to charge them with other than this sodomy charge, so they basically made up this story that they had witnessed them engaging in sexual activity.”

Actually, the Texas courts upheld the sodomy law and its application in this case all the way up to the Supreme Court. But over the years, public opinion had been quietly shifting on the question of whether laws should apply to consensual sex in one’s own bedroom. Smith was in court for the reading of the decision.

“There was this wave of emotion that swept through the courtroom and there were 20 different attorneys who were weeping, not something you see very often in the Supreme Court’s courtroom.”

Smith said this brought the historic importance of the case home to him. The Smithsonian Institution asked for and got his briefing book and the tie he was wearing the day of the Supreme Court argument in 2003. More important and reflecting changes in public opinion, Smith said he never got a single piece of criticism or hate mail following the decision.

Guam Legislature Speaker B.J. Cruz, Associate Supreme Court Justice

F. Philip Carbullido, Chief Justice Katherine A. Maraman

These cases and the resulting decisions are often the result of long efforts by partisans. The Heller case, decided in 2008 created a individual right to bear arms for personal self-defense, as Smith says, a 180 degree turn from the previous view of the 2nd Amendment. This was the result of a long campaign by the National Rifle Association and changes in the membership of the court rather than some overlooked part of the Constitution.

Smith said the lesson he has learned over the years is that the U.S. Supreme Court doesn’t want to get out of ahead of public opinion and has often avoided cases that are premature. Obergefell v. Hodges would be an example of when the court avoided earlier cases raising the same issues:

“Why were they delaying? Because they knew every year public support for marriage equality was growing very quickly, two or three percentage points a year. Between 2003 and 2015 it changed from a strong majority of the American people opposing marriage equality to a majority of the American people supporting it.”

“For a variety of reasons, the court doesn’t like being a dictator. It recognizes that it occupies the unique position in the democratic system of government that we have and its decisions are, very often, most of the time, highly attentive to what the American public actually likes, believes in and supports. For that reason, a big part of litigating a case before the Supreme Court, such as the gerrymandering case I just litigated, is working to turn public opinion in your favor and to then convey to the court a convincing case that the majority of the American public is on your side.”

All in all, Smith says, the lesson is that, “The U.S. Constitution’s not like the rule book of baseball.”


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