Supreme Court

Supreme Court Notes

Some US Supreme Court news this morning:
 
(1) North Carolina has – um, HAD — a law that said registered sex offenders could not go to certain sites on the Intertubes. The Supreme Court struck down that law, saying it violated First Amendment. The decision was 8-0, although there was sharp disagreement about how much states can regulate Internet use.  The opinion is here.
 
(2) The US Trademark Office cannot prevent an Asian-American rock group called “The Slants” from registering that name, even though it might be offensive. Another First Amendment victory.
 
(3) The Supreme Court took a case on political gerrymandering (where the party in power gets to redraw districts that favor themselves). They’ve never struck down a political gerrymandering case before, but some say they just might this time. The case started when Republicans gained complete control of Wisconsin’s government in 2010 for the first time in more than 40 years. It was a redistricting year, and lawmakers promptly drew a map for the State Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities.

In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.

Trump Loses In Federal Court…. Again…. This Time on Sanctuary Cities

A federal district court ruling yesterday bars President Trump from withholding funds from jurisdictions that refuse to cooperate with federal agencies to deport undocumented immigrants, marking his second setback in court on immigration.  The first setback, of course, was his Muslim ban.

Before I get to the substance of this post, first things first:

No, it wasn’t the Ninth Circuit that ruled against Donald — it was a federal district court — one level down.  Yes, the court is within the Ninth Circuit, but it isn’t the ACTUAL Ninth Circuit court itself.  So the next stop isn’t the Supreme Court, it’s the Ninth Circuit.

Also, it wasn’t JUST the Ninth Circuit that ruled against Trump’s Muslim ban; it was a federal district court in Maryland.  And Massachusetts, I believe, as well.

*Sigh*.  He apparently thinks you sue a circuit court when you don’t like a decision.

Look, the opinion was a no-brainer.

Trump’s order, signed Jan. 25, threatened to cut off funding from local governments that refuse to cooperate with immigration authorities. Santa Clara County and the city of San Francisco challenged the order, arguing, among other things, that the president doesn’t have the power to withhold federal money.

They’re right. He doesn’t.

The 49-page ruling focused largely on an all-too-familiar theme for this administration: the consequences of bragging and bluster by Trump and top administration officials.

Just like the judges who ruled on Trump’s travel ban, Judge Orrick homed in on the vast discrepancies between what government lawyers defending the sanctuary cities order argued in court and what administration officials said about it in public.

In court, the government tried to make the case that the order doesn’t actually do anything, at least not at the moment, because the administration has yet to define what exactly a sanctuary city is or threaten any particular jurisdiction with a loss of funds.  It was their way of convincing the judge to toss out the lawsuit on the grounds that no city or county has yet suffered any harm.

The problem with that approach is that administration officials boasted about how the order would force sanctuary cities to their knees, singling out particular places.  So, in court, the Trump lawyers argued that it was essentially an empty shell even though it was portrayed in news conferences, briefings and television interviews as a powerful tool to protect the public from dangerous undocumented immigrants being shielded by wayward cities and counties.

Fine,said, Judge Orrick. If the order is powerless, then surely you won’t mind if I impose this injunction which prevents you from actually doing anything. So that’s what he did.

I somehow don’t think Trump was briefed about that, because he is treating it as a loss.  Which it IS, but it’s just what his lawyers argued.

According to Orrick, the government contended that the order was merely an example of Trump using the “bully pulpit” to “highlight a changed approach to immigration enforcement” — in essence, something much more benign than what Trump and company had described.

The argument was lost on the judge, who ridiculed the government’s position as “schizophrenic.”

“If there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments,” Orrick wrote.

“Is the Order merely a rhetorical device,” he added, “or a ‘weapon’ to defund the Counties and those who have implemented a different law enforcement strategy than the Government currently believes is desirable?”

The ruling continued: “The statements of the President, his press secretary and the Attorney General belie the Government’s argument in the briefing that the Order does not change the law. They have repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the Executive Order.”

Here is the decision.  If you do nothing else, read the last paragraph.

Does Korematsu Provide Precedent For A Muslim Registry?

No.

No, it doesn’t.  Not even a close call.

Let’s just all get on the same page.

This is happening:

And the obvious question is…. would it be constitutional for the government to require citizens to register based on their religion?

The OBVIOUS answer should be NO, and the reason most people instinctively know it would be unconstitutional is to do a thought experiment: substitute “Christian” for “Muslim” and see how that flies.

I’m going to set aside the obvious invidiousness of the proposed registry, as well as the obvious difficulties in enforcing registration.  Instead, I’m just going to focus on Korematsu v. United States, 323 U.S. 214 (1944), the case that Trump surrogates are citing as “precedent”.

Korematsu was the case involving Japanese-American internment during World War II.  Roosevelt ordered that George Takei and his family and other Japanese-Americans leave their jobs, friends, businesses, etc. and report to “camps” for the duration of the war.  These were American citizens, living on the West Coast, of Japanese descent.  It came about as the result of a presidential executive order — Executive Order No. 9066 to be exact.

Fred Korematsu was born in Oakland, California, in 1919, the third of four sons to Japanese parents Kotsui Aoki and Kakusaburo Korematsu who immigrated to the United States in 1905.  When the internment order came down, he refused to comply and went into hiding in the Oakland area. He was arrested on a street corner in San Leandro on May 30, 1942, after being recognized as a “Jap”.  He was tried and convicted of violation of a military order – specifically, the military order for internment given under the authority of Executive Order 9066.

That military and executive orders were challenged and the US Supreme Court upheld the internment of Japanese-Americans, with three dissents.

Korematsu is still good law, so I revisited it. Why did the Supreme Court find such an order to be constitutionally valid?

One reason was precedent.  One year earlier, in a case called Hirabayashi v. United States, the Supreme Court upheld a curfew which applied only to the Japanese.

But addressing the race issue, the majority wrote only this:

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.

Basically, they are saying — “we’re at war”.

The dissent by Justice Roberts was having none of it:

This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States,320 U. S. 81, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

And that is essentially the difference.  We’re not at war with the Muslims — there has been no declaration of Congress to that effect.  Furthermore, there is no “military urgency” now like there was following the bombing of Pearl Harbor (it is more than 15 years after 9/11).  Two good reasons right there.

Then you have something that you didn’t have in Korematsu, which was a case about heritage.  The proposed Muslim ban isn’t about heritage; it is about religion.  “Muslim”, after all, simply means an adherent to the religion of Islam.  Islam knows no national origin or skin color.  Cassius Clay, a black American, didn’t come from another country.  Yet he was a Muslim (which he became Muhammad Ali).

So if this is registry of religious beliefs, — welcome First Amendment.

There’s simply on way in hell this Supreme Court would be cool with registering Muslims.  It would be unanimously shot down, even without overturning Korematsu.

In fact, that would be a nice way to start the Trump presidency.  With a 8-0 loss in the Supreme Court.

Breaking: Big Victory For Voter Rights — No Voter ID In Upcoming NC Elections

NC voter ID law will NOT be enforced in fall election after the U.S. Supreme Court denies stay request (in a 4-4 split — obviously, had Scalia lived, it would have been a loss for voting rights advocates, but he didn’t so……)

The stay was a request by Republican Gov. Pat McCrory and state officials to delay a permanent injunction blocking provisions in a 2013 voting law. The 4th U.S. Circuit Court of Appeals struck down several parts of the law last month, saying they were approved by legislators with intentional bias against black voters more likely to support Democrats.

The Supreme Court decision means voters won’t have to show one of several qualifying photo IDs when casting ballots in the presidential battleground state. Early voting also reverts to 17 days.

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Breaking: 4th Circuit Overturns Lower Court; Finds That GOP “Intentionally” Passed “Discriminatory” Voting Rights Law

The United States Court of Appeals for the Fourth Circuit invalidated North Carolina’s stringent new voting restrictions, holding that the law violates both the United States Constitution and the Voting Rights Act. The North Carolina measure, the Fourth Circuit held, has a discriminatory impact on black voters, impermissibly burdening their voting rights under the VRA. More boldly, the court also held that the law was enacted with discriminatory intent, designed by the Republican legislature to curb black voting rights in violation of the 14th Amendment’s Equal Protection Clause. This dual finding of discriminatory impact and intent makes the Fourth Circuit’s decision the boldest judicial rejection of voting restrictions in years.

As the court explains, North Carolina passed its omnibus voting bill, SL 2013-381, almost immediately after the Supreme Court freed the state’s voting laws from federal “preclearance”—meaning that after nearly 50 years under supervision, the state was finally free to change voting laws without federal oversight. The legislature promptly “requested data on the use, by race, of a number of voting practices.” And “upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected black voters.” The new law created draconian requirements for valid voter ID, eliminating those IDs most commonly used by black voters; cut back early voting and killed same-day registration; eliminated preregistration for teenagers; and eliminated out-of-precinct voting for voters who accidentally showed up at the wrong precinct in the correct county.

Every single one of these restrictions disproportionately burdened black voters; indeed, as the Fourth Circuit writes, SL 2013-381 seemed to “target African Americans with almost surgical precision.” (Meanwhile, there is essentially no evidence that voter fraud ever occurs in North Carolina.) The evidence that the legislature enacted SL 2013-381 for precisely this purpose—to hamper black voting rights—is almost overwhelming. Indeed, the state even acknowledged that it had eliminated one early voting day, a Sunday, because it was a traditional “souls to the polls” day, when black voters were provided transportation from church to the polls. “Counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic,” the legislature said—so, in response, it did away with one of two days of Sunday voting. This, the Fourth Circuit writes, is “as close to a smoking gun as we are likely to see in modern times”:

The State’s very justification for a challenged statute hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.

But really, the North Carolina legislature littered its voting law with almost comically obvious smoking guns. Black voters, the court explains, are also more likely to utilize same-day registration, preregistration, and out-of-precinct voting. The legislature knew this when it enacted SL 2013-381; it had “requested a racial breakdown” of different voting methods, and, as the Fourth Circuit notes, discovered:

The legislature’s racial data demonstrated that, as the district court found, “it is indisputable that African American voters disproportionately used [same-day registration] when it was available.” … [I]n-person assistance likely would disproportionately benefit African Americans. SL 2013-381 eliminated same-day registration.

And on and on it goes—each restriction, the court persuasively explains, was crafted to crack down on voting methods favored by black voters. These “seemingly irrational restrictions unrelated to the goal of combating fraud,” the Fourth Circuit writes, can only be explained by discriminatory intent. And the legislature’s highly suspect behavior in enacting SL 2013-381—rushing it through, on party lines, as soon as it was freed of federal oversight—raises serious constitutional red flags. “Indeed,” the court writes, “neither this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise.”

As a result of the law’s discriminatory intent and impact, the Fourth Circuit concludes, each of its central provisions must be invalidated under the Equal Protection Clause and the VRA.

It is a very hard rebuke to the lower court.  Now, I know Judge Schroeder, the lower court judge who found that there was no discrimination intended when North Carolina passed its new voter laws.  He is a thorough and competent judge, and certainly no racist.  But not being a Southerner, he just doesn’t see certain things which the older Southern gentlemen of the Fourth Circuit did see.  As the Fourth Circuit wrote, “the [lower] court seems to have missed the forest in carefully surveying the many trees.  This failure of perspective lef the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

This is a HUGE win for North Carolina (the people, not the current government) with national repercussions.

It will no doubt go to the U.S. Supreme Court, where, with a 4-4 split, it will probably be upheld.

The 83 page opinion is below:

Trump v. Ginsburg: The Rare Occasion Where Trump Is Right

Associate Supreme Court Justice Ruth Bader Ginsburg is no fan of Trump. She has launched criticisms of him in interviews with three news organizations.She told CNN Wednesday:

He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.

And earlier this week, Ginsburg told The New York Times:

I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.

She even mused to the newspaper that “it’s time for us to move to New Zealand” if Trump were elected.

Last week, Ginsburg told The Associated Press, in another interview, that she didn’t “want to think about … [the] possibility,” of a Trump presidency, “but if it should be, then everything is up for grabs.”

Trump’s initial response also came to the Times:

I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly. I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.

Yup.  While I don’t think it is a “disgrace to the court”, nor is an apology necessary, it IS highly inappropriate.  It just isn’t done.  We all know that Supreme Court justices have political opinions — they are people, after all — but it damages the appearance of impartiality of the Court when they weigh in.

Ginsburg certainly knows this.  So why would she do it?

I think I know.

She’s not planning on staying with the Court.  She probably was going to resign at the end of the last term, but seeing as how the Senate was balking at filling the late Scalia’s seat, she probably didn’t want to make the Supreme Court have two vacancies during the election year (which would probably cause some people doubtful about Trump to vote for him anyway on that one issue alone).

So she’s speaking out.  Big deal, she’s thinking.  I’m getting out as soon as Hillary is elected.

That’s my theory.

And yes, while I agree with Trump (and the New York Times) that Ginsburg is doing something inappropriate, Trump is, as usual, taking it too far:

Oh God.  His complaint isn’t that she made a political statement, but that it was a DUMB one ABOUT HIM.  And then to question her mind?  Oy.  And so, Trump, who has a valid point for once, squanders it away by acting like a giant baby.

SCOTUS Strikes Down Oppressive Abortion Restrictions

This morning, the Supreme Court struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.

Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposed strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

I’m not surprised by the outcome, nor am I surprised by swing justice Kennedy joining the “liberals” on the court.  Frankly, the Texas restrictions were NOT intended to support women’s health.  If you saw who proposed those restrictions (longtime Texas anti-abortion legislators) and listened to their rhetoric, “health of women” was a sham rationale.  Their real objective was to make abortion clinics so regulated that they could not afford to make the required changes, and eventually close down.  In fact, to date, twenty abortion clinics have closed down under those regulations.

So, yes, a victory, and it would have been a victory even if Scalia was alive and on the court.  But it does underscore the importance of the election and who gets to pick the next justices.

Breaking: Scotus Decisions

Three big cases remain outstanding on the SCOTUS docket: one on abortion, one on immigration, and one on affirmative action.  The last one was just handed down moments ago.

FISHER v UNIVERSITY OF TEXAS

Facts of the case

In 1997, the Texas legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. After finding differences between the racial and ethnic makeup of the university’s undergraduate population and the state’s population, the University of Texas decided to modify its race-neutral admissions policy. The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission.

