Justice Scalia Will Have a Field Day Tomorrow with Massachusetts “Buffer Zone” Case

Law, Politics, , , , ,
Justice Antonin Scalia, ready to pounce.
Justice Antonin Scalia, ready to pounce. Picture via Wikimedia Commons.

McCullen v. Coakley has received a good deal of attention in the press already because of its contentious subject matter: anti-abortion activists are challenging a 2007 Massachusetts statute that created 35-feet “buffer zones” around the entrances, exits and driveways of all reproductive health care facilities in the state, arguing that the law infringes upon their First Amendment rights to share their views in a public forum. Due to personnel changes, there is a very good chance that the Supreme Court will end up overturning its own thirteen-year-old precedent in order to invalidate the Massachusetts law. But just in case you needed another reason to follow the oral arguments for McCullen v. Coakley tomorrow, here’s one more: even though the case has zero bearing on the constitutionality of abortion, Justice Scalia is going to give us some choice quotes railing against Roe v. Wade and the Court’s abortion jurisprudence.

Why do I think this? Just look at Justice Scalia’s dissent in Hill v. Colorado, the 2000 case that the anti-abortion activists in Massachusetts are asking the Supreme Court to overrule. In Hill, six justices (Chief Justice William Rehnquist and Justices Stevens, O’Connor, Breyer, Souter and Ginsburg) voted to uphold a Colorado law that was similar but arguably posed even less of a First Amendment problem than the Massachusetts law now in question: Colorado’s statute created a buffer zone of only eight feet, and it applied to all health care facilities. Writing for the majority, Justice John Paul Stevens balanced anti-abortion protestors’ right to free speech against the “recognizable” privacy interests of the “unwilling listener” and came out in favor of the latter. Stevens reached back into a 1928 Court opinion by Justice Brandeis for “the right to be let alone” from unwelcome speech and ran with it, concluding that Colorado’s interests in protecting patients and staff members from impeded access to the facilities and the content-neutral way in which the law was written satisfied the First Amendment.

Justice Scalia was livid. His dissent, which Justice Thomas joined (but not Justice Kennedy, who wrote his own separate dissent, for reasons that are obvious once you read the two), is vintage Scalia in its mix of anger, indignation and sarcasm. In my view, he quite effectively calls out Justice Stevens’ shaky reasoning regarding the unwilling audience, pointing out that what Justice Brandeis actually meant was the “right to be let alone” by the government, not the right to be free from hearing other private speakers communicating their message in a public setting. Being Scalia, however, he doesn’t stop there. The First Amendment is not the only thing at stake. Justice Scalia wants you to know that the Hill decision is just one in a long line of animus-driven, unconstitutional attacks on the rights of the unborn and those who would save them, so he takes the opportunity to excoriate the Court’s “relentlessly pro-abortion jurisprudence:”

What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice [citation omitted]. Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.

The emphasis is mine.

The public forum involved here–the public spaces outside of health care facilities–has become, by necessity and by virtue of this Court’s decisions, a forum of last resort for those who oppose abortion. The possibility of limiting abortion by legislative means–even abortion of a live-and-kicking child that is almost entirely out of the womb–has been rendered impossible by our decisions from Roe v. Wade… For those who share an abiding moral or religious conviction (or, for that matter, simply a biological appreciation) that abortion is the taking of a human life, there is no option but to persuade women, one by one, not to make that choice. And as a general matter, the most effective place, if not the only place, where that persuasion can occur, is outside the entrances to abortion facilities.

And in the final paragraph:

Does the deck seem stacked? You bet. As I have suggested throughout this opinion, today’s decision is not an isolated distortion of our traditional constitutional principles, but is one of many aggressively proabortion novelties announced by the Court in recent years.

