In politics, leaked information is rather common.  It always seems that a potential proposal or policy change hits the news while it is still under consideration.  The judiciary, and particularly the Supreme Court, has been mostly immune from this practice.  The lack of solid information on what the Supreme Court has decided in any particular case before the official release of the decision leads those who follow the Supreme Court to try to read omens and clues from a variety of sources — the questions asked at oral argument, which justices have issued opinions from a particular two-week argument session, and sometimes what the justices have said in another opinion.

As we near the end of the active part of this year’s Supreme Court term, this past week saw a flood of opinions (nine opinions) leaving eleven cases to be issued presumably between Monday and July 1.  (At the present time, the Supreme Court will almost certainly be handing down some opinions on Monday, June 22.  It is unlikely that they will hand down eleven opinions on Monday.  The Supreme Court has not yet announced any other days for the next seven days.  Jf the Supreme Court is going to hand down all opinions this week, there will probably be one or two more days.  If not, we will see at least some opinions on June 29, and maybe even on June 30 or July 1.)  There were a couple of interesting Free Speech cases that I will probably post something on during the down time of July, but the big four cases of the second half of the term remain for this last push (fair housing, redistricting, health insurance subsidies, and same-sex marriage).  The big surprise this week, however came in an unexpected case, Kerry v. Din.  When this case came to the Supreme Court, it looked like a case about immigration law and the virtually unreviewable discretion of embassy staff to reject a visa request.  However, this case arose in the context of the spouse of a U.S. citizen and court watchers are now wondering what the discussion of marital rights in this case might hint about the same-sex marriage cases.By way of background, as a general matter, immigration law gives a preference to non-citizen spouses of U.S. citizens.  However, immigration law also contains provisions allowing the State Department to deny a visa to certain individuals with dangerous associations.  In this particular case, the non-citizen spouse had worked for the government of Afghanistan while the Taliban was in charge.  The consular official reviewing the visa application determined that the spouse had engaged in “terrorist activities,” and denied the visa without further explanation.  The citizen spouse sued in federal court, complaining about this denial and the lack of any explanation of why the consular official believed that her husband had engaged in terrorist activities or even which terrorist activities he had engaged in.

The normal tradition in U.S. law is that the decision of the consular official is not subject to review by the courts with very limited exceptions.  The spouse and the lower court however saw this case is different because it implicated the spouse’s marital rights (primarily the right to live with one’s spouse) without a sufficient hearing or explanation.  The Supreme Court ultimately found for the State Department by a 5-4 decision.  However, there was no majority opinion.  Instead, on the  majority side, there was one opinion by Justice Scalia (joined by Justice Thomas and Chief Justice Roberts) and another by Justice Kennedy (joined by Justice Alito).  The dissent was written by Justice Breyer (joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan).  {Note this decision came from February, and it is unclear if this case was originally Justice Scalia’s which would leave four justices — Chief Justice Roberts, Justice Kennedy, Justice Ginsburg, and Justice Kagan — to write opinions in three cases or Justice Kennedy’s which would leave only three justices.  As there are two significant cases, redistricting and health insurance subsidies, remaining from February, the unknown answer to this question could be significant).

Justice Scalia’s opinion took a very narrow view of the right to marry and of marriage.  His opinion rejected any notion that the right to be married also included a right to live with your spouse.  As there was no violation of the citizen spouse’s rights, there was no due process issue.  In his discussion of Din’s liberty interest, Justice Scalia took a dim view of the tradition of finding unwritten fundamental rights.  Even assuming that there are unwritten fundamental rights, including the right to marry, this right would not imply that other rights associated with marriage are equally fundamental.  In finding that the right to reside in the U.S. with one’s spouse was not fundamental,  Scalia noted that, in the late nineteenth century, immigration laws did not give the spouse a right to come to the U.S. if the citizen spouse was the wife (and in fact treated that marriage as a surrender of the wife’s citizenship).  While Justice Scalia and Justice Thomas were never expected to join an opinion recognizing that the right to marry includes the right to marry somebody of the same sex, does the fact that Chief Justice Roberts joined this opinion’s cramped view of the right to marry give any signal of his view on same-sex marriage.

Justice Kennedy’s opinion tried to avoid resolving the question of marital rights (assuming that they did exist) and instead addressed the requirements of due process.   Justice Kennedy found that the denial of the visa cited to the specific provisions of law supporting the denial and that Congress had chosen against requiring the disclosure of additional details.  Given the national security interests implicated by the reason for the denial, the citizen spouse did not have a right to a judicial hearing to explore whether the consular official made a factual error.  While Justice Alito is expected to side with Justices Scalia and Thomas on the same-sex marriage issue, does Justice Kennedy’s refusal to join that opinion and his willingness to assume marital rights in this opinion indicate that he will take a broad view of the right to marry in the same sex marriage cases.

The dissent found what most reasonable people would believe to be true — that the right to marry includes the right to live together after marriage (and, as the citizen spouse has the right to live in the U.S., the right to live together includes the right to live in the U.S.) — and that right to live together is one that the U.S. can’t deny without first granting the spouses the level of due process appropriate to the reason for the denial.  Justice Breyer concluded that the explanation in this case was insufficient because it did not precisely indicate which of the provisions related to terrorist activities was implicated in the denial of visa or the exact finding that the consular officer was making (thereby making it impossible for the two spouses to present additional information to persuade the officer that the conclusion was erroneous).