Abigail N. Fisher, a Caucasian female, applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher’s application.

Fisher filed suit against the university and other related defendants, claiming that the University of Texas’ use of race as a consideration in admission decisions was in violation of the equal protection clause of the Fourteenth Amendment. The university argued that its use of race was a narrowly tailored means of pursuing greater diversity. The district court decided in favor of the University of Texas, and the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision. Fisher appealed the appellate court’s decision.

Question

Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?

SCOTUS Decision

Affirmed. 4-3.

This is decidedly a compromise; Kennedy’s opinion says that UT must continue to reassess its need for any kind of race-conscious affirmative action, and that it is justified only by a robust record showing that other means of addressing diversity concerns have failed. But there is also a pretty meaningful shift away here from the trajectory of Fisher I. That case faulted the lower court for giving too much deference to the judgments of the university; this decision affirmatively states that “Considerable deference is owed to a
university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

From end of majority opinion: “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”

This is, I think, the first time Kennedy was on the pro-affirmative action side.

Strong dissent from Alito.which begins :””Something strange has happened since our prior deci­sion in this case…”.  50 page dissent is being read by Alito.

SCOTUS had the Fisher case in 2013. One suspects Roberts and Alito now wish they hadn’t punted it back to the 5th Circuit.  When Fisher I came through, this happened:

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The peanut gallery:

UNITED STATES v TEXAS

Facts of the case

In June 2012, the Department of Homeland Security (DHS) implemented the Deferred Action for Childhood Arrivals (DACA) program, along with criteria for determining when prosecutors can choose not to enforce immigration laws under DACA. People who qualify for DACA may apply for work authorization. In 2014, DHS established a similar process for parents of citizens and lawful permanent residents as well as expanding DACA by making more people eligible. The new program was known as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

Texas and other states sued to prevent the implementation of DAPA and argued that it violated the Administrative Procedure Act because it had not gone through the notice-and-comment process, and because it was arbitrary and capricious. The states also argued that DAPA violated the Take Care Clause of the Constitution, which clarifies the President’s power. The district court held that the states had standing to file the suit and temporarily enjoined the implementation of DAPA because the states had established a substantial likelihood of success on the notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed and held that the states had standing as well as a substantial likelihood of success on their substantive and procedural claims.

Question

  1. Do states that provide subsidies to persons who are granted deferred action have standing to sue because the new guidelines will lead to more persons being eligible for deferred action?
  2. Is the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program arbitrary and capricious?
  3. Did DAPA violate the Administrative Procedure Act by failing to go through the notice-and-comment procedure?
  4. Does DAPA violate the Take Care Clause of the Constitution?

SCOTUS Decision

The per curium opinion in its entirety reads “The judgement is affirmed by an equally divided court”

This means that Texas has standing and the case can go forward.  When decisions are tied, this means that it has precedent in that circuit only and not nationwide.

While some outlets are reporting that the court’s action essentially kills the programs, it’s more accurate to say that it blocks them presently while their future remains uncertain. (It also has no effect on Obama’s original deferred action program for DREAMers announced in 2012.)

Since the split left in place a nationwide injunction that was unilaterally issued by a federal judge in the Fifth Circuit on Obama’s immigration programs—Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Childhood Arrivals (DACA)—that injunction will almost certainly invite legal challenges in other circuits.

It is a loss, to be sure, but not a permanent one.

And although not one of the big three, the Dollar General case caught my eye.

DOLLAR GENERAL v MISSISSIPPI BAND OF CHOCTAW INDIANS

Samantha Bee can give the background:

Facts of the case

Dollar General Corporation (Dollar General) operates a store on land held in trust for the Mississippi Band of Choctaw Indians (Tribe). The store operates pursuant to a lease and business license agreement with the Tribe. In the spring of 2003, John Doe, a 13-year-old member of the Tribe alleged that he was sexually molested by the store manager, Dale Townsend, while he was working at the store as part of an internship program that the Tribe runs and in which the Townsend agreed to participate.

In 2005, Doe sued Townsend and Dollar General in tribal court. Both defendants moved to dismiss the case for lack of subject matter jurisdiction, and the tribal court denied the motions. The Choctaw Supreme Court upheld the denial of the motions by finding that the U.S. Supreme Court’s decision in Montana v. United States, which allowed a tribe to regulate the activities of nonmembers who enter into a consensual arrangement with the tribe, applied in this case. The defendants then sued the Tribe in federal district court and sought injunctions to stop the suit in tribal court. The district court granted the injunction for Townsend but not for Dollar General because the company had failed to carry its burden to show that the Montana decision did not apply in this case. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question

Does a tribal court have jurisdiction to adjudicate civil tort claims against nonmembers?

SCOTUS Decision

The per curium opinion in its entirety reads “The judgement is affirmed by an equally divided court”

Meaning the child molester cannot be tried in the Indian court, but Dollar General can.

Supreme Court Cases We’re Watching

It’s getting close to the end of the Supreme Court term, and this is when controversial cases start coming out.

Although a few cases were handed down today, they weren’t the ones on my particular radar.  The ones of national import, I believe, are:

Fisher v. University of Texas at Austin (argued December 9, 2015).  This case, a challenge to the university’s consideration of race in its undergraduate admissions process, is on its second trip to the Court.  In 2013, the Court sent the case back to the lower courts for a more critical look at whether the university really needed to consider race to achieve a diverse student body.  After the Fifth Circuit once again upheld the policy, the Court agreed to weigh in.  Unlike some of the Court’s other high-profile cases this Term, no one expects the Court to deadlock:  Justice Elena Kagan is not participating, which in the wake of Justice Antonin Scalia’s death leaves the Court with just seven Justices to decide the case.

Whole Woman’s Health v. Hellerstedt (argued March 2, 2016).  This is a challenge to the constitutionality of two provisions of a Texas law regulating abortion in that state.  One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers.  Texas contends that these new laws are constitutional because they were intended to protect women’s health, while the challengers argue that the law was actually intended to close most clinics and therefore limit women’s access to abortions.

United States v. Texas (argued April 18, 2016).  This case is a challenge to an Obama administration policy, announced in November 2014, that would allow some undocumented immigrants to apply to stay in the country and work legally for three years.  Before the policy could go into effect, Texas and a large group of other states went to court to block its implementation, arguing that the administration lacks the authority to issue a policy like this.  But before the Supreme Court can weigh in on that question, it will also have to agree that the states have the legal right, known as “standing,” to challenge the policy at all; the lower courts ruled that they did, because at least Texas would incur additional costs from the undocumented immigrants who would become eligible for driver’s licenses if the policy goes into effect.

So…. basically, affirmative action, abortion, and immigration.  Hot topics in an election year.

None of that came down today.  In fact, the biggest news out of the Supreme Court this morning may be a case that they refused to take up:

The Supreme Court on Monday refused to hear a Second Amendment challenge to a Connecticut law banning many semiautomatic rifles. The law, enacted in 2013 in the wake of the mass shooting at Sandy Hook Elementary School in Newtown, Conn., made it a crime to sell or possess the firearms, which critics call assault weapons.

The decision not to hear the case, not long after the mass shooting in Orlando, Fla., does not set a Supreme Court precedent. But it is part of a trend in which the justices have given at least tacit approval to broad gun-control laws in states and localities that choose to enact them.

The case, Shew v. Malloy, No. 15-1030, was brought by four individuals, a business and two advocacy groups. They said the ban was irrational, ineffective and unconstitutional.

“Connecticut dubs a semiautomatic firearm” with one of several common features “an ‘assault weapon,’ but that is nothing more than an argument advanced by a political slogan in the guise of a definition,” they told the Supreme Court in their petition seeking review.

Last October, the United States Court of Appeals for the Second Circuit, in New York, upheld the ban almost entirely. It acknowledged that the affected weapons were in common use and assumed their possession was protected by the Second Amendment. But the appeals court ruled that the Connecticut law passed constitutional muster.

The law was “specifically targeted to prevent mass shootings like that in Newtown, in which the shooter used a semiautomatic assault weapon,” Judge José A. Cabranes wrote for the court.

“Plaintiffs complain that mass shootings are ‘particularly rare events’ and thus, even if successful, the legislation will have a ‘minimal impact’ on most violent crime.

“That may be so,” Judge Cabranes continued. “But gun‐control legislation ‘need not strike at all evils at the same time’ to be constitutional.”

It has been eight years since the Supreme Court recognized an individual right to keep guns at home for self-defense in District of Columbia v. Heller, which struck down parts of an exceptionally strict local law. Since then, the justices have said almost nothing about the scope of that right.

So….a victory for gun control.

 

Trump Releases List of 11 Potential SCOTUS Justices

Breaking:

JERSEY CITY, N.J. (AP) — Presumptive Republican presidential nominee Donald Trump has released a list of 11 potential Supreme Court justices he plans to vet to fill the seat of late Justice Antonin Scalia.

Trump’s picks include Steven Colloton of Iowa, Allison Eid of Colorado and Raymond Gruender of Missouri.

Also on the list are: Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas.

Trump said in March he planned to release the list to ease concerns about his conservative credentials in the Republican primary.

Let the vetting begin.

Panicky RedState: Confirm Garland Now

From Think Progress:

RedState, the influential conservative blog that has often helped shape the outcome of Republican primary elections and congressional Republican strategy, says its now time for Republicans to end their blockade of Chief Judge Merrick Garland’s nomination to the Supreme Court. “Now that Donald Trump is the presumptive nominee, this is not even a close call,” the site tells its readers, adding that “there is absolutely no reason to drag this out any longer.”

The conservative site’s new position, penned by RedState managing editor Leon Wolf, is hardly a robust endorsement of President Obama’s nominee. “Garland is not a great choice,” Wolf writes, “but he is not a terrible one, either.” Wolf sees Garland’s primary virtue as the fact that he is unlikely to remain on the Supreme Court for very long — “he is old (for a modern Supreme Court appointment) and will be up for replacement in probably 10 years instead of 20 or 30.”

That fact, Wolf writes, argues in favor of confirming Garland before he is replaced with someone else:

“Republicans must know that there is absolutely no chance that we will win the White House in 2016 now. They must also know that we are likely to lose the Senate as well. So the choices, essentially, are to confirm Garland and have another bite at the apple in a decade, or watch as President Clinton nominates someone who is radically more leftist and 10-15 years younger, and we are in no position to stop it.”

This unqualified call for Republicans to change strategy could be an important development in the battle over the Supreme Court.

SCOTUS Strikes Down Texas Voting Suppression Attempt

They saw what you did there, Texas.

Since the 1960s — the case of Wesberry v. Sanders – to be specific — we have had a “one person, one vote” which says that state legislative districts must be drawn so they are equal in population.

But the Republican asshole legislature in Texas (of course) wanted legislative lines to be drawn based on eligible or registered voters instead of total population as measured by the US Census Bureau, thus not counting children, immigrants (documented and undocumented), prisoners, and other nonvoters. They claimed the current system, by including nonvoters, denies “eligible voters their fundamental right to an equal vote.”

Which is bullshit.  What they were really trying to do was a transparent attempt to dilute the vote of minorities in urban areas by not counting people, but counting registered voters instead.  Combined with conservative purges of voter roles, this would shift power to more rural areas. In other words, while the population of a city might have 1 million people, if only 200k were voters, the district would be apportioned to the voter rolls. This would shift power to more rural districts, and thus give conservatives an advantage, much like how the Senate inflates power in the hands low population states.

SCOTUS saw through this.  The Notorious RGB wrote the opinion, which was — believe it or not — UNANIMOUS.

ginsberg

Scalia’s Absence Already Having An Impact

If Scalia was alive, this case would have ended up differently:

A case that had the potential to weaken public sector unions across the United States ended with a somewhat unexpected victory for unions on Tuesday, as the Supreme Court divided 4-4 on the question of requiring nonmembers to pay a fee to the public sector union that negotiates the collective bargain agreement that covers them as well.

The split vote in Friedrichs v. California Teachers Association means a lower court verdict in favor of the union stands.

If Justice Scalia had been around to weigh in on the anti-union side, which he assuredly would have, then all 50 states would almost certainly have magically become “right to work” states.

This shows the power that one person can have on the court.  And the significance of Obama’s current nominee.  Or indeed, the upcoming Presidential Election.

Gov McCrory Signs HB2 Into Law

Here’s why he did it:

… which kind of reminds me of when Edith Bunker of “All in The Family” couldn’t understand how a man could be in love with another man, and therefore didn’t understand the concept of gay rights.  The ordinance only defies common sense if you are blind to the problem it seeks to remedy.

Speaker Jim Moore also defended the law, saying:

“One of the biggest issues was about privacy. . . The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.”

The final bill is attached below the fold.

Charlotte Mayor Jennifer Roberts, a Democrat, released a statement saying she was appalled by the bill’s passage.

“This legislation is literally the most anti-LGBT legislation in the country,” she said Wednesday.

So how did we get here?

North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.

Charlotte was essentially trying to fix this gap in civil rights laws. By expanding the city’s existing civil rights protections, the city council hoped to make it clear that LGBTQ people should be able to go to a bar or hail a taxi without the fear of legally allowed discrimination.

And so on February 22, Charlotte came forward with an ordinance which did just that:

The changes mean businesses in Charlotte can’t discriminate against gay, lesbian or transgender customers, in addition to long-standing protections based on race, age, religion and gender. The ordinance applies to places of public accommodation, such as bars, restaurants and stores. It also applies to taxis.

The most controversial part of the ordinance would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify.

And that’s when state lawmakers jumped into action, quickly proposing the new state law which was signed by the governor yesterday.

Here’s what the state’s law does:

  1. The statute overturns and bans local laws (including Charlotte’s) that don’t conform to the state’s nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn’t ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forces all cities and counties to keep it legal to discriminate against LGBTQ people in these settings.
  2. It prohibits transgender people from using bathrooms or locker rooms in schools and government agencies based solely on their gender identity. Instead, they’re forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it’s not required.

The governor and bill sponsors want the focus to be on the bathroom issue — it is something everyone can relate to — but that will involve a lot of silly fearmongering that has little basis in reality.  Sexual predators can exist regardless of the sexual orientation of the predator OR victim.  You don’t reduce incidents of sexual predators simply by discriminating against people of a certain sexual orientation.  The one has nothing to do with the other.  And in fact, we know from experience in places which permit transgender accommodation that the fears of heightened sexual assault or invasion of privacy are unfounded.