Look for more of these quotable “suggestions” from Justice Scalia tomorrow, the incidence of which is only made more likely by the fact that this time around, with Chief Justice Roberts and Justice Alito on the bench, he will likely have enough votes to jettison Hill once and for all. Justice Kennedy may well end up writing a final opinion in McCullen that is based on his own Hill dissent–a much more temperate disagreement that skipped the “proabortion” talk and stayed focused on the First Amendment–but Scalia will doubtless take this opportunity to run a victory lap.

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What Now for Same-Sex Marriage in Utah?

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The Supreme Court pushed the “pause” button on gay marriage in Utah yesterday, preventing any new marriages between same-sex couples from taking place until the case has been decided on appeal by the Tenth Circuit. Let’s take a second to unpack the justices’ order:

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OK, so there’s not a whole lot to unpack here. The grant indicates that Justice Sonia Sotomayor, the Circuit Justice in charge of handling stay applications arising from the Tenth Circuit, referred Utah’s request to the full court instead of deciding it herself. This was an expected outcome–as mentioned in my previous post explaining the stay application process, full-court consideration is the most efficient way to dispose of the request and prevent any “appeals” or resubmissions that could happen when an individual Circuit Justice rules on a stay. That the Supreme Court granted the stay was also not surprising. As Rick Hasen notes here, it was very likely that the Court (including even the justices who would support expanding same-sex marriage rights ((For an example of a Supreme Court justice advocating for an incremental approach to the recognition of a constitutional right, look no further than Justice Ruth Bader Ginsburg’s comments on Roe v. Wade. She has repeatedly said that abortion rights should have been settled state-by-state rather than in one fell swoop, which in her opinion had the effect of polarizing the national discussion. A similar argument regarding strategy has played out amongst same-sex marriage proponents.)) ) would want to slow things down on such an important, far-reaching constitutional question.

So what does the grant yesterday tell us about how the Court may rule on the merits in Herbert v. Kitchen, when it is inevitably appealed from the Tenth Circuit? The answer is: very little. We do know that the Court will likely choose to hear the case–based on the requirements for successfully obtaining a stay (also detailed in the flowchart from my previous post), the Court would not have granted Utah its stay unless it thought there was a “reasonable probability” that four justices would grant certiorari when the case eventually winds its way up. We also know from the grant requirements that the full court thought there was a “fair prospect” that five justices might eventually overturn federal district Judge Robert Shelby’s ruling on the Utah same-sex marriage ban, probably because of his game-changing conclusion that same-sex marriage is a fundamental constitutional right–an issue that the Supreme Court itself assiduously avoided addressing in last year’s DOMA and Proposition 8 litigation.

Beyond these questions of probability, however, the grant itself contained no reasoning for the Justices’ decision and addressed none of the substantive arguments brought up by Utah and the same-sex couple plaintiffs, so it is hard to divine how they will rule on the merits. The criteria for granting a stay are different from the standards used for ruling on the substantive questions. The fact that it chose to hit the brakes on same-sex marriage in Utah now does not necessarily mean that the Court will strike down Judge Shelby’s ruling.

A more pressing question created by yesterday’s grant is what happens now to the 1,360 same-sex couples who received marriage licenses from the state–a majority of whom have already used the licenses to get legally married in the seventeen days before the Supreme Court halted the process. Interim Utah Attorney General Sean Reyes said in a press conference yesterday afternoon that he “doesn’t know.” These couples are in “legal limbo,” “uncharted territory.”

My personal feeling is that yesterday’s stay should not erase or invalidate the hundreds of same-sex marriages that were legally carried out in Utah in the period between Judge Shelby’s initial December 20 ruling and the Supreme Court order. Up until yesterday, while Utah’s stay request was slowly moving its way up the federal courts, Judge Shelby’s decision striking down Amendment 3 was still controlling in the state, so these marriages did not take place in violation of any court order or state ban. A trickier question is what happens to the couples who obtained marriage licenses legally during those seventeen days but had not actually gotten married by the time that the Supreme Court issued the stay. We should fully expect further “offshoot” litigation on this matter.

