Page 42 - AVN August 2013

LEGALESE | By Clyde DeWitt
A Study in Contrasts Supreme Court’s two senior justices battle over sex
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can be
found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to
alert readers to legal issues warranting advice from
your personal attorney.
One of Justic e
Kennedy’s early
str okes of humanity
was in his 1989
opinion holding that
burning the
American flag is
LEGAL NEWS
protected by the
First Amendment.
”
In case you have been living under a rock, the Supreme Court rocked the law
world—indeed the entire country—this past term with its decision upending
the Defense of Marriage Act (DOMA). The compassionate majority opinion
was penned by Associate Justice Anthony Kennedy; the blistering dissent came
from Associate Justice Antonin Scalia. Indeed, it is not at all that unusual to
find these two justices, who are the longest serving on the current court, to be
at odds in cases involving sex.
For the extent that they find themselves at odds with one another, they have
similarities that would suggest that they likely would be aligned on such
matters: They both were appointed by President Reagan with the blessing of
radical Attorney General Edwin Meese; their nominations both sailed through
the Senate unanimously; and they both are Roman Catholics. (All five of the
currently sitting, Republican-appointed justices are Roman Catholic, a
transparent Republican effort to overturn Roe v. Wade.) Moreover, they both
were nominated when Edwin Meese III, the patriarch of the so-called “Meese
Commission” on pornography, was the attorney general. (The attorney general
of the United States is in charge of the Department of Justice, which carefully
screens potential nominees for the High Court.)
Justice Scalia was appointed in 1986 to replace William Rehnquist, then an
associate justice, when he was elevated to chief justice. In his confirmation
hearings, Scalia had the good fortune of being on the heels of Rehnquist’s rather
contentious Judiciary Committee hearings, thus sailing through with little
commotion and unanimously confirmed by the full Senate.
Justice Kennedy’s nomination, by comparison, was a comedy of errors. He
was the third choice of the Meese/Reagan team. Their first choice was also their
first choice over Justice Scalia, one Robert Bork.
However, Bork was significantly older than Scalia;
and Reagan wanted to leave a lasting footprint on the
high court. Moreover, Bork was then thought to face
a rocky road in confirmation hearings because of, to
put it mildly, his unconventional views on the
Constitution. Indeed, he was the conservative of
conservatives, with his so-called “originalist” views of
the Constitution.
Their prediction that Bork would experience a
rough road before the Senate Judiciary Committee
proved to be correct when he was nominated to the
position that eventually would be Kennedy’s. Bork’s
biggest obstacle was probably his participation in the
famous “Saturday Night Massacre”—the executive
dismissal of independent special prosecutor
Archibald Cox—which was the beginning of the end
of Richard Nixon’s presidency and still fresh in the
minds of Americans. Fifty-eight senators, including
six Republicans, voted against Bork’s confirmation.
Strike One!
The second try from the Reagan/Bork team was
Court of Appeals Judge Douglas H. Ginsburg, of
whom virtually nobody ever had heard. His
nomination, however, was short-lived. He withdrew
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