Cambridge, Mass, for instance:

Back in 1984 Cambridge enacted an ordinance that established the Human Rights Commission. The purpose of the ordinance was to protect the human rights of all citizens of the City. In 1997 this ordinance was amended to specifically include gender identity and expression. Much like the Transgender Equal Rights Bill proposal, the City of Cambridge sought to offer protection to transgender individuals from being harassed, fired from a job, denied access to a public place, or denied or evicted from housing. Since this 1997 amendment there have been no incidents or issues regarding persons abusing this ordinance or using them as a defense to commit crimes. Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.

No incidents in almost 20 years.

But the bathroom thing is partly a diversion.  What is at stake here is LGBT rights and non-discrimination laws in a broader sense. This is the new battlefront after the gay marriage victories.

Already, two states have passed laws that preempt local non-discrimination provisions. In 2011, Tennessee passed such a law, and Arkansas passed one in 2015—both in responses to cities adopting or considering ordinances.

North Carolina’s law us like the Tennessee and Arkansas law.  This is the first time that a law has been passed at the state level which mandates that students use the bathroom corresponding to their “biological sex” or some similar phrase.  In February, South Dakota lawmakers passed a similar bill, but Republican Governor Dennis Daugaard vetoed it, saying the law did not answer any pressing need and that local authorities were better-equipped to handle the issue than state lawmakers.

The student-restroom laws in North Carolina and elsewhere raise other questions, most notably whether schools fall afoul of federal Title IX regulation and thus endanger federal funding. It would be ironic if the North Carolina’s attempt to preempt Charlotte’s ordinances was itself preempted by federal law, but that’s certainly a highly possible outcome.

The other problem with the new state law is the notion that municipalities must conform to the state’s nondiscrimination laws.  While that is generally true, “conformity to nondiscrimination laws” has never meant that municipalities had to be as discriminatory as the state.  Rather, it has always meant that municipalities must be at least as NONdiscriminatory as the state.  Put another way, the purpose of non-discrimination laws is, to stop discrimination.  If a municipality wants to do better than the state at stopping discriminating, it has always been free to do that. That’t the way it has been in every state in the country.  Charlotte WAS conforming to North Carolina’s non-discrimination laws.  AND it added a few non-discrimination laws of its own.

But the rationale of North Carolina’s new state law turns the whole idea of non-discrimination on its head.

Another rationale for the new law is the specious argument that state laws regarding non-discrimination should be consistent throughout the state — that this will somehow help intra-state commerce.  Sounds good and legal and rational…. until you actually think about it.  How is intrastate commerce affected at all if taxis can ignore LGBTQ people in Raleigh, but can’t in Charlotte?  Intrastate commerce isn’t impacted at all.  Nor is it affected if the bathroom rules are different in different municipalities.

And if Charlotte wants to prevent businesses from engaging in wage discrimination against LGBTQ workers — well, that doesn’t impact intrastate commerce either.  Yes, it makes Charlotte a more appealing place to work than Raleigh if you are a member of the LGBTQ community (or, you know, the human race), but that’s Raleigh’s problem.  It doesn’t affect THE STATE or intrastate commerce.  So this “conformity of nondiscrimination laws throughout the state” is just a bullshit rationale.

And so the next fight begins.  Personally, I am not worried about the final outcome.  I’ve been around long enough to see the arc of justice, and which way it bends.  In the 1970s and 1980s, when transgender discrimination issues started poking up, they almost universally failed.   Not so anymore.  Courts are beginning to recognize that that a person could bring a claim under Title VII’s ban on sex discrimination because an employer views an employee’s sexual orientation as “not consistent with … acceptable gender roles.”  The U.S. Department of Labor has acknowledged the ruling in Macy v Holder — so now, if you are a business that wants a government contract, fat chance of getting that contract if you discriminate on the basis of gender identity or transgender status.  [UPDATE:  I’m going to list some federal court decisions which support coverage for transgender Individuals as sex discrimination]

But it is just frustrating to have to continually have these battles for civil rights and, indeed, common decency.  I just wish the haters would get tired of losing and give it up already.

Garland

Is it hard to do cartwheels over President Obama’s choice of Supreme Court nominee Merrick Garland today.  Professor Epstein seems to think he’s a good liberal…

Epstein

… but you always have to question the methodology of these things.

Merrick Garland is 63 years old and currently serves as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. A former Justice Department official in the Clinton administration, Garland was nominated to the D.C. Circuit by President Bill Clinton in 1997 and confirmed by the U.S. Senate by a vote of 76-23. Sen. Orrin Hatch remarked at the time that Garland was “not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration.”  He’s actually pretty conservative on police issues and war on terror.  But he’s no threat to Roe v Wade.

Sure, Garland is smart.  And qualified.  But if the tables were turned, and it was a Republican president and a Democrat-controlled Senate, I don’t think the judicial candidate would have been so…. moderate.

I mean, I get it.  Everyone gets it.  Obama is picking a guy who has already been approved by the Senate for his current judicial gig, who is not an ideologue, etc.  This forces Senate Republicans to consider AND approve the nominee, or look like the reason why Washington sucks so bad.  Also, with a Clinton presidency looming, Republicans might just want to get Garland and not get someone far more liberal.  (In fact, a President Trump could pick a liberal judge for all anybody knows).

In other words. holding out for another Scalia just might get Republicans a lefty version of Scalia.

Over at 538, they did some quick calculations and determined what the future might look like:

chances

Facing those possibilities, confirming Garland, might just be the best thing the GOP could do.  You gotta play the cards you’re dealt.

And the other hand, I get annoyed at this (if it is true):

Why would Obama capitulate to the Republicans when he has them over a barrel?

In the end, it seems that Obama has made a pragmatic choice.  And let’s face it.  It saves the Court.  And if it doesn’t, it makes the GOP look horrible.

Early indications are that the right wing is bent on looking obstructionist, even in the face of a reasonable moderate candidate.  Jay Sekulow of the American Center for Law and Justice issued a statement repeating his call for “no confirmation proceedings until after the election.” Liberty Counsel’s Mat Staver similarly repeated that there should be “no Senate hearing on any Obama nominee.” Alliance Defending Freedom’s Casey Mattox offered no criticism of Garland himself but claimed that the Obama administration is untrustworthy and so Garland’s nomination should be blocked: “The Obama administration has demonstrated it cannot be trusted to respect the rule of law, the Constitution, and the limits of its own authority. So it should be no surprise that the American people would be highly skeptical that any nominee this president puts forth would be acceptable. Heritage Action, which was calling for an end to most judicial and executive branch confirmations even before Scalia’s death, declared that “nothing has changed”  with the nomination of Garland and that we areone liberal Justice away from seeing gun rights restricted and partial birth abortion being considered a constitutional right.”  Tony Perkins of the Family Research Council similarly tried to paint Garland as a liberal, saying he is “far from being a consensus nominee,” although he offered no specifics on the
“serious questions” he said their were about Garland’s “ability to serve as a constitutionalist.”  And anti-abortion groups also doubled down on their opposition to any confirmation proceedings, although they struggled to find specific reasons to oppose Garland.

Aaaaand as I write this, it looks like the Senate Republicans are taking the bait and biting down hard:

Senator Mitch McConnell of Kentucky, the majority leader, has called President Obama’s Supreme Court nominee, Judge Merrick B. Garland, and explained that no action would be taken in the Senate on the nomination, Mr. McConnell’s spokesman said.

Mr. McConnell also informed Judge Garland that they would not be meeting in person at the Capitol.

“Rather than put Judge Garland through more unnecessary political routines orchestrated by the White House, the leader decided it would be more considerate of the nominee’s time to speak with him today by phone,” Mr. McConnell’s spokesman, Don Stewart, said in a statement.

“The leader reiterated his position that the American people will have a voice in this vacancy and that the Senate will appropriately revisit the matter when it considers the qualifications of the person the next president nominates. And since the Senate will not be acting on this nomination, he would not be holding a perfunctory meeting, but he wished Judge Garland well.”

“Political routines orchestrated by the White House”?  That’s a funny way to say “obligations placed upon the President by the U.S. Constitution”.

Obama’s Three Supreme Court Nominees

They are not as progressive as some might hope. This is a feature, not a bug, of Obama’s choices. He wants to nominate a Supreme Court justice that can’t be dinged for being a radical communist.

So who are these guys (and yeah, they’re guys…)?

Srinivasan, 49, was born in India and emigrated as a young child with his family to Kansas. A Stanford Law graduate, he would be the high court’s first Asian American and first Hindu.

Srinivasan was nominated in May 2013 to be a judge on the Washington-based appeals court. The Senate confirmed him, 97 to 0.

***

Garland served several stints in the Justice Department and supervised such major cases as the prosecutions of Oklahoma City bomber Timothy McVeigh and his accomplice, Terry Nichols, and Unabomber Ted Kaczynski. Garland was appointed to the federal circuit court in April 1997 and became chief judge in February 2013.

***

Sri_Srinavasan[Watford] worked for four years as an assistant U.S. attorney in Los Angeles before joining the law firm of Munger, Tolles & Olson, where he focused on appellate litigation in state and federal courts. He was appointed by Obama to the federal appeals court in May 2012 after a Senate confirmation vote of 61 to 34.

I think Srinivasan (pictured at the right) has distinct advantages which would make any opposition to him be particularly ridiculous — not the least of which is that he was confirmed to the D.C. Circuit (probably the most important circuit court) without any Senate objection.  Plus, the Republicans are being painted as the Bigot Party, so they wouldn’t look good turning down an Asian-American and Hindu (I would be willing to bet that most Trump supporters can’t distinguish between Hindu and Islam).

The problem is that Srinivasan is young — only 49.  Watford is even younger at 48.  So maybe Garland, age 63, has a better change for Republicans not to oppose.

Footnote on Scalia

Thanks New York Times for casual mention about something that — if Scalia hadn’t died — would go unreported:

WASHINGTON — Antonin Scalia was the longest-tenured justice on the current Supreme Court and the country’s most prominent constitutionalist. But another quality also set him apart: Among the court’s members, he was the most frequent traveler, to spots around the globe, on trips paid for by private sponsors.

When Justice Scalia died two weeks ago, he was staying, again for free, at a West Texas hunting lodge owned by a businessman whose company had recently had a matter before the Supreme Court.

Now That Scalia’s Body Is Cold….

… let’s get real about this guy.  Jeffrey Toobin:

Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.

His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood. When, in 2003, the Court ruled that gay people could no longer be thrown in prison for having consensual sex, Scalia dissented, and wrote, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” He went on, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.”

But it was in his jurisprudence that Scalia most self-consciously looked to the past. He pioneered “originalism,” a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century. During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues. (Scalia’s clashes with O’Connor were far more significant than his much chronicled friendship with Ruth Bader Ginsburg.) It was not until 2008, after John G. Roberts, Jr., had succeeded Rehnquist, that Scalia finally got a blockbuster: District of Columbia v. Heller, about the Second Amendment. Scalia spent thousands of words plumbing the psyches of the Framers, to conclude (wrongly, as John Paul Stevens pointed out in his dissent) that they had meant that individuals, not just members of “well-regulated” state militias, had the right to own handguns. Even Scalia’s ideological allies recognized the folly of trying to divine the “intent” of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”

This Republican intransigence is a sign of panic, not of power. The Court now consists of four liberals (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and three hard-core conservatives (Roberts, Clarence Thomas, and Alito), plus Anthony Kennedy, who usually but not always sides with the conservatives. With Scalia’s death, there is a realistic possibility of a liberal majority for the first time in two generations, since the last days of the Warren Court. A Democratic victory in November will all but assure this transformation. Republicans are heading to the barricades; Democrats were apparently too blindsided to recognize good news when they got it.

Like Nick Carraway, Scalia “wanted the world to be in uniform and at a sort of moral attention forever.” The world didn’t coöperate. Scalia won a great deal more than he lost, and he and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding. But even though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes—thanks first to O’Connor and then to Kennedy. Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not.

For now.  Obviously, the next SCOTUS nominee could change all that.  Unlikely that there exists a jurist as Scalia-esque as Scalia, but there are probably many who live in that same conservative bubble of which Toobin speaks.

Hamilton on the Appointment of Justices to the Supreme Court

[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

U.S. Constitution, Article II, Section 2 (the “Appointments Clause”)

“Alexander joins forces with James Madison and John Jay to write a series of essays defending the new United States Constitution, entitled The Federalist Papers. The plan was to write a total of twenty-five essays, the work divided evenly among the three men. In the end, they wrote eighty-five essays, in the span of six months. John Jay got sick after writing five. James Madison wrote twenty-nine. Hamilton wrote the other fifty-one!”

Aaron Burr in Hamilton

And among those fifty-one essays, Alexander Hamilton, under the pseudonym “Publius”, wrote Federalist 76 and Federalist 77, dealing with the appointment of (among other things) Justices to the Supreme Court.

So since Hamilton, the musical, is still taking the country by storm, and the appointment of SCOTUS justices is a hot-and-heavy topic, I thought I would check out what our favorite founding father said on the issue, to see if he could enlighten us.

So I read Federalist 76 and 77.  The real meat of Hamilton’s defense of the Appointment Clause of the Constitution lies in Federalist 76.

The Scalia Gambit

Without question, the death of Associate Justice Antonin Scalia has set all sides of the political spectrum into a frenzy.  Everybody is weighing, but the stupidest comments are coming from Republicans who say that Obama shouldn’t nominate a justice at all because there is an election coming up.  Rand Paul, who supposedly loves the Constitution, says that Obama has a “conflict of interest”, which is ridiculous.

The Constitution on this issue is not hard to understand: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” The provision creates a power — and perhaps even a duty — in the president to make a nomination.  No, it does not give him a right to have his nominee confirmed or even considered. That power lies with the Senate.  But certainly the President SHALL do what the Constitution instructs him to do.

This puts the ball in the Senate’s court (so to speak) and Republican Senate Majority leader Mitch McConnell made the foolish error of showing his cards.  He said that the Senate will not vote on an Obama nominee.  They will delay, filibuster, whatever.

That’s fine, but who will pay the price for that?  Republicans, I suspect.  They need to show that they can govern, something that they have failed to do in the past few years.