Finally, it’s worth noting that Utah is still weighing proposals to bring in outside counsel to help with Kitchen, which will be scheduled for argument before the Tenth Circuit this spring. Outside help would probably be a wise idea, given the state’s well-documented bungling in the last few weeks. That Utah dropped the ball repeatedly on moving its stay application along–first by neglecting to ask Judge Shelby at the litigation stage for a stay of any possible ruling in favor of the same-sex couples, then by running to the Tenth Circuit for an emergency stay before Judge Shelby had even ruled on its request, then by waiting a full week to appeal the Tenth Circuit stay denial to Justice Sotomayor–is the reason why the state is now dealing with such a large number of marriages that may or may not be legal.

[UPDATED] With Utah Stay Application Filed, Ball is Now in the Supremes’ Court [Infographic]

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Justice Sonia Sotomayor of the Supreme Court is set to decide whether same-sex marriages in Utah, which have been conducted since a federal trial judge overturned on December 20 a state ban on such marriages, can continue while the case is being appealed, or whether they must cease for the time being.

After both Judge Robert Shelby and the Tenth Circuit Court of Appeals denied its application for an emergency stay, Utah took its request up to the Circuit Justice assigned to the Tenth Circuit, Justice Sonia Sotomayor, on December 31. Justice Sotomayor asked the plaintiffs to submit its response opposing the stay by noon, January 3. Their brief can be found here (courtesy of the Legal Times).

From here, Justice Sotomayor can choose to decide the stay herself, or she can refer the issue to the full Supreme Court. I’ve created a flowchart (click to enlarge) to help explain how a non-capital stay ((As opposed to capital stays, where a convicted individual has received the death penalty–these play out differently because of the nature of such cases)) moves through the federal courts. The magenta box on the left lists out what a party must show in order to obtain a stay.

(This flowchart was created using information from Supreme Court Rule 22 on “Applications to Individual Justices” and the Supreme Court Public Information Office’s “Reporter’s Guide to Applications.” The latter includes a chart showing which Justices are assigned to which Circuits.) 

In terms of where in the process we are right now, Utah’s stay application is at the teal box labeled “Circuit Justice (Justice Sotomayor).”

There has been a lot of speculation in the last few days over whether Justice Sotomayor will keep the stay application for herself or bring in the rest of her colleagues, with many predicting that she will refer it to the full Court. As the chart shows, that seems to be the quickest, most efficient way to dispose of the application–once the full Court has voted on the stay, its decision is final.

Individual Circuit Justice rulings, meanwhile, are theoretically subject to “appeal.” If the Circuit Justice denies the stay, the party petitioning for a stay can resubmit the request to another individual Justice of its choosing (Supreme Court Rule 22.4, however, points out that this tactic is “not favored,” and the Justice to whom the request is resubmitted will usually then refer it to the full court, out of deference to the Circuit Justice and to defuse attempts at “justice shopping”). If the Circuit Justice individually grants the application, the party opposing the stay can then ask the full court to vacate the stay. Now, in practice, the Circuit Justices are accorded a great deal of deference in their individual decisions–Sotomayor, after all, did just individually grant a stay on a separate case two days ago–but the possibility that their rulings might end up being reviewed by the full Court anyway may incentivize them to “share.”

UPDATE: The Supreme Court granted Utah’s request for a stay this morning, halting same-sex marriages in the state until the Tenth Circuit has decided the case on appeal. The one-paragraph order, which can be found here, shows that Justice Sotomayor did in fact refer the stay request to the full court. The Supreme Court did not touch the merits of the case in its grant of the stay, providing no explanation of its decision or analysis of the two parties’ arguments. As Utah’s Fox 13 News reporter Ben Winslow notes, over 900 same-sex marriages have been conducted in the state since Judge Shelby’s initial ruling on December 20. Winslow reports that the Tenth Circuit expects to hear oral argument in the case this March.