Loretta_Lynch-10-facts-black-enterpriseSo knowing the GOP gamebook, what should Obama do?  Invigorate the base by nominating Loretta E. Lynch, the 83rd Attorney General of the United States.  Very qualified, and approved already for the Senate for AG.  And a black woman.

And the GOP can spend the whole election season explaining why this qualified black woman should not be the first black woman on the Supreme Court.  I don’t know how they can win the politics of this, even if they succeed in keeping her off the bench.

Hillary and/or Bernie can add fuel to the fire by saying that if they won the election, they would nominate…. Larry Tribe.  It might force Republicans to accept Obama’s nominee, as the lesser of two evils.  Especially if it looks like Trump might not take the White House.

Then, there’s this:

It could all come down to 17 crucial days in January.

If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.

So if Democrats take back the Senate, President Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.

Sri_SrinavasanSo maybe Obama might do better to select a consensus nominee. Sri Srinivasan is an often-mentioned choice.  He is 48, an Indian-American, and a member of the U.S. Court of Appeals for the District of Columbia Circuit — a traditional launching pad for Supreme Court nominees.  Obama first nominated him to the post in 2012, and the Senate confirmed him, 97-0, in May 2013, including votes in support from GOP presidential contenders Sens. Ted Cruz and Marco Rubio.

Now, undoubtedly there are bloggers and pundits on the right who see this playing out — politically — in their favor.  And to be sure, if you are embedded on the bigoted women-and-immigrant-hating right side of the political spectrum, you’re not worried about Lynch or Srinivasan being nominated, and you hope their nomination will rally other bigots like you. Bring it on!

The problem is… America isn’t like the right.  It’s not that conservative, and you only need to look at Trump to know there is a problem with right wing politics these days.

Breaking: Scalia Dead at 79

Just coming over the news. Found dead at a West Texas “luxury ranch”, whatever that is.

UPDATE: Very quick initial thoughts (I will “eulogies” him later.)

The political implications of this are huge. For one thing, this Supreme Court term had many important 5-4 issues in front of the Court, or… what would have been 5-4. Immigration, climate change, even abortion… big issues. These become 4-4… which means the lower court stands (for better or for worse).

More importantly, this is the first time since Clarence Thomas 25 years ago that a President will attempt to nominate an Associate Justice with the Senate (who needs to approve) in the majority of the other party. And even with Thomas, Bush still had two years left. Obama is in his last year. Will the Republican Senate try to “run out the clock”? You bet. Will that itself be controversial? Yes, and expect that itself to be a campaign issue about weekday is wrong with Washington.

And speaking of the campaigns, this becomes a huge issue, guaranteed to motivate voters on both sides.

The political landscape, and in many ways, the future direction of the country have changed, although nobody knows which way.

For the first time in maybe ever, this election will control ALL THREE branches of government. Think about that.

Activist Supreme Court Rules On Climate Change

Crazy:

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.

The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups.

But the Supreme Court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices.

The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review

“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.

When the court does something unprecedented procedurally, that usually means they are doing something political (e.g., Bush v. Gore).  No doubt the five conservatives on the court were motivated by Obama’s use of executive orders.

How Conservatives Plan To Redistrict In Their Favor

There is a case before the Supreme Court right now called Evenwel v. Abbott, and it is the most important voting rights case since the Court’s conservative majority gutted the Voting Rights Act (VRA) in 2013.

The case deals with redistricting — how you draw the lines to determine who votes in what congressional district.  What the conservatives want to do is gerrymandering — the manipulation the boundaries of an electoral constituency so as to favor one the GOP.

Right now, districts are drawn based on the number of people in each district — each district needs to have the same number of people.  But if conservatives get their way, legislative lines will be drawn based on eligible or registered voters instead of total population, thus not counting children, immigrants (documented and undocumented), prisoners, and other nonvoters. If that happened, districts would become older, whiter, more rural and more conservative, with 55 percent of Latinos, 45 percent of Asian Americans and 30 percent of African Americans excluded from political representation. The same communities most harmed by the gutting of the VRA would see their political influence further diminished.

The arguments for and against this were heard yesterday in the Court. The court appeared divided on how to proceed. Chief Justice John Roberts, who authored the opinion dismantling a key part of the VRA, expressed sympathy with the plaintiff’s argument. “Well, it is called the one person, one vote,” Roberts said. “That seems to be designed to protect voters.”

On the other hand, Justice Sonia Sotomayor took the position that states have not just a “voting interest” but “also a representation interest.” She elaborated: “A state has to be able to say—I think just as the federal government did—the legislature is protecting not just voters; it’s protecting its citizens—or noncitizens. The people who live there.”

“What we actually want,” Justice Stephen Breyer said, “is the kind of democracy where people, whether they choose to vote or whether they don’t choose to vote, are going to receive a proportionate representation in Congress.”

The Notorious RGB wondered aloud if this means that states were wrong when, prior to 1920, they including women for districting purposes.  That, she correctly mused, seemed absurd, and if the framers didn’t want to include women (for districting purposes), they would have said so (or not counted them in the census).

The swing vote on so many of these cases, Justice Anthony Kennedy. He seemed to be searching for a middle ground between the plaintiff’s claim of “voter equality” and the longstanding principle of “population equality.”

Unlike the VRA case in 2013, the civil-rights groups defending “one person, one vote” sounded confident after the oral arguments. Nina Perales of the Mexican-American Legal Defense Fund said she was “very heartened” by the questions the justices asked.

But you can never tell.  Keep an eye out for this one.

 

SCOTUS Round-up: Three More Five-To-Four Decisions Today

Today is the last day of the SCOTUS term, and so they issued the last of their opinions.  The two biggest cases — on Obamacare and sames-sex marriage — came out at the end of last week, so a lot fewer people were paying attention this morning.  Here’s what happened:

(1)  DEATH PENALTY – The 5-4 decision in Glossip v. Gross was a win for conservatives who support the death penalty and viewed the case’s technical dispute over one state’s lethal injection methods.  The Supreme Court ruled that Oklahoma’s “drug cocktail” is not cruel and unusual punishment, despite the fact that it has resulted in some botched execution.  Scalia was especially snarky in his concurrence, starting with “Welcome to Groundhog Day” as he noted repeated attempts to abolish the death penalty for good.  He also said that those who seek abolition of the death penalty “reject the Enlightenment”.  (Odd!)

(2)  ENVIRONMENT – The Supreme Court in Michigan v. Environmental Protection Agency ruled 5-4 against EPA regulations to limit mercury emissions and other pollutants at power plants.  Substituting its judgment for the EPA’s the Supreme Court said the EPA’s decision to impose the regulations was not reasonable or necessary since it did not take into account the costs to utilities to make these changes.  Happy breathing, everybody!

CIrTeTxWEAEYP2U(3)  GERRYMANDERING – In a win for liberals (Kennedy siding with the liberal four), The Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission upheld Arizona congressional districts drawn by an independent commission and rejected a constitutional challenge from Republican lawmakers. The outcome preserves efforts in 13 states to limit partisan influence in redistricting. Most notably, California uses an independent commission to draw electoral boundaries for its largest-in-the-nation congressional delegation.

The Arizona case stemmed from voter approval of an independent commission in 2000. The legislature’s Republican leaders filed their lawsuit after the commission’s U.S. House map in 2012 produced four safe districts for Republicans, two for Democrats and made the other three seats competitive. Democrats won them all in 2012, but the Republicans recaptured one last year.

CIrN-hRWcAE46YlJustice Ruth Bader Ginsburg wrote for the court that there is “no constitutional barrier to a state’s empowerment of its people by embracing that form of lawmaking.” In dissent, Chief Justice John Roberts accused the majority of approving a “deliberate constitutional evasion.”  The justices have been unwilling to limit excessive partisanship in redistricting, known as gerrymandering. A gerrymander is a district that is intentionally drawn, and sometimes oddly shaped, to favor one political party.

Republicans employed an enormously successful strategy to take advantage of the 2010 census, first by winning state legislatures and then using that control to draw House districts to maximize their power. One measure of their success: In 2012, Republicans achieved a 33-seat majority in the House, even though GOP candidates as a group got 1.4 million fewer votes than their Democratic opponents.

Chief Justice got a little snippy by inserting “what chumps” into the opinion (see right).

UPDATE – LATE IN THE DAY 5-4 RULING is good for pro-choice advocates:

The U.S. Supreme Court agreed Monday afternoon to put a hold on court rulings that have reduced the number of abortion clinics in Texas.

Four of the court’s conservatives — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito — dissented.

A state law passed in 2013 required clinics providing abortion services to meet the same standards as ambulatory surgical centers, and it required doctors providing the services to have admitting privileges at nearby hospitals.

Women’s groups asked the Supreme Court to put an emergency hold on the effect of the law while they prepare an appeal to challenge its constitutionality. They say the law, which takes effect Wednesday, would force all but nine abortion clinics in the state to close.

“Overall, there would be a net reduction in abortion facilities of more than 75% in a two-year period,” they argue in their court filings. And the clinics that remain open would find it hard to expand their services.

So for now, enforcement of the Texas law is on hold and will remain so until the court decides whether to hear the full appeal.

UPDATE – EVEN LATER IN THE DAY 5-4 RULING is good for pro-choice advocates in North Carolina:

RALEIGH — A federal appeals court must reconsider whether North Carolina can issue “Choose Life” license plates.

The U.S. Supreme Court on Monday ordered the 4th Circuit Court of Appeals to reconsider its ruling last year that the state could not issue a license plate with an anti-abortion slogan unless it also issued a plate with the opposite point of view.

The order to rehear the case came after the justices ruled 5-4 last week that Texas could refuse to issue Confederate battle flag plates. In that ruling, the Supreme Court said plates are government property and don’t have to offer both sides of the debate.

The American Civil Liberties Union sued when lawmakers voted to offer the “Choose Life” plates in 2011. The appeals court said governments must offer both sides of the debate.

The ACLU said it was disappointed in the Supreme Court’s ruling and again asked the North Carolina General Assembly to offer a plate with a message supporting abortion rights.

“This case has always been about more than specialty license plates; it asks whether the government should be allowed to provide a platform to one side of a controversial issue while silencing the other,” ACLU of North Carolina Legal Director Chris Brook said in a statement.

Supreme Court Rules 5-4 To End The Sanctity Of Marriage

46 years ago this weekend, police in New York City raided a gay bar called the Stonewall Inn.

Obviously, this is the end (we hope) of a remarkable civil rights story (despite my snarky headline).  Here’s the opinion.

Reactions are about what you expect.  I will update as the day goes on.  But the important thing is that about 3 million gay people just won the right to become married.

The dissents are interesting.  They all take pains to say, “Hey, I’m happy about the result!  Seriously!  Go celebrate!”, just before launching rather odd objections.

The main dissent is by Chief Justice Roberts, but all of them take great pains to say, essentially, “Hey *I* don’t have a problem with gay marriage”.  The thing they object to, universally in dissent, is that the court should not decide.  They would rather have this worked out in a democratic fashion.

I think Kennedy, writing for the majority, dispenses with this.  First of all, it has come up through the courts.  There is a split in the circuits.  It IS a legal question.  And the Constitution supersedes democracy.  End of story.  If I had a bone to pick about the majority opinion, it is this: Once again, Justice Kennedy did not spell out what constitutional test he was applying to a claim of gay equality.  It simply discussed a series of court precedents, and his own recitation of notions of liberty, without saying what burden those challenging the bans had to satisfy before winning the right to equality.

The dissents also mischaracterize the majority opinion, saying things like “the majority views bans on gay marriage as unwise“.  No, the majority views same-sex marriage bans as UNCONSTITUTIONAL and a violation of the 14th Amendment.  The majority is not substituting its preference for that of legislatures — they are doing what upper level courts often do, i.e., decide whether something is constitutional or not.

Ironically, while the dissent says the majority is acting extra-judicially, many of the dissents arguments have little to do with the actual law (instead, they argue policy, democracy, etc.)

Breakdowns and reactions below the fold

The Other Case: Victory For Fair Housing

It won’t get as much press, but the Supreme Court decision in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc., is arguably as important as the Obamacare case.

The 5-4 ruling (PDF) found that the housing policies could be deemed discriminatory based on “disparate impact.” This means that plaintiffs could prove discrimination by showing that the impact of a housing policy was discriminatory.  That’s the way it has always been, but a bad decision today could have meant that plaintiffs would have to prove discrimination by showing a motive — a specific intent to discriminate.  In the absence of someone publicly admitting they are racist, this is very difficult — if not impossible — to prove. The impact would have been to essentially gut the Fair Housing Act of 1968.

While some of the ruling, written by Justice Kennedy and joined by the four liberal members of the court, turned on technical issues of statutory interpretation and precedent, the underlying theme was a finding by the Supreme Court that a lot of discrimination, in 1968 and today, is either unconscious or hidden:

[The law] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

So, another good win today.

Obamacare Subsidies Upheld By SCOTUS

I’m actually not that surprised at the outcome.  The surprising thing was that the Supreme Court ever took this case in the first place.

But the US Supreme Court upheld the challenge to Obamacare.  The opinion is here.

In layman’s terms, the issue surrounded some (arguably) vague language in the Affordable Care Act relating to the federal government providing financial assistance to people who get Obamacare through their state exchange.  If you interpret the language one way, the federal government cannot provide financial assistance.  If you interpret it the way Congress intended it, then the federal government can provide financial assistance.  Without the federal government assistance, however, health insurance will become far too expensive for millions of people who buy it through their state exchange, and so they won’t buy it.  (In North Carolina, it would increase healthcare costs by over $300 per month).   In effect, it would end Obamacare.

So the question was actually quite simple…. did Congress intend to write a healthcare law that wouldn’t work?

Chief Justice Roberts wrote the opinion and the short answer to that question is….

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Chief Justice Roberts did note that the ACA was a badly written piece of legislation.  (There are, he notes, three separate Section 1563s).

Scalia’s dissent is pure Scalia.  It refers to “interpretive jiggery-pokery” and calls the majority opinion “pure applesauce”.

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Elsewhere, he writes: “Impossible possibility, thy name is an opinion on the Affordable Care Act!”

He writes that the court “rewrites the law to make tax credits available everywhere… We should start calling this law SCOTUScare.” (that’s the first time “SCOTUS” has ever been used in a SCOTUS opinion).