A tale of two platforms

Miscellaneous, , ,

My New York vignette sneaked its way into The New York Times (excerpted below):

Like Bill de Blasio’s New York, West Fourth is a tale of two platforms. And although the teeming masses on each level probably earn similar incomes on average, a yawning gap separates the have-trains from the have-not-trains.

Above lie the A, C and E; below, the B, D, F and M. Separating the two is a cavernous expanse in which the stairways to the levels on either side stretch outward toward the invisible way home.

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The year in 10 posts

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I’m not usually a List Guy, and I’m even less a Listicle Guy (nor do I know the difference). But given the recent dearth of writing on this blog dealing with non-Homeland subjects, the end of the year seemed like an appropriate time to select 10 posts from 2013.

Note that these aren’t necessarily my 10 favorite posts, nor were they all posted this year (one wasn’t), nor were they even the ones that garnered the most views (although this category is the general baseline I used to compile the selection below). It is simply a list that expresses, in some abstract or nonsensical way perhaps, The First Casualty in the year that was. Or more accurately, the year that is, until Wednesday.

So without further commentary:

10) “Did you get into Harvard?!?” by Sam Lim (April 6)

Money quote: “While the general perception is that having a degree from an Ivy League school, Stanford, or MIT automatically trumps a degree from most other institutions, the truth is our focus should be on the substance of the degrees and not the degrees themselves.”

9) “At Fernandez v. California Oral Argument, Supreme Court Debates What It Means To Be Roommates” by Victoria Kwan (November 14)

Money quote: “From today’s argument, it looks as though the Supreme Court will reduce Georgia v. Randolph to ‘nothingness,’ as Justice Ginsburg mused. Sotomayor may be able to convince Ginsburg and Kagan, who both showed some discomfort with the amount of control their conservative colleagues would hand to the police. She might also get Breyer’s vote if she can somehow figure out a test that is consistent with both his Randolph concurrence and his desire to limit it in situations like these. Without the support of Scalia, however, the list of justices supporting Fernandez’s claim is stuck at four, which, in the Supreme Court, is still a losing number.”

8) “Beyond the Dish meter, part II” by Jay Pinho (February 18)

Money quote: “I believe Sullivan mentioned recently that if the pace of subscribers didn’t pick up, he may ‘nudge’ them towards paying their dues. This could happen in one of two ways. Either he could reduce the number of monthly “Read On” clicks it takes to trigger the meter (it’s currently at seven), or he could introduce more “Read On” posts as a percentage of his total posts. As an early subscriber, it doesn’t really matter to me which one he chooses. But so far at least, the content lying beyond the “Read On” button certainly seems to justify the annual fee.”

7) “‘Too Far, Too Fast:’ A Timeline of Ruth Bader Ginsburg’s Disappointment with Roe v. Wade” by Victoria Kwan (May 14)

Money quote: “Though Justice Ginsburg’s remarks may be particularly relevant now–her preferred bottom-up, state-by-state approach to abortion mirrors the strategy that same-sex marriage advocates have been using–this isn’t the first time that the justice has publicly expressed disappointment with Roe’s lack of judicial restraint. Over the years, Ginsburg has been quite vocal about the many roads not taken, even while she approves of the outcome of increased access to abortion.”

6) “‘The Choice’ to stay: Sam Lim and I discuss the season finale of Homeland” by Sam Lim and Jay Pinho (December 18, 2012)

Money quote: “So it looks like that’s our two-man consensus: Saul and Carrie’s relationship takes a turn for the weirder. Or at least, it becomes more complex. I like your prediction of a new main character too: I think that will be necessary, especially after killing off Abu Nazir, Walden, and Estes all in the space of three episodes.”

5) “Whose ‘journalistic malfeasance?’ Fact-checking Joshua Foust’s Guardian critique” by Jay Pinho (June 17)

Money quote: “At the end, Foust laments the barrage of misleading and inaccurate news. He is right: the mainstream American press has had a rocky few months. (In reality, it’s been rocky for far longer than that.) Twitter and other real-time social networks have certainly contributed to the proliferation of these deceptions at ever-faster speeds, although they fact-check just as fast. I actually agree with the general thrust of Joshua Foust’s analysis of The Guardian‘s hasty reporting that appears to have cut corners in dangerous ways. But sometimes even the fact-checker needs a fact-checker.”

4) “A broken Constitution, and a few misplaced facts” by Jay Pinho (December 5)

Money quote: “I bring all this up not to rag on Toobin, who is obviously an astute legal mind. I enjoyed his article and am generally sympathetic to the complaints registered by the progressive movement regarding the Constitution’s many inadequacies. But several passages somehow slipped past The New Yorker‘s legendary fact-checking desk.”

3) “2013 March Madness: College Costs-Style” by Sam Lim (March 20)

Money quote: “In all seriousness, though, skyrocketing college costs are no laughing matter. Given that these numbers show how much students must pay (read: borrow) AFTER they’ve exhausted scholarships and grants, there’s already a great need to boost student financial aid and implement more student-friendly policies. If perhaps more schools followed New Mexico State’s lead (estimated annual net price: $2,344), we might actually be able to curb the growing student debt bubble a bit.”

2) “No Saint in this game: Is Wynn Resorts using Everett United to gain casino support?” by Jay Pinho (May 30)

Money quote: “Everett will get its chance to vote for or against the proposed casino in just a few short weeks. If, as expected, the residents approve the proposal and if Massachusetts subsequently awards the gaming license to Wynn and not either of his competitors, time will tell whether the ambitious project is beneficial to Everett in the long run. But it shouldn’t be too much to ask to ensure that Everett’s residents know just who is purporting to unite them.”

1) “My problem with TEDx” by Jay Pinho (February 17)

Money quote: “The ritualistic — at times almost mystical — nature of the event was deliberately designed so as to overwhelm each listener’s critical faculties with all the pomp and circumstance of a staged performance. It was no accident that, following the final lecture, we were all ushered quickly out to the neighboring lounge, where a bar had been set up with wine and beer, and where we were quickly serenaded by a singing theater troupe while we downed our various alcoholic beverages. The point is not to think: it’s to believe.”

Believe it or not, this list actually excludes the two single posts with the most page views this year: Victoria’s March 5th commentary on Jeffrey Toobin’s profile of Justice Ruth Bader Ginsburg (712 page views), and my May 26th “statistical jaunt” through more than 1,100 views from Dish readers’ windows (926 page views).

So yes, five of the 10 posts in this selection were written, at least in part, by Victoria and Sam. Their posts in aggregate represented a disproportionate number of eyeballs on the site, and — far more importantly — an even more disproportionate contribution to the quality of the blog itself.

Looking forward to 2014! Here’s your last song for the year:

“The Star” bows out on Homeland‘s Season 3 finale

Film/TV, , , , , , ,

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Jay: So, where does Homeland go from here? Brody’s dead, Carrie’s both promoted and pregnant (with both assignments seemingly up in the air, for the moment), and the U.S. and Iran have signed a nuclear deal (in a scene that must have been shot very recently). I confess that it is difficult to imagine a scenario next season that would really keep my interest at this point.

As for the episode itself, I was disappointed, I think. I can’t put my finger on any specific flaw, other than the pervasive notion that this show has really meandered without any real objective for quite some time now. In Season 1, Homeland was about patriotism, family, and loyalty. Much of what happened that season can be analyzed via Brody’s relationships with other people: Carrie, his wife Jessica, his daughter Dana, his mentor Abu Nazir, etc.

But as Season 2 began to run off-track and then Season 3 continued the trend, I’m much less clear on what the show is “about” now. And while I’ve been predicting Brody’s death for quite some time, the fact that it’s now actually happened does raise a lot of questions as to how the series will proceed.