He says: “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

And similarly: “[T]he cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

Talk about projection.  Scalia is the one with the obvious agenda and “favorites”.  That last comment is a pretty harsh attack on his colleagues, including the Chief Justice.

We should remember that Scalia didn’t give a rat’s ass about the clear language OR the legislative intent of the Voting Rights Act when he and his conservative colleagues gutted it, deciding unilaterally that it didn’t apply to today’s world, now that there isn’t racism any longer.

Roberts, by the way, took Scalia’s own dissent from the last major Obamacare case, and used it against Scalia.  It was buried in a footnote and amounted to a small dart lobbed Scalia’s way.  To defend making the subsidies available to consumers everywhere, Roberts cited a line the dissent to the 2012 decision in favor of Obamacare, in which Scalia said, “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

Roberts used the line to argue that it “is implausible that Congress meant the Act to operate” in a manner to limit the subsidies only to those states with state-operated exchanges, as the challengers in King v. Burwell argued.

Other reax below the fold

SCOTUS Clears Its Docket… But Nothing On Obama Care or Marriage Equality

SCOTUS delivered itself of five opinions today as it begins to clear out its end-of-the-term caseload. But none were the Two Big Ones: the marriage equality and Obamacare subsidy cases. That means that on the remaining Mondays and Thursdays of this month and early July, the odds of the Big Ones coming down any particular day will rise.

The decision announced today–a rare one in that Clarence Thomas joined with the Court’s four “liberals” to form a majority–that will probably draw the most attention is Walker v. Sons of Confederate Veterans, which classifies state license tag messages as “government speech” not subject to the usual First Amendment concerns involved in state regulation of speech. Had the Court gone the other way, states would have been put in the position of accepting virtually all “messages,” perhaps threatening the whole vanity tag industry.

In other noteworthy decision, Ohio v. Clark, the Court unanimously held that allowing a teacher to testify on behalf of a three-year-old victim of child abuse did not violate the defendant’s Sixth Amendment right to confront his accuser. A contrary decisions would have led to all kinds of consternation.

Shooting The Mentally Ill

I’ve written about this before — the propensity of the police to open fire on people they know to be mentally ill.  Like their current problem with minorities, members of law enforcement seem to have a problem with showing restraint when it comes to the mentally ill.

Earlier this week, the US Supreme Court had occasion to address this issue, and sadly, the results were not what mental health advocates were hoping for.

Teresa Sheehan suffered from a mental illness and lived in a San Francisco group home. After Sheehan threatened her social worker when he attempted to perform a welfare check, he became concerned that she was a danger to herself or others and summoned the police for help transporting her to a mental health facility for a 72-hour involuntary commitment. When the police officers arrived, they entered Sheehan’s room without a warrant to take her into custody. Sheehan grabbed a knife and threatened to kill the officers. They were forced to withdraw outside her room and call for backup, but instead of waiting for the backup to arrive, they drew their weapons and forced their way back into her room. When Sheehan again threatened the officers with a knife, they shot her several times.

Sheehan sued the officers and the city for violations of her Fourth Amendment right to be free from warrantless searches and seizures as well as violations of the Americans with Disabilities Act.

The district court granted summary judgment in favor of the defendants, and Sheehan appealed. The U.S. Court of Appeals for the Ninth Circuit held that there were triable issues of material fact regarding whether the officers’ second entry into Sheehan’s room was reasonable under the circumstances and whether the officers failed to reasonably accommodate Sheehan’s disability as required by the Americans with Disabilities Act.

The US Supreme Court was asked to determine two things:

(1) Did the officers violate a clearly established right under the Fourth Amendment when they forced entry into Sheehan’s room the second time?

(2) Does the Americans with Disabilities Act require law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect when attempting to take that suspect into custody?

The Supreme Court ruled “no” to the first question and didn’t reach the second one.  The ruling was 6-2, with Scalia and Kagen dissenting on procedural grounds (that is, even though they dissented, they still didn’t agree with the Sheehan’s claim).

My opinion: when you read the facts of the case, you see that the police were in a precarious position.  Obviously, they had to do something, and the longer they waited, the more this woman was a risk to herself and others.  I just have an issue with shooting her.

And the problem isn’t a legal one or a political — the solution lies with proper police training.

As I have written before, police need to adopt what is known as the Crisis Intervention Training (CIT) model of dealing with the mentally ill.  It is a 40-hour curriculum — one of the most comprehensive police officer mental health training program in the country. According to Laura Usher, CIT program manager at NAMI headquarters in Arlington, Virginia, there are crisis intervention training programs in 45 states as well as the District of Columbia. (States without programs are Delaware, West Virginia, Alabama, Arkansas, and Rhode Island.)

While there are multiple CIT programs within some counties, many states are barely on the map in terms of the number of counties within each state that have programs. Most states only have CIT programs in only one or two counties.

Most law enforcement agencies can’t afford to train everyone.  They’d have to pay someone else overtime, and that can be a big expense.  As a result, many police departments prefer to train only a few specialized officers to deal with crisis issues, rather than making mental health training mandatory.

You can read more about it here.  The Supreme Court opinion is below the fold….

The Battle For Same Sex Marriage: A Timeline Graph

I love this graph from an article in today’s New York Times.  It shows what states did for and against the idea of same-sex marriage.

SSMovertime

You can see that the anti-SSM movement got out ahead of the issue in the mid 1990s by enacting laws banning same-sex marriage.  I have no way of proving this, but I think that by making same-sex marriage an issue, it became, well, an issue.  And that motivated same-sex marriage proponents to organize and lobby and take the issue to the courts.  Once Massachusetts ruled that same-sex bans were unconstitutional in 2003, the floodgates opened.

I don’t think the floodgates opened because the notion of same-sex marriage became fashionable or popular.  I think they opened because once people started to examine and think about the issue, there was simply no constitutional (or even moral) reason for the government to discriminate against homosexual love.

But yeah.  If you had asked me in 1995 if there would be such a thing as legally-recognized gay marriage in this country, I think I would have answered “someday, but not in my lifetime.”  It is the great civil rights issue of my generation, and I really believe it will be over in June.

Same-Sex Marriage Case Being Heard In Supreme Court Today

Today, the US Supreme Court will hear oral arguments on Obergefell v. Hodges, one of several same-sex marriage cases brought to the Court.

Obergefell v. Hodges requires the Court to answer: “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

The Washington Post has information on the lawyers who will be making the arguments.

SCOTUSblog is liveblogging the oral arguments.  Here are some snippets, as reported by SCOTUSBLOG:

[T]here was one interesting exchange between Justice Scalia and two of his more liberal colleagues. Scalia asked whether, if petitioners win, a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding. Bonauto answered yes. Scalia pressed the point though, arguing that he could not understand how a state could permit somebody to hold a license to marry people if that person would not exercise the power consistently with the Constitution. After a little more back-and-forth, Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination. Justice Breyer then chimed in and quoted the First Amendment. Ultimately, Justice Scalia seemed satisfied that a minister could refuse to perform those weddings… by Eric Citron 10:44 AM

And this…..

One very interesting aspect of the early argument was that it was primarily a set of questions about what “marriage” means as an institution, and accordingly, whether it is “irrational” or “invidious discrimination” to exclude gays and lesbians. As a consequence, you had some Justices emphasizing the “millennia long” definition of marriage as between a man and a woman, and other Justices — like Ginsburg — emphasizing the relatively new character of egalitarian marriage, now sponsored by the state governments, on which gays and lesbians were seeking to enter. You also had a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece). There was a parallel line of questioning about whether bans on interracial marriage were as consistent as the “millennia long” definition of marriage as uniting a man and woman. Doctrinally, this all seemed to float somewhere above the bottom line question of whether states were discriminating against gays and lesbians or somehow marking them as less favored members of society… by Eric Citron11:05 AM
And…
So several Justices wanted to know, for example, whether a state could deny recognition to all marriages performed in another state. They were skeptical when the suggestion was that a state might be able to do that…. by krussell12:40 PM
And….
A little surprisingly, Justice Scalia asked tough questions of the State — he wanted to know why the text of the Full Faith and Credit provision did not extend to marriages… by krussell 12:38 PM
UPDATE (11:08 am):

This….

UPDATE #2:  Here are the audios of the arguments….

First question —

PART ONE

Fast forward to the 27:00 mark if you want to hear the “burn in hell” protester and Scalia’s quip afterwards.

PART TWO

Second question —

SCOTUS Sends NC Redistricting Map Back To NC

Yesterday, the Supreme Court rejected a Republican-drawn map of congressional districts in North Carolina.   The justices ordered the NC Supreme Court reconsider whether North Carolina lawmakers inappropriately redrew the electoral map to consign large populations of black voters, a Democratic constituency, to a disproportionately small number of districts, the effect of which gives Republicans a clear electoral advantage.

Good Briefs: Amicus Filings in the Supreme Court Marriage Equality Case

Last Friday was the deadline to submit amicus briefs to the Supreme Court in support of marriage equality. Over 60 different briefs were filed by various “friends of the court,” including coalitions, organizations, scholars, and individuals. Contained within them are a variety of arguments in favor of recognizing same-sex couples’ right to marry, ranging from the more legal and technical to the more historical and personal.

And a few odd ones.  Here is one from the Cleveland Choral Arts Association, complete with West Side Story lyrics and everything (it really gets going at p. 29)

Cleveland Choral Arts Association Amicus Brief by Equality Case Files

But there are obviously more serious ones that tackle the arguments made same-sex opposition.

Social conservatives still argue that because only different-sex couples can biologically produce children, only they should be allowed to marry.   But children actually present a compelling case for same-sex couples’ right to marry.  There are many amicus briefs to the court on this subject, from such organizations as the Donaldson Adoption Institute, the Child Welfare League of America, the North American Council on Adoptable Children, and Voice for Adoption.  Here is an excellent “Voices of Children” brief, filed by the Family Equality Council and COLAGE — it highlights the tens of thousands of children being raised by same-sex couples who have benefited or could benefit from their parents marrying.

Family Equality Council, et al., Amicus Brief by Equality Case Files

And you know the argument rooted in “traditional” marriage?  And how we can’t go changing the definition of marriage?  Well, the American Historical Association has something to say about that.  Their brief outlines the many ways marriage has changed over time. “The historical record contradicts attempts to cast marriage as serving any single, overriding purpose,” the historians write. “And it contradicts attempts to present marriage as a static institution so rooted in ‘tradition’ as to insulate it from constitutional challenge.” To the contrary, they note, “marriage has remained a vital institution because it is not static.”

Historians of Marriage & American Historical Association Amicus Brief by Equality Case Files

And finally, the religious liberty argument.  Conservatives attempt to justify marriage discrimination against LGBT people based on their religious beliefs.

But an amicus brief from a large coalition of religious organizations emphasizes that “civil recognition of same-sex relationships through lawful marriage is fundamentally consistent with the religious pluralism woven into the fabric of American law, culture, and society.” Many religious traditions now ordain gay and lesbian clergy, welcome same-sex couples and their families, and affirm the inherent dignity of LGBT people, including their right to marry someone of the same sex and have that union solemnized in faith. This, they point out, has no implications for those with different views, whose anti-gay religious beliefs and traditions will still be protected under the Constitution. Signers of that brief include leaders of the Episcopal Church, the UCC, various rabbinical associations and synagogues, the Unitarian Universalist Association, Muslims for Progressive Values, and LGBT groups from Presbyterian, Methodist, and Lutheran denominations.

Episcopal Church, et al. Amicus Brief by Equality Case Files

(HT: Equality Case Files.)

Alabama and Gay Marriage

Well, you know we’ve crossed over when Alabama starts with the gay marriage thing.  An order from a federal judge allowing gay marriage was to take effect this morning.

But what’s that?  It’s Chief Judge Roy Moore (a state, not federal, judge) to the rescue.  If you don’t remember, Judge Moore is often known as the “Ten Commandments Judge.” When Moore, a devout Christian who often relies on Biblical scripture in his rulings, began his judicial career as an Alabama circuit court judge in the 1990s, he placed a Ten Commandments tablet he had carved himself behind his courtroom bench and began instituting prayer before jury selection.

Years later, Moore resurrected the Ten Commandments debate when he had a 5,200-lb. granite Ten Commandments monument commissioned and placed inside the Alabama State Judicial Building. Two lawsuits were filed, and by August 2003, a federal judge ordered the monument removed. Again, Moore refused, forcing his fellow justices to remove it instead and sparking thousands of protesters to rally in support of Moore outside the state judicial building. But they weren’t able to save his job. Later that year, a state judicial panel removed Moore from his post as chief justice.

And now, here he is again:

In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here.

“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, the chief justice wrote in his order.

The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state’s 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.

But, no.  He was thwarted:

Gay couples got married in Alabama on Monday despite a last-minute push from the state’s chief justice to stop them.

The U.S. Supreme Court declined to block a federal court order from January requiring the state to issue marriage licenses to gay couples. In Birmingham, cheers and applause went up at the probate court as licenses were issued.

“We have large crowds generally on Valentine’s Day here,” Judge Alan King of Jefferson County Probate Court told NBC News by phone. “This is by far the largest crowd that I’ve seen. It’s a very happy occasion.”

Moore is not willing to give up the fight:

Moore, in a telephone interview with NBC News, insisted on Monday that the federal courts had gone too far, and had no power to order state probate judges to do anything.

“A lot of states in this union have caved to such unlawful authority, and this is not one,” he said. “This is Alabama. We don’t give up the recognition that law has bounds.”

“Once you start redefining marriage, that’s the ultimate power,” he added. “Would it overturn the laws of incest? Bigamy? Polygamy? How far do they go?”

The thing is, Judge, the federal court governing your state has addressed this “redefining marriage” argument and how bogus it is.  MANY courts have.  You lost.  You are a loser.  Get over it.

Moore, by the way, has no jurisdiction.  He’s not the judge of any case involving same-sex marriage.  Even as the Chief Judge of Alabama state courts, he simply cannot intervene in contravention of a federal court ruling.

Alabama has done this before, by the way….

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Marriage Equality Setback Might Mean Fast Track To Supreme Court

On Thursday afternoon, the United States Court of Appeals for the Sixth Circuit just became the first federal appeals court in the country to side with marriage discrimination. Although the immediate effect of this court’s 2-1 decision is that marriage equality will not quickly become the law in Michigan, Ohio, Kentucky and Tennessee, the most important consequence of the Sixth Circuit’s holding is that there is now a “circuit split” on the question of whether same-sex couples must be allowed to marry under the Constitution. A circuit split, which occurs when two or more federal appeals courts disagree on the same question of law, is one of the most common reasons that the Supreme Court agrees to hear a case. Thus, the Sixth Circuit’s decision on Thursday all but guarantees that the justices will decide whether the Constitution’s promise of equality extends to gay people in all 50 states.

To date, the Fourth, Seventh, Ninth and Tenth Circuits have all sided with equality, along with nearly every single federal trial judge to consider the question after the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013. Moreover, the Supreme Court has stood aside and allowed the federal appeals court decisions supporting marriage equality to take effect. The momentum is clearly against discrimination, and Judge Jeffrey Sutton’s opinion for the Sixth Circuit shows a keen awareness of this fact. His decision reads like the Custer’s Last Stand of judicial opinions. In it, he tries to anticipate every single legal argument that can be raised in support of marriage equality, and then he attempts to bat it down.

To the justices who concern themselves with how the Constitution was understood at the time it was written, Sutton warns that “[n]obody in this case . . argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” To those who worry about the legacy of anti-gay animus in the United States, he claims that bans on marriage equality “codified a long-existing, widely held social norm already reflected in state law.” To those that fixate on tradition, Sutton writes that “a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries.”

According to longstanding Supreme Court precedent, however, groups that have historically been subject to discrimination that has little basis in their ability to “perform or contribute to society” enjoy heightened protection against discrimination under the Constitution. Sutton concedes the legacy of discrimination against gay people, yet he discounts its relevance to this case. His explanation for why is worth quoting at length:

We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens. Stonewall, Anita Bryant’s uninvited answer to the question “Who are we to judge?”, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point. But we also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans almost every society in history. By contrast, “American laws targeting same-sex couples did not develop until the last third of the 20th century.” This order of events prevents us from inferring from history that prejudice against gays led to the traditional definition of marriage in the same way that we can infer from history that prejudice against African Americans led to laws against miscegenation. The usual leap from history of discrimination to intensification of judicial review does not work.

Sutton is probably correct that marriage discrimination did not emerge in the same way that Jim Crow laws did. Jim Crow was part of a conscious and comprehensive effort to reduce African Americans to second-class citizenship. Laws excluding same-sex couples from the blessings of marriage, by contrast, were not always enacted with such conscious intent. But even if Sutton is correct that marriage discrimination was not enacted with the same conscious intent as Jim Crow, it is hard to see why that justifies weakening the Constitution’s promise of equality. Why does anti-gay bias become less harmful or less invidious because it was, until recently, so tightly woven into American culture that it would never have occurred to generations of Americans to extend equal rights to gay couples?

Discrimination, moreover, is does not become constitutional simply because it was enacted for relatively benign, or even benevolent, purposes. Many of the early cases challenging gender discrimination, for example, targeted laws that were intended to protect women or even place them on a chivalric pedestal. Craig v. Boren, which is arguably the Supreme Court’s most important gender discrimination case, struck down a law that discriminated against men. It is difficult to argue that the Oklahoma lawmakers who enacted that law did so because they were biased against males — especially because the law was enacted at a time when it was difficult for women to be elected to public office.

In any event, Sutton’s opinion is likely to be reversed by the Supreme Court. It is very unlikely that the justices would have allowed other court decisions siding with marriage equality to take effect unless they believed that there are five votes on the Court to extend marriage equality throughout the land.

Fourth Circuit Overturns Virginia Same-Sex Marriage Ban

The religious right continues losing their reactionary culture war, as a federal appeals court strikes down Virginia’s ban on marriage equality.

And this ruling will also affect conservative bans on same-sex marriage in West Virginia, North Carolina and South Carolina, so it’s a significant defeat for the forces of atavism.

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” the divided three-judge panel of the 4th U.S. Circuit in Richmond concluded.

[…]

The 4th Circuit opinion also will affect marriage laws in other states within its jurisdiction, including West Virginia, North Carolina and South Carolina. Only Maryland has legalized same-sex marriage.

Here in North Carolina, there are three cases which challenge the same-sex marriage ban.  In one of them, one of the plainitiffs is medically ill, and the ACLU has asked for expedited relief.  I expect the judge in that case will, in light of the Fourth Circuit decision, strike down NC's ban as well.

That might not mean gay marriage is coming to North Carolina.  More likely, it will be put "n hold" pending an inevitable Supreme Court decision.

Hobby Lobby Wins

In a not-very-suprising 5-4 decision, the Supreme Court decided in favor of Hobby Lobby in the recent case involving religious freedom and corporations.  As a result of the holding,  business owners with religious objections to birth control may defy federal rules requiring most employers to include contraceptive care in their health plans.  This is in direct contravention of what the Supreme Court held in its 1982 United States v. Lee decision, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 

The opinion is here.

Fortunately (and thankfully), the Supreme Court was willing to put limits on this:  this holding appears limited to closely held corporations such as Hobby Lobby, which is operated by a single wealthy family.  Keep this in mind when you read commentary about this case — the Court did not give religious freedom to, say, Apple and Amazon.  Just a very narrow set of corporatoins (which would, I think, include Walmart).

Still, the opinion is wrongly decided, and the best explanation why is here.

Wait, They Can’t Do That!

Can they?

WASHINGTON — The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Breaking: SCOTUS Makes The Money-In-Politics Problem Worse

Further loosening the reins on the role of money in politics, the U.S. Supreme Court today struck down restrictions on the grand total that any person can contribute to all federal candidates for office.

Today's decision left intact the cap of $2,600 per election that a contributor to give to any single candidate for federal office, but it invalidated the separate limit on how much can be contributed to all federal candidates put together — $48,600. 

The law was challenged by the Republican Party and an Alabama businessman, Shaun McCutcheon, who argued that the contribution ceilings were an unconstitutional restriction on his free expression.

"It's about freedom of speech and your right to spend your money on as many candidates as you choose. It's a basic freedom," McCutcheon said in bringing the challenge.

Supporters of what's known as the aggregate contribution limit said its purpose was to help prevent corruption. Without it, warned Fred Wertheimer, a longtime proponent of federal regulation of contributions, "you will establish a system of legalized bribery like we used to have before the Watergate scandals."

Under the aggregate limits, an individual could donate a maximum of $48,600 to all candidates for federal office plus another $74,600 to national political parties, state and local political parties, and political action committees — a grand contribution total of $123,200 per election.

House Speaker John Boehner hailed the decision, saying "freedom of speech is being upheld."

The Hobby Lobby Case

Justice Anthony Kennedy, on whose vote the Hobby Lobby SCOTUS case rests, seems very concerned about the government forcing corporations to cover abortion:

WASHINGTON, DC — Justice Anthony Kennedy thinks gay people are fabulous. All three of the Supreme Court’s most important gay rights decisions were written by Justice Kennedy. So advocates for birth control had a simple task today: convince Kennedy that allowing religious employers to exempt themselves from a federal law expanding birth control access would lead to all kinds of horrible consequences in future cases — including potentially allowing religious business owners to discriminate against gay people.

Kennedy, however, also hates abortion. Although Kennedy cast the key vote in Planned Parenthood v. Casey upholding what he called the “essential holding of Roe v. Wade,” he’s left no doubt that he cast that vote very grudgingly. Casey significantly rolled back the constitutional right to choose an abortion. And Kennedy hasn’t cast a single pro-choice vote in an abortion case in the last 22 years.

So Hobby Lobby and Conestoga Wood, the two companies claiming that they should be exempt from the birth control rules had an ace in their pocket as well. Their path to victory involved convincing Kennedy that their cases are really about abortion — and it looks like Kennedy convinced himself of that point on his own.

It was clear from the get go that the Court’s liberals understood that their best course involved highlighting the dangerous consequences of a victory for Hobby Lobby. Paul Clement, the de facto Solicitor General of the Republican Party who argued the case on Hobby Lobby’s behalf, barely uttered his first sentence before Justice Sonia Sotomayor cut him off to ask what other medical procedures religious employers could refuse to cover in their employee health plans. Justice Elena Kagan quickly joined the party. If Hobby Lobby can deny birth control coverage, Kagan asked, what about employers who object to vaccinations? Or blood transfusions?

When Clement tried to deflect this list, Kagan came armed with an even bigger what. What of religious employers who object to gender equality, or the minimum wage, or family medical leave, or child labor laws? If the Supreme Court agrees with Hobby Lobby’s brief, which argues that laws burdening a corporation’s purported religious faith must survive the “most demanding test known to constitutional law,” then there would be few laws corporations could not exempt themselves from following.

Clement’s argument time then took a number of detours, with the Court’s three women dominating the questioning. Justice Kagan pointed out that religious liberty cases have never applied the same strict constitutional rule applied in race cases. Justice Ruth Bader Ginsburg wondered how the federal religious liberty law at issue in this case — the Religious Freedom Restoration Act (RFRA) — could have passed almost unanimously if it lead to the deeply controversial results advocated by Clement. Justice Sotomayor wondered how it is possible for a corporation to exercise religion.

The justices also spent a good amount of time discussing whether Hobby Lobby faces any real burden at all, since they could always simply stop offering health benefits and pay a tax — a position first articulated in a blog post written by Professor Marty Lederman.

At the end of Clement’s first turn at the podium, Kennedy asked the question that will probably give most hope to Team Birth Control. What about the rights of employees who may be hurt by their employer’s decision not to follow the law? For the moment, it appeared that Kennedy was worried about the parade of horribles that could follow a decision for Hobby Lobby.

Indeed, not long after Solicitor General Don Verrilli took the podium to argue the government’s case, it appeared that he may ultimately emerge victorious. Clement spent much of his argument on his heels. The three women on the bench appeared quite confident in their questioning. Kennedy was silent for much of Verilli’s argument.

But then he made a statement that will likely doom the government’s case. “Your reasoning would permit” Congress to force corporations to pay for abortions, Kennedy told Verrilli. This was not the Anthony Kennedy that worried about conservatives imposing their anti-gay “animus” on others, this was the Anthony Kennedy that views abortion as a grave moral wrong. Shortly after Kennedy made this statement, Justice Kagan’s face dropped. It appeared that she’d just figured out that she would be joining a dissenting opinion.

It’s worth noting that Kennedy expressed a different concern than one offered shortly thereafter by Chief Justice John Roberts. Hobby Lobby objects to four forms of contraception on the mistaken ground that these contraceptive methods are actually forms of abortion — a brief filed by numerous medical organizations explains that they are not. Roberts, however, suggested that someone’s mere belief that something is an abortion is enough to trigger an religious exemption to federal law.

This is insane.

Suppose I had the "mere belief" — religiously held — that black people evolved from mud and white people were descendents of Adam and Eve, and had a rightful place in heaven and on Earth?  And in my place of employment?

Of course, you don't have to go that far.  No Muslim or Jewish employer gets to demand that their employees not get coverage for, say, illnesses resulting from eating pork. No Hindu employer gets to restrict health coverage for people who eat beef or were born to the wrong caste.  Why do Christians get a pass?

We have actually addressed this issue before, in 1990, in Employment Division, Oregon Department of Human Resources vs. Smith.  In that case,  Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct."

That case involved the same question: what happens when one's religious belief runs up against a generally-applicable law?

And the answer was: Tough.  Here's what Scalia — yes, Scalia — wrote:

We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594 -595 (1940): "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted)." We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145(1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Id., at 166-167.

Emphasis mine.

There simply is no reason why abortion is entitled to some special category of religious exemption, where peyote and polygamy were not.

But it looks like this is where the Supreme Court is headed, and as Scalia notes, it will be throwing aside centuries of jurisprudence in doing so (Scalia is likely to be one of the justices contraditing himself).

Very sad.  And a very dangerous precedent.

 

DOMA and Prop 8 Decisions

Pretty much like I predicted: DOMA overturned, and Prop 8 booted because plaintiffs lacked standing.

What happens next: Since the Court ruled that the federal government cannot discriminate against same-sex marriages under the Equal Protection Clause, all the remains is for that same reasoning to be applied to the states.  After all, states cannot violate the federal constitution either.  So some new case must work its way up through the courts.  It will probably be a case where someone was married in, say, Massachusetts, and then moved to, say, North Carolina, and was denied some state benefit relating to marriage.

Or it could simply be a case where a gay couple tried to get married in a state not recognizing gay marriage, and they are denied.  They sue the state saying it violates the Equal Protection Clause.

Either way, this is the beginning of the end.

That Didn’t Take Long

TPM:

Texas is wasting no time capitalizing on the Supreme Court’s ruling on the Voting Rights Act.

Shortly after the high court issued a sweeping 5-4 decision Tuesday striking down a centerpiece of the historic 1965 law, Texas Attorney General Greg Abbott vowed to immediately implement a controversial voter ID law in the Lone Star State that was blocked last year by the now-gutted preclearance provision of the Voting Rights Act.

“With today’s decision, the State’s voter ID law will take effect immediately,” Abbott said, according to the Dallas Morning News. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

The provocative move is the first in what could be a series of clashes between the Justice Department and state and local governments after the Supreme Court’s ruling. The court invalidated the section of the law specifying which state and local governments (all with a history of racial discrimination) are required to receive federal pre-clearance before making any changes to their voting laws. Texas was one of those states.

Shortly after the Supreme Court handed down its decision, U.S. Attorney General Eric Holder warned in a televised speech that the Justice Department will take “swift enforcement actions” against any efforts to exploit the ruling and enact discriminatory voting laws. But the DOJ will have one less tool to do so.

Abbott fired off a series of tweets promising to move forward with the voter ID law, one of which declared that “Eric Holder can no longer deny [voter ID] in [Texas].”

 

Supreme Court Cuts Voting Rights Act of 1964

Today, the Supreme Court in a 5-4 ruling, struck down key provisions of the Voting Rights Act.  Basically, they eliminated the requirement that jurisdictions with a history of discrimination pre-clear election and voting law changes to ensure they do not disenfranchise minority voters. While the remaining provisions will still ban outright racial discrimination, those states and localities previously covered will now be able to implement changes first and victims will have to prove discrimination after the fact.