In some ways I think it would be best if they just stopped the show entirely here. What do you think? Continue reading “The Star” bows out on Homeland‘s Season 3 finale →

“Big Man in Tehran:” On Homeland, Brody’s past closes in

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Sam: So, what’s the over-under on Brody making it out of Tehran alive? Or Carrie, for that matter? Does it strike you as not coincidental that the two of them are in Tehran for the final episode? It seems rather likely that one of them (dare we say both?) might end up not making it out of Tehran.

Overall, this episode felt like a giant teaser for the finale, though. The entire episode seemed like a whole lot of tension over whether or not Brody would carry out his mission. While the twists were clever, they seemed reminiscent of what we’ve seen from Homeland before: Carrie goes rogue in a foreign country, the original mission goes out of whack, and then things end up okay somehow.

We’ve harped on this before as well, but Saul really cannot be surprised that Carrie flat out cannot take orders, right? I mean, even Dar Adal can tell him that. Why they continually send someone like her into the field (and into Tehran, of all places) is just absolutely ridiculous. I suppose it helps with the storyline, I guess.

What’d you think of this episode? Continue reading “Big Man in Tehran:” On Homeland, Brody’s past closes in →

After Political and Weather Delays, Patricia Millett Set For Confirmation Vote in Post-Nuclear Senate

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President Obama with D.C. Circuit nominees (L-R) Robert Leon Wilkins, Nina Pillard and Patricia Millett in June 2013. Picture by Olivier Douliery, McClatchy-Tribune News Service.
President Obama with D.C. Circuit nominees (L-R) Robert Leon Wilkins, Nina Pillard and Patricia Millett in June 2013. Picture by Olivier Douliery, McClatchy-Tribune News Service.

Nearly three weeks after Democrats triggered the “nuclear option” and altered filibuster rules to make it easier for sitting presidents to appoint federal judicial nominees, the Senate is set to vote on Patricia Ann Millett’s nomination to the United States Court of Appeals for the District of Columbia Circuit at 10 a.m. on Tuesday morning.

President Obama originally nominated Millett, who has argued 32 cases before the Supreme Court and currently co-heads the Supreme Court and national appellate practices at the Washington, D.C. law firm Akin Gump Strauss Hauer & Feld LLP, to a seat on the D.C. Circuit in June 2013. Senate Republicans deemed Millett too partisan and filibustered her nomination in October, which blocked her from receiving a confirmation vote before the full Senate.

Under the previous rule, Senate Democrats would have needed a sixty-person supermajority to overcome the minority party’s filibuster and force a confirmation vote—a number that they fell short of, with Republicans holding forty-five out of 100 seats. After the Republicans used the same tactic this fall to block two more D.C. Circuit nominees, however—Georgetown law professor Cornelia “Nina” Pillard and United States District Court Judge Robert Leon Wilkins—Democrats changed the rule outright so that only a simple majority would be required to obtain a confirmation vote. With the math on the Democrats’ side now, Millett is expected to be confirmed today. No date has been set yet for voting on Pillard and Wilkins.

The D.C. Circuit is widely referred to as the second most important court in the country after the Supreme Court, as it hears a disproportionate number of high-profile, high-impact regulatory and administrative cases compared to the other twelve federal circuit courts. In a paper published by the Cornell Journal of Law and Public Policy last week, four former D.C. Circuit law clerks examined the jurisdiction of the court and further noted that Congress often “carve[s] out certain areas of federal law as the special preserve of the D.C. Circuit,” which, when combined with the Supreme Court’s tendency to review only a small number of cases each term, effectively gives the D.C. Circuit “the final say—and the only appellate say—over numerous laws and rules affecting the entire nation.” The article’s authors found 150 statutory provisions in the United States Code that referred specifically to the D.C. Circuit, as opposed to eighty-eight mentions for the rest of the circuit courts combined.