You may wonder how many times a proposed law fails to get-precleared in this day and age.  Well, in the past year, the U.S. Department of Justice denied pre-clearance to four laws it deemed discriminatory — and federal courts upheld three of those four determinations.  Those three cases involved stricter voter ID laws, shorter voting hours, and redistricting — all the ways in which the GOP tried to disenfranchise the minority vote this past election cycle.

It bears repeating that disenfranchising the minority vote is still forbidden under the Voting Rights Act, but now it will just become harder to stop the States from doing it once the pre-clearance oversight is scrapped.

DOMA and Prop 8: A Prediction

This week — probably Thursday — the Supreme Court of the United States (SCOTUS) will release its opinion on two cases dealing with same-sex marriage.

One case challenges the constitutionality of the Defense of Marriage Act (DOMA).  Section III of DOMA prevents the federal government from treating same-sex couples (those legally married under state law) as "married" for the purpose of federal law . For example, someone who is legally married to a person of the same sex cannot currently receive spousal Social Security benefits should his or her spouse die.  This is, according to DOMA opponents, unconstritutional discrimination.

The second case concerns Prop 8 in California.  Prop 8, as you recall, was a statewide referendum banning gay marriages in California, passed by the people of California.  The district court and the appeals court both held that Prop 8 violates both the U.S. and California Constitutions.  There was also the thorny issue that some same-sex couples in California had already become married in that state before Prop 8 passed.

Both cases, taken together, give the Supreme Court a chance to address gay marriage.  Months ago, I gave a summary of possible outcomes:

Taken together, I suspect there are five possible outcomes:

(1)  SCOTUS will kick the can down the road.  It is possible, though I suspect unlikely, that both cases will be disposed of on issues other than the merits.  For example, there is a standing issue in the Prop 8 case ("standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place).  Conceivably, the court could rule on that, and never reach the merits.  The DOMA case has a standing issue as well.

(2)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, and force the federal government to accept it only where states accept it.  

(3)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, but the federal government does not have to accept it.  Basically, a ruling like this would say that same-sex marriages are not protected by the U.S. Constitution, and the federal government can discriminate.  This is essentially what we have now.

(4)  SCOTUS finds that same-sex marriages are protected by the U.S. Constitution, and therefore ALL states must recognize same-sex marriages.  The best of all outcomes.

(5) SCOTUS finds that the U.S. Constitution (14th Amendment) bars states from allowing same-sex marriage.  The worst of all outcomes.

Now it is time to stick my neck out and make predictions, which will, most assuredly, be wrong.  So here I go…..

In 1954, with Brown v. Board of Education, the Supreme Court lay down a landmark decision that laid to rest, with all finality, the issue of segregated schools.  No way, the Court said, and there was no wiggle room.  Not just for Topeka, Kansas (where the case arose), but everywhere.  Nothing was left to the states but to implement integration, with "all due haste".

I don't see that happening with same-sex marriage… with this Court.  It tends to be timid about making the sweeping apply-to-all-states kind of decisions.  It is very sensitive to its unelected status, and will want to avoid making "activist" decisions, even though the Constitution might demand it (as it did in Brown).  So it will, if at all possible, try to make its ruling as narrow as possible.  Scratch #4 and #5 above.

The smart money says, and I agree, that DOMA will fall.  Most say 5-4; I say 6-3.  I think you get Justice Kennedy and maybe Chief Justice Roberts voting with the "liberals": Justices Ginsburg, Breyer, Sotomayor and Kagan.  

There's little question that DOMA discriminates: it treats opposite-sex couples differently than same-sex couples.  That's undeniable.

It should be pointed out to the lay reader that "discrimination" isn't, in constitutional parlance, necessarily a bad thing.  After all, every single law discriminates.  A law against child molestation discriminates against, well, child molesters.  

So the key question, or one of them anyway, is whether the discrimination affects a "suspect class" of people.  Without getting too deep in the weeds, a "suspect class" is any group (a) that has been the subject of invidious discrimination, hostility, in the past, (b) that possesses an immutible trait and (c) whose distinguishing characteristic does not prevent them from becoming meaningul members of society.  Groups based on race fall into a suspect class.  Presumably, so do homosexuals, although the Supremes have not specifically said so.

The counterargument regarding DOMA is this: it doesn't discriminate based on sexual orientation.  After all, where DOMA says that marriage is between "one man and one woman", it is indifferent to the sexual orientations of either.  That is what I call "the cute argument" ("Hey, gay men can still marry women, so where's the discriminiation?!?") and watch for Scalia to breathe life into that.

Anyway, once you've got the general sense of what level of discrimination we're talking about, then the court will ask, "Is there any rational basis for this discrimination?" or "What is the important objective that the government is trying to achieve that accounts for this discrimination?"  In other words, it will look at the government interest.

And that's where the DOMA case crumbles.  There simply is no federal government interest in discriminating between same-sex couples and opposite-sex couples.  You know who says so?  The federal government.  The Obama Administration.  They're not even there in the Supreme Court to defend DOMA.  (It is being defended by a handful of Republicans in Congress).

Okay.  So DOMA flies by the wayside.  What about Prop 8?

That's trickier.

But my prediction is that the Supreme Court will "punt" the issue down the road as much as it can.  To the extent that they make a decision at all, I feel that they will limit it to California, and not all the states… even if all the states have provisions similar to that in the California constitution.

There are several ways that SCOTUS can "punt" this.  For one, they can resolve the case on the standing issue, and never reach the merits of whether or not Prop 8 violates the state and federal constitution.  "Standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place.  Like the federal government in the DOMA case, the State of California is not showing up to defend the results of Prop 8.  Who is?  A conglomeration of right wing groups opposed to same-sex marriage.  That is unusual.

The lower courts found that the plaintiffs in Prop 8 had standing.  The Supreme Court might disagree.  But if it does, what happens?  Does Prop 8 get reinistated, because "the will of the people" said it should?  Maybe.

But I think what is more likely to happen is that SCOTUS will rule that the plaintiffs have standing.  Even then, however, they will still avoid the tough question, and decide in favor of defendants for one reason, and one reason alone — that it is unconstitutional to take away a "right" once it has been given.

Remember, there was a time when same-sex couples could get married in California.  This was before Prop 8.  Then Prop 8 came along and stripped that right away.

This narrowly drawn opinion will probably win 5-4.  Justice Kennedy, as always, is seriously in play.  Kennedy stands as the author of Lawrence v. Texas and Roemer v. Evans — two key Supreme Court decisions overturning state laws on sexual orientation. Lawrence invoked privacy protections to invalidate sodomy laws, while Roemer struck down a Colorado constitutional amendment that would have prohibited antidiscrimination laws protecting gays.  On the other hand, Kennedy is also likely to be reluctant to overturn a sizable majority of state laws in one blow.

Chief Justice Roberts, I believe, is also in play.  Just as he did when he voted in favor of Obamacare, he may want to side with the majority only so he can write a narrow narrow opinion.

But whether it is Roberts or Kennedy (or both), I predict the result will allow SCOTUS to allow same sex marriage in California, but not allow that precedent to spread to other states which clearly do not want same sex marriage.  In doing so, the court will avoid having to answer THE salient question: "Does banning same sex marriage violate the federal constitution?"

So, a victory for California, but not the country.  For the rest of the country, the battle returns to state legislatures.

This half-ruling will leave open many questions, most notably, issues regarding full faith and credit between the states.  For example, if a same sex couple legally marries in Massachusetts, and moves to North Carolina, can a state-run North Carolina hospital deny visitation rights to one half of the same-sex couple, even though the law says it must allow it for opposite-sex couples?

Those kind of questions will not be answered this week.  Again, as I say, the Court will kick it all down the road and only address those questions when it absolutely HAS to.

For those of you who read the transcripts of Prop 8 (or saw the play "8"), I don't think there will be much discussion about the facts that came from that case (or rather, the lack of facts showing that same-sex couples make terrible parents).  Scalia is most likely to throw this crap in there, and possibly even insert "evidence" that wasn't raised at trial.  Yes, he's just that bad a justice.

SCOTUS Punts on Changing Affirmative Action

Big week for SCOTUS this week, with most eyes awaiting the DOMA and Prop 8 decisions.  Nothing happened with those today.  The Court scheduled more opinions for tomorrow (although I suspect there will be one more day after tomorrow, and that's when we'll get the gay marriage cases).

Interest was also high on what the Court would do regarding affirmative action in college admissions.  That case was Fisher v. University of Texas at Austin. Many thought the Court would take the opportunity to re-examine its previous rulings defending the legality of affirmative action (taking diversitry into account for college admissions). This morning, they did not — the precedent remains intact.  They merely sent the case back down to the Seventh Circuit, and asked them to review the case under a "strict scrutiny" standard.  (No matter what the Seventh Circuit does, the case is likely to come back up to the Supremes).

Monday at 10

With the session coming to a close, some thought the Supreme Court might announce its opinions today in the Prop 8 and DOMA cases.  

It did not.

So it looks like Monday at 10, the last scheduled opinion-reading of the Court for the term, and maybe not even then.  There are still several outstanding opinions, and it is likely that the Supreme Court will add another session next Thursday.

In any event, we'll know where the Supreme Court came down on same sex marriage within a week.  There are also a couple of important racism/affirmative action cases as well.  Next week will be interesting.

Snowden Is A Dick

I have been following with interest the various leaks from Edward Snowden, although I have not been writing about them much.  I write this post to officially say that the so-called whistleblower really is a self-aggrandizing a-hole, and not the 4th Amendment crusador that he envisions himself to be.

I join with others who ask — if he was so concerned about civil rights and privacy, why has he run to China (a place notorious for its lack of both)?

And then you read things that he says like today's Q&A with the Guardian:

First, the US Government, just as they did with other whistleblowers, immediately and predictably destroyed any possibility of a fair trial at home, openly declaring me guilty of treason and that the disclosure of secret, criminal, and even unconstitutional acts is an unforgivable crime. That's not justice, and it would be foolish to volunteer yourself to it if you can do more good outside of prison than in it.

Um, what?  He thinks that the disclousure of secret acts is a forgivable crime?  Since when?

He says what he is disclosing is "secret".  On that, I think we all agree.  But is it against the law?  Absolutely not.  Everything he has disclosed seems is within the law as it exists.  There is no legal abuse.  Yes, reasonable people can disagree about whether the laws are unconstitutional, but something being illegal and something being constitutional are two entirely different things.  Laws can be unconstitutional, but laws cannot be illegal.

And some of what he is disclosing clearly isn't unconstitutional.  For example, spying on foreign countries, including countries we are not at war with (like China).  Again, you may like the policy, but espionage against other countries is not unconstitutional… for one simple reason: The Constitution does not protect other countries.

In fact, he is complaing about things that the NSA is supposed to be doing.

He repeats his mistake here:

Congress hasn't declared war on the countries – the majority of them are our allies – but without asking for public permission, NSA is running network operations against them that affect millions of innocent people. And for what? So we can have secret access to a computer in a country we're not even fighting? So we can potentially reveal a potential terrorist with the potential to kill fewer Americans than our own Police? No, the public needs to know the kinds of things a government does in its name, or the "consent of the governed" is meaningless.

This is complete and total bullshit.  "Consent of the governed", which isn't in the Constitution by the way, does not mean that the public-at-large raises its collective hand and votes on what our intelligence agencies do in secret.  It never has meant that.  The Constitution, in fact, tells us how "consent of the governed" works — we elect leaders and they decide.  It's a representative democracy, moron.

Later, he rails against the "policy protections" that we have against our email, saying that policy protections are no protections at all.

Well, that's one way to look at it, I suppose.  But "policy" is pretty broad, and encompasses actual laws.  His argument basically is that laws can be broken, so any protections we have against privacy are meaningless.  And while that might be true, it also applies to anything.  I could say that laws against murder are meaningless, because people can break those laws and murder me.  Yeah, so?  What does he suggest?!?

It seems that Snowden may have possessed an ideal and naive view of what our government does.  I don't think anyone is surprised, and most people expect, our government to do intelligence surveillance, especially on foreigners.  I'm sure more aren't surprised that they are doing it on us.  There seems to be a system of checks and balances (FISA court overview, congressional debriefings) so that the potential for abuse is low.  And as for ACTUAL abuse of the laws, Snowden has not presented ANY evidence.  No evidence that the courts were avoided, for example.

I think it's a good thing to have a national discussion and reexamination of intelligence gathering to the extent that it infringes on our privacy and Fourth Amendment expectations.  And that's the only good that has some of this.  But I don't see any wrongdoing so far, except on Snowden's part.  This guy's a dick.  And a traitor.

UPDATE:  John Avarosis agrees with me

Famed NSA leaker Edward Snowden almost had me convinced of his sincerity.  Until today, when he released damaging information about US spying on Russia’s former president, and offered up no explanation for how such revelations jibe with his earlier claims to be fighting for the American people.

You don’t go and help the Russians if your goal is fighting for the American people, unless you have a darn good reason, and Snowden has so far given none for today’s new leaks.

***

It’s not clear what any of those have to do with Snowden’s earlier justifications for his leaks.  They don’t have anything to do with the NSA director lying to Congress.  They don’t have anything to do with the President not closing down Gitmo.  And they have nothing to do with the dangers the surveillance state pose to the privacy of Americans.  They weren’t spying on Americans in today’s stories, they were spying on Russian leaders and diplomats, among others foreign officials.  So Snowden’s earlier justifications for the leaks don’t seem to apply.  Then why did he do it?

***

And here’s where I really think Snowden lost me:

Congress hasn’t declared war on the countries – the majority of them are our allies – but without asking for public permission, NSA is running network operations against them that affect millions of innocent people…. And for what? So we can have secret access to a computer in a country we’re not even fighting?

So now Snowden thinks we should only spy on countries we’re at war with?  Who are we technically at war with?  North Korea?  Anyone else?  That makes for a pretty small list.  Even if what he really means is de facto wars like Afghanistan and Iraq, again, that’s a rather small list.  Can we spy on Iran?  How about Syria?  How about Cuba?  How about China?

It almost sounds as if Snowden objects to the entire notion of spying.  And if that’s the case, then why did he go to work at the CIA and the NSA in the first place if he’s morally repulsed by the notion of spying generally, and on Russia in particular?

Exactly.

Jan Brewer Is Too Crazy Even For Scalia

In an opinion by conservative Justice Antonin Scalia, a 7-2 Supreme Court held this morning that an Arizona law requiring voting officials to reject voter registration forms that are “not accompanied by concrete evidence of citizenship” conflicts with a federal law requiring states to use a uniform voter registration form for federal elections. Scalia once justified an anti-immigrant opinion with a reference to laws excluding “freed blacks” from southern states, and he called the Voting Rights Act a “perpetuation of racial entitlement. So his authorship of this opinion is both unexpected and a sign of the weakness of Arizona’s legal position in defending this law.

Supreme Court Refuses To Hear Planned Parenthood Appeal

This is good news.

Indiana passed a law attempting to strip Planned Parenthood of all of its Medicaid funding because it performs abortions among its medical services.  The courts, including the Seventh Circuit, said this was unconstitutional because the federal-state Medicaid health program for the poor is for general health services including cancer screening.

The state appealed to the U.S Supreme Court, which today decided not to hear the case.  This keeps the lower court decision intact.

Indiana is one of seven states to try this tactic to hurt women by removing funding for their healthcare.  Looks like all seven will have to go back to the drawing board.

A Little Late, Sandy

Justice Sandra Day O’Connor, the conservative retired justice who provided the fifth vote to install George W. Bush as president, is now having second thoughts about that decision:

Looking back, O’Connor said, she isn’t sure the high court should have taken [Bush v. Gore].

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”

“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.

Who Cares About The Effects Of Same-Sex Marriage?

In the Wall Street Journal today, Nelson Lund opines:

The Supreme Court is hearing two cases this week that represent a challenge to one of the oldest and most fundamental institutions of our civilization. In Hollingsworth v. Perry and United States v. Windsor, the court is being asked to rule that constitutional equal protection requires the government to open marriage to same-sex couples.

The claimed right to same-sex marriage is not in the Constitution or in the court's precedents, so the court must decide whether to impose a new law making marriage into a new and different institution.

This, of course, is the great slight-of-hand used by deceitful arguers.  After all, same-sex marriage is not a "new and different institution" — it's the exact same institution as opposite-sex marriage, just applied to different couples.  In the same way that interracial marriage is not a different institution than non-interracial marriage.

Having started with a lie, he sets up his premise:

The justices are unlikely to take so momentous a step unless they are persuaded that granting this new right to same-sex couples will not harm children or ultimately undermine the health of our society.

It's not a "momentous" step if you just apply the equal protection clause.

Lund then looks at the science:

A significant number of organizations representing social and behavioral scientists have filed briefs promising the court that there is nothing to worry about. These assurances have no scientific foundation. Same-sex marriage is brand new, and child rearing by same-sex couples remains rare. Even if both phenomena were far more common, large amounts of data collected over decades would be required before any responsible researcher could make meaningful scientific estimates of the long-term effects of redefining marriage.

This is, of course, a delaying tactic.  Did the court in Loving v Virginia wait for years, or decades, to see what the social science said about interracial couple raising kids?

And just what does he think the science is likely to show?  And since when do we throw out the Constitution for fear of what happens when it is applied?

Don't buy this crap.

Breaking News From Supreme Court… Already!

11:07 – there's this tweet from SCOTUSblog a mere 27 minutes ago:

What does that mean?  Stay tuned.

11:15 — Uh oh

It looks like SCOTUSblog is assuming Kennedy is not going to strike down Prop 8, and therefore, there are not 5 votes.  But I haven't given up on Roberts.

Well, fuck.

11:35 am - 

Tom Goldstein sums it up:

Much will be written about the Proposition 8 oral argument.  The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail.  He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms.  First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing.  That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority.   Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him.  Others on the left may agree.  That ruling would leave in place the Ninth Circuit’s decision.

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.  The Court would stay its hand for some time for society to develop its views further.  But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.

 

Supreme Court Preview: Same-Sex Marriage Cases

Two cases will be heard by the Supreme Court this week, starting tomorrow, which will have an impact (even if it is a wash) on same-sex marriage throughout the country.

The first case is a 2008 ballot initiative in California known as Proposition 8, which defines marriage in the state constitution as a legal union of one man and one woman. The second case is a challenge to the 1996 federal Defense of Marriage Act (DOMA), which for purposes of federal benefits also defines marriage as a union of one man and one woman.

Lawyers challenging the measures argue that Prop. 8 and DOMA violate the rights of same-sex couples by treating them like second-class citizens. “With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage,” writes Washington lawyer Theodore Olson in his brief seeking to overturn Prop. 8.

On the other side, lawyers counter that it is proponents of same-sex marriage who are seeking to change an institution that has existed throughout history as the symbolic joining of male and female. Preservation of this tradition is not discrimination, they say.

“Providing special recognition to one class of individuals does not demean others who are not similarly situated,” writes Washington lawyer Charles Cooper in his brief urging the court to uphold Prop. 8. “It is simply not stigmatizing for the law to treat different things differently, or to call different things by different names.”

Lurking in the background with both of the cases is a separate issue: “standing”.  “Standing” means whether or not the party in the lawsuit has the right to be there.  DOMA is a federal law, which means that the federal government — the Obama Administration — should be defending its constitutionality.  Prop 8 is a California law, which means that the California government — the Brown administation — shold be defending its constitutionality.

But both Obama administration and the Brown administration (as well as the previous Schwartzenager administration) have concluded that DOMA/Prop 8 are indeed constitutional, and chose not to defend them.  So who is defending DOMA before the Supreme Court?  The Republicans in Congress have hired lawyers to do it.  And who is defending Prop 8?  Special interest lawyers paid by groups like Focus on the Family.

And there rests an issue, in both cases, as to whether the party defending the law has “standing”.

But setting standing aside, the most basic question at the heart of the debate over same-sex marriage is whether the US Constitution protects a fundamental right to marry regardless of sexual orientation.

Gay marriage proponents say it clearly does. Supporters of traditional marriage counter that the Supreme Court has never recognized such a right. They cite a 40-year-old precedent, Baker v. Nelson, that upheld a Minnesota law restricting marriage to one man and one woman.

But that’s not the precise issue before the court. The justices have agreed to examine whether same-sex couples are entitled – under the Constitution’s equal protection provisions – to be treated equally when it comes to marriage and the benefits of marriage.

And even if the court says, yes, same-sex couple should be treated equally, there still remains a question of whether or not that actually means it must be called marriage.

And a question of whether that should apply to ALL the states.

In looking to devine where the court will go, the most considered case is Lawrence v. Texas, decided eight years ago.  That case involved a Texas law which prohibited sodomy, but only homosexual sodomy.   “Swing” justice Kennedy ultimately decided that violeted equal protection and discriminated against homosexuals.  In writing the opinion in Lawrence, Kennedy took great pains to say the case had no bearing on same-sex marriage.  In his dissent, Scalia wrote “don’t believe that”, arguing that once you establish gays as a class to be protected under the law, then same-sex marriage is the next thing to be allowed.

And he may be right.

To prevail at the high court, supporters of California’s Prop. 8 and DOMA must be able to offer a persuasive justification for treating gay and lesbian couples differently from heterosexual couples.

Because of the Lawrence decision, they can’t argue that society views homosexual conduct as immoral. That argument is off the table.

Instead, proponents of the traditional view of marriage argue that the government is entitled to grant preferential treatment to couples of the opposite sex to encourage what it considers the ideal arrangement for raising children: two biological parents in a stable home, providing male and female role models for their own children.

Traditional marriage supporters contend that the institution would be irrevocably eroded to the detriment of biological fathers and mothers – and children – if same-sex marriages are permitted. Such views are influenced by religious beliefs, biblical teachings, and people’s own sense of morality.

Gay marriage proponents counter that same-sex couples are ca-pable of raising well-adjusted children in stable, loving homes just as well as married heterosexual couples. Male-female procreation can’t be a qualification for marriage, they say, because infertile couples and the elderly are allowed to wed with no inquiry into their ability or propensity to make babies.

Lawyers for same-sex couples want Kennedy to take up where he left off in the Lawrence decision and establish heightened civil rights protections for gay and lesbian Americans like those for African-Americans and women.

In contrast, lawyers supporting traditional marriage are seeking to channel that part of Kennedy that found it necessary to write the disclaimer in the Lawrence decision.

One of their strongest arguments is that it is not the right time for the high court to intervene in the same-sex marriage debate. Gays and lesbians are beginning to achieve political success at the state and national level, but the vast majority of states still maintain the traditional definition of marriage. There is no critical mass of states seeking change.

By the time the high court declared bans on interracial marriage unconstitutional in the Loving case in 1967, all but 16 states had already repealed their anti-miscegenation laws. In 1960, all 50 states had anti-sodomy laws. By 2003 when the high court declared such laws invalid in the Lawrence decision, 37 states had already repealed their sodomy laws. Only 13 still had them on the books.

Contrast that with the current landscape for same-sex marriage. Nine states, and the District of Columbia, recognize it – but 41 do not. “I’m unaware of Justice Kennedy ever having voted to strike down the laws of 41 states,” Carpenter says.

Still, with so many variables (including the issue of standing), there are any number of possible outcomes.  Perhaps the court will ultimately let one (or both) cases turn on the standing issue, and not reach the same-sex/equal protection issue at all.  Maybe they strike down Prop 8 in California for reasons limited to that state (gays were given the right to marry before Prop 8 passed), but not let it spread to other states.  Or maybe they will say that ANY state which forbids gays to marry is violating the U.S. Constitution.

Anyway, the circus starts tomorrow, and court-watrcher will be paying close attention to the kinds of questions that are asked, especially by Kennedy and Roberts.

 

More On Scalia And The Voting Rights Act

From TPM:

In expressing his deep skepticism Wednesday for the constitutionality of a centerpiece of the Voting Rights Act, Justice Antonin Scalia questioned the motivations of Congress for repeatedly reauthorizing it since it was initially passed in 1965.

I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia said during oral arguments in Shelby County v. Holder. “They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful — the Voting Rights Act. Who is going to vote against that in the future?

At issue was the constitutionality of Section 5 of the 1965 law, which requires state and local governments with a history of racial discrimination to pre-clear any changes to their voting laws with the Justice Department prior to enacting them.

Congress has renewed the law four times, most recently in 2006 for a period of 25 years. The margin of victory was 99-0 in the Senate and 390-33 in the House.

Scalia attributed the repeated renewal of Section 5 to a “perpetuation of racial entitlement.” He said, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

***

Scalia signaled that he fears Section 5 will be repeatedly reauthorized into perpetuity, regardless of whether it’s justified, unless the courts step in.

“This is not the kind of question you can leave to Congress,” he said.

So…,. Justice Scalia thinks it is bad for Senators to vote against the Voting Rights Act; they'll look bad.  And apparently, he's coming to the rescue.

I'm absolutely appalled by this.  He's a judge; not a political commentator.  His job is to follow the law, not speculate about why a Senator may or may not vote for it.  This IS the kind of question you leave to Congress, and for whatever reason, they have voted overwhelmingly to renew the Voting Rights Act.  Political pressure?  So be it.  Judges are not supposed to usurp the political process.

Can you imagine of judges started ignoring the law, or overturning laws, simply on the rationale that "senators don't really want to vote for this law — they just felt compelled to satisfy their constituents"?  Yes!  It's the people that are supposed to be at the heart of democracy.  Not judges.

Maybe this is a better way to put it:

Compare and contrast.

1. Justice Scalia today regarding the voting rights act: "This is not the kind of question you can leave to Congress."

2. The United States Constitution, Amendment XV: "SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation." (My emphasis.)

 

Quote Of The Day

During U.S. Supreme Court oral argument on the constitutionality of a key section of the Voting Rights Act this morning, several justices expressed extreme hostility to the civil rights statute, according to early reports from the courthouse. Justice Antonin Scalia called it “perpetuation of racial entitlement.” 

That's right.  Why should black people be entitled to vote, and why perpatuate it?

(Moron)

Apparently, there were audible gasps from the gallery.

Breaking: SCOTUS To Review DOMA and Prop 8 Cases

The Supreme Court granted cert in the so-called "Prop 8" case from California.  They also decided to hear the appeal of a case testing the constitutionality of DOMA – the Defense of Marriage Act.  Section III of DOMA prevents the federal government from treating as married for the purpose of federal law same-sex couples who are legally married under state law. For example, someone who is legally married to a person of the same sex cannot currently receive spousal Social Security benefits should his or her spouse die. Couples subject to such discrimination currently reside in Massachusetts, New Hampshire, Vermont, Connecticut, Iowa, Washington DC, New York and California, and soon in Washington State, Maryland and Maine.

The DOMA case essentially means that the Court will decide if the federal government must respect the same-sex marriage laws of states that permit same-sex marriage.

But the Prop 8 case means that the Court will also consider whether states can have same-sex marriage at all.

The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.

These two cases will be heard in late March, probably back to back — with a decision coming out probably on June 27 (mark your calendars).

Taken together, I suspect there are five possible outcomes:

(1)  SCOTUS will kick the can down the road.  It is possible, though I suspect unlikely, that both cases will be disposed of on issues other than the merits.  For example, there is a standing issue in the Prop 8 case ("standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place).  Conceivably, the court could rule on that, and never reach the merits.  The DOMA case has a standing issue as well.

(2)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, and force the federal government to accept it only where states accept it.  

(3)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, but the federal government does not have to accept it.  Basically, a ruling like this would say that same-sex marriages are not protected by the U.S. Constitution, and the federal government can discriminate.  This is essentially what we have now.

(4)  SCOTUS finds that same-sex marriages are protected by the U.S. Constitution, and therefore ALL states must recognize same-sex marriages.  The best of all outcomes.

(5) SCOTUS finds that the U.S. Constitution (14th Amendment) bars states from allowing same-sex marriage.  The worst of all outcomes.

A #4 outcome is easy to predict.  We know that the four liberal justices will be in favor of it.  Kennedy, the "swing" vote on the Court, is likely to be in favor of it as well, given his opinion in Lawrence v. Texas.  But it is not a sure thing.  The conservative "five" are wary of federalism, where the federal government imposes things on states.

I see #5 as unlikely.  That would be "activist", considering that seven states now allow same-sex marriage.

In any event, it will be an interesting spring.  A media circus.  

Prediction: I give Fox News about two days before they call upon Justice Elena Kagan to recuse herself because she plays softball and …. you know.

To be continued, no doubt.