In addition, the Circuit has become a stepping stone of sorts for judges aspiring to the highest bench of all: four out of the nine sitting Supreme Court justices have previously served on the D.C. Circuit. ((They are Chief Justice John G. Roberts, Jr. (2003-2005) and Justices Ruth Bader Ginsburg (1980-1993), Antonin Scalia (1982-1986) and Clarence Thomas (1990-1991).))

Of the eleven seats on the D.C. Circuit, four are currently filled by Republican-appointed judges and four by Democratic appointees, while three seats remain vacant. Because of this numerical tie, any changes that President Obama makes to its membership is seen as tipping the court’s balance toward his side of the political spectrum. Senate Republicans have tried to pre-empt this by proposing legislation earlier this year that would have eliminated the three vacancies on the circuit entirely, arguing that the court does not need eleven judges because it faces a lower caseload than it has in past years (and accusing Obama of “packing” the court by filling the empty seats). Given last month’s changes to the filibuster rule, however, this bill is likely to become moot as Democrats now push forward with confirming the President’s nominees.

The vote on Patricia Millett was originally scheduled for Monday evening but was postponed after bad weather in D.C. delayed the travel plans of some Senators.

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A broken Constitution, and a few misplaced facts

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Jeffrey Toobin’s latest piece for The New Yorker, “Our Broken Constitution” (paywalled), is an illuminating stroll through a myriad of justifiable complaints about the American founding document. But I couldn’t help but notice several questionable (and, in some cases, completely inaccurate) statements.

The essay opens thusly: “If there is a single point of consensus in this heated political moment, it’s that everyone loves the Constitution.” In the next paragraph, Toobin continues: “The Constitution, and the structure of government that it established, provides the backdrop, but never the subject, for every controversy.”

Skip ahead two paragraphs, however, and you’ll find the exact opposite: “Outside Washington,” Toobin explains, “discontent with the founding document is bipartisan and widespread…On the left and the right, [critics] are asking whether the pervasive dysfunction in Washington is in spite of the Constitution or because of it.” How can both be true simultaneously?

That’s not the only problem. Toobin’s opening statement, even if evaluated in the absence of his self-rebuttal a few lines down, is demonstrably inaccurate. Of course, there’s a certain futility to disproving any theory that includes the phrase “everyone loves” — which, to his credit, Toobin couldn’t possibly have meant literally. Nevertheless, even if afforded an ostensibly looser interpretation of “everyone,” his argument simply doesn’t work.

In fact, Toobin’s essay is itself just the latest in a series, all of which harp on the same general theme (a mostly justified one, to my eyes) that the Constitution is — to put it simply — overrated. A July 2012 Slate piece titled “Fixing the U.S. Constitution” invited readers and experts to amend the venerable document, introducing the effort thusly: “Politicians talk about the Constitution as if it were as sacrosanct as the Ten Commandments. But the document itself invites change and revision.”

In December of that same year, The New York Times ran an op-ed piece by Louis Michael Seidman, a constitutional law professor at Georgetown, headlined “Let’s Give Up on the Constitution.” In it, Seidman laments “our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.” He also points out the long history of constitutional dissent: “Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience…No sooner was the Constitution in place than our leaders began ignoring it.”

Less than three months ago, in September, Kevin R.C. Gutzman asked in The American Conservative: “Do We Need a New Constitutional Convention?” Perhaps more to the point, a National Journal article the following month by Alex Seitz-Wald was self-explanatorily titled, “A How-To Guide to Blowing Up the Constitution.” And these are just a few representative samples in a long canon of disenchantment with the output of “We the People” (or, rather, of their aristocratic appointees to the constitutional convention).

A second problem crops up soon enough. A little further along, but still on the article’s first page (p. 64 in the print edition), Toobin writes: “Implicitly but unmistakably, the 1787 Constitution allowed for the continuation of slavery.”

There is nothing implicit about the Constitution’s allowance for slavery. In the very first Article, Section 2, Clause 3 states, in part:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Later on, in Article I, Section 9, Clause 1, the Constitution explicitly allows for the slave trade’s continuation until at least 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Article IV, Section 2, Clause 3 states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

And finally, Article V reaffirms the impossibility of eliminating the slave trade until at least 1808:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Midway through Toobin’s piece, a third flaw emerges. Speaking of President Obama, Toobin writes:

Though he will spend eight years in office, his tenure as the actual leader of the national government lasted about a year and a half. On July 7, 2009, Al Franken was seated, after a recount, as the sixtieth Democratic senator. (Sixty votes are needed to overcome a filibuster.)…In the midterm elections of 2010, Obama’s party lost control of the House and fell below the filibuster threshold in the Senate.

But as has been well-documented (here, and here, and here, to name a few places) — and especially visible, one would imagine, to a political junkie such as Toobin — Obama’s actual filibuster-proof Senate majority lasted only four months in reality. Rachel Maddow’s blog explains:

In January 2009, there were 56 Senate Democrats and two independents who caucused with Democrats. This combined total of 58 included Sen. Ted Kennedy (D-Mass.), whose health was failing and was unable to serve. As a practical matter, in the early months of Obama’s presidency, the Senate Democratic caucus had 57 members on the floor for day-to-day legislating.

In April 2009, Pennsylvania’s Arlen Specter switched parties. This meant there were 57 Democrats, and two independents who caucused with Democrats, for a caucus of 59. But with Kennedy ailing, there were still “only” 58 Democratic caucus members in the chamber.

In May 2009, Sen. Robert Byrd (D-W.Va.) was hospitalized, bringing the number of Senate Dems in the chamber down to 57.

In July 2009, Sen. Al Franken (D-Minn.) was finally seated after a lengthy recount/legal fight. At that point, the Democratic caucus reached 60, but two of its members, Kennedy and Byrd, were unavailable for votes.

In August 2009, Kennedy died, and Democratic caucus again stood at 59.

In September 2009, Sen. Paul Kirk (D-Mass.) filled Kennedy’s vacancy, bringing the caucus back to 60, though Byrd’s health continued to deteriorate.

In January 2010, Sen. Scott Brown (R-Mass.) replaced Kirk, bringing the Democratic caucus back to 59 again.

Thus Obama’s supermajority, for all practical purposes, lasted only from September 24, 2009 until February 4, 2010, when Scott Brown took Kennedy’s old seat in the Senate.

Finally, towards the end of his article Toobin notes the undemocratic nature of the House of Representatives: “In 2012, House Democratic candidates across the country won about half a million more votes than their Republican opponents, but the G.O.P. emerged with thirty-three more seats than the Democrats.”

Toobin is correct on the seat differential, but significantly off on the vote gap. According to analysis performed by the Cook Political Report’s U.S. House editor, Dave Wasserman (and briefly explained by Talking Points Memo editor Josh Marshall), House Democrats actually won 1,365,157 more votes than Republicans in 2012 — a differential nearly three times that cited by Toobin.

Out of an abundance of caution — since Toobin had specifically compared the Democrats’ vote totals to those of their Republican opponents (emphasis mine) — I copied Wasserman’s Google spreadsheet and eliminated all House races in which either the Democrat or Republican candidate received 0 votes. This, I believe, should serve as a reasonably good proxy for uncontested races — in other words, those with no opponents. When only contested races are counted, the Democrats’ vote advantage over the GOP extends to 2,444,369. This is nearly five times as high as Toobin’s count.

I bring all this up not to rag on Toobin, who is obviously an astute legal mind. I enjoyed his article and am generally sympathetic to the complaints registered by the progressive movement regarding the Constitution’s many inadequacies. But several passages somehow slipped past The New Yorker‘s legendary fact-checking desk.

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