Tag Archives: Antonin Scalia

A brief thought on King v. Burwell

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Last Wednesday, the Supreme Court heard oral arguments in King v. Burwell, the GOP’s latest legal strike against the Affordable Care Act (ACA), known colloquially as “Obamacare.” The justices appeared to split largely along familiar ideological lines (with Chief Justice John Roberts remaining mostly inscrutable), but one exchange — no pun intended — stood out to me.

I’ve excerpted the relevant portions below:

 

Something about Justice Scalia’s comments here immediately struck me as bizarre, but I couldn’t figure out exactly why the first time I read it.

I think now I do. The thing is, we’ve come to expect a scarily high level of partisanship on the Court, echoing our broader political divide in the legislature and, indeed, in the nation at large. So it’s no surprise to see Scalia, Alito, et al. bringing out the knives against the solicitor general, Donald Verrilli, Jr. (just as it’s no surprise to see Kagan, Sotomayor, et al. do much the same to Michael Carvin on the challengers’ side).

But what’s interesting here is the specific reasoning Scalia employs in his favor. He had at least two options for how to defend the challengers’ reading of the law. The first, and more obvious, tactic would have been to simply characterize the phrase “Exchanges established by the State” as unambiguous under a strict textualist reading of the ACA, and leave it at that. In essence, he could have just argued that the possibly disastrous effects of eliminating healthcare subsidies in numerous states is simply not a judicial matter and that the law must be interpreted as written, regardless of the outcome. Moreover, this would have been fully consistent with Scalia’s stated originalist approach to jurisprudence.

But he didn’t stop there. Instead, he stated or implied multiple times (in the excerpts displayed above) that, if the consequences were as terrible as Verrilli believed, Congress would step in to fix the problem — in this case, the loss of health insurance to citizens who would have otherwise been covered by Obamacare subsidies.

This is a strikingly odd perspective. As anyone with even a passing familiarity with American politics knows, the chance of a Republican-led Congress — in both houses — enacting emergency legislation to save ACA subsidies is practically zero. Scalia, as someone intimately aware of the American political process, knows this better than most. And so did the audience attending the oral argument, which burst into laughter when Verrilli countered: “Well, this Congress, Your Honor…”

In other words, in a brazen attempt to persuade his fellow justices of the merits of the challengers’ arguments, Scalia made a deliberately disingenuous prediction about the likely outcome of ruling in their favor. Indeed, the idea that Congress would fix Obamacare is so obviously comical that it underscores just how desperate Scalia is to dismantle it: he would gladly suffer the public indignity of making an obviously absurd political prognosis for the mere opportunity to shape his undecided colleagues’ eventual ruling.

This may or may not tell us something about the Court’s likely decision — perhaps it means Scalia is privy to wavering on the part of Kennedy or Roberts, and perhaps not — but it tells us much about the lengths to which Justice Scalia will go to achieve an ideological objective.

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

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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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At Fernandez v. California Oral Argument, Supreme Court Debates What It Means To Be Roommates

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At yesterday’s oral argument over a warrantless search, Breyer tries to draw lines while Scalia seems to have made up his mind. Picture via The Atlantic.
At yesterday’s oral argument, Breyer tries to draw lines while Scalia seems to have made up his mind. Picture via The Atlantic.

Last term, the Supreme Court’s Fourth Amendment cases made for some curious cross-aisle alliances, pitting a privacy-friendly Justice Scalia and his liberal colleagues Ginsburg, Sotomayor and Kagan against a government-supporting Justice Breyer and the conservative bloc of Chief Justice Roberts and Justices Alito and Thomas (and sometimes Kennedy). Wednesday’s oral argument in Fernandez v. California, however, saw Breyer and Scalia falling back along more conventionally ideological lines, with the former attempting to balance a rather unsympathetic defendant’s rights against a domestic violence victim’s needs, and the latter coming out in favor of a more expansive reading of law enforcement’s investigatory powers.

Fernandez v. California stems from a 2009 encounter between Los Angeles police and a man suspected of committing robbery and gang-related assault, who was spotted near the crime scene and subsequently seen running into an apartment. After Fernandez’s live-in girlfriend, Roxanne Rojas, opened the door for officers, fresh bruises and blood visible on her body, Fernandez told them that they could not legally come inside. He was removed from the premises anyway based on suspicion of domestic violence, arrested and taken to the police station. Two officers then returned to the apartment without a warrant and received consent from Rojas to search the premises, where they found evidence that would later be introduced at Fernandez’s robbery and assault trial, resulting in his conviction. The question before the Supreme Court now is whether the police violated Fernandez’s Fourth Amendment rights by warrantlessly searching his home with only the permission of the co-tenant girlfriend, even though Fernandez had earlier told the police in no uncertain terms that they could not enter. (If so, the state would not have been able to use the incriminating evidence from the apartment at his trial.)

In 2006’s Georgia v. Randolph, the Supreme Court established that a co-occupant’s objection to the police search of a home overrides another co-occupant’s consent if both co-occupants are present. California argues that its search did not violate Randolph because Fernandez was absent at the time the police officers returned and Rojas, as the only present co-tenant then, had the right to open her home to whomever she wished to grant entry. The removal of Fernandez from the apartment–even if it was forcible–effectively nullified his refusal to consent to a search.

Fernandez, on the other hand, interprets Randolph to mean that once a physically present co-tenant has objected to the search, “an objection… remains in effect until officers learn that the objector no longer wishes to keep the police out of his home”–or until the police get a warrant. In other words, for the seven-year-old precedent to have any force, the police must not be allowed to gain consent for a warrantless search simply by carting an objecting tenant away from the premises.

This reading of Randolph appeared to be in trouble from the moment that Justice Breyer– whose Fourth Amendment jurisprudence typically reflects an optimistic view of the government using its investigatory powers in good faith–opened questioning with a hypothetical about a domestic abuse victim who is unable to ask the police to come investigate a shared home for evidence of the crime even after the assailant has been arrested, because there is no clear probable cause for a warrant and no consent from the violent co-tenant. Breyer is clearly troubled by Fernandez’s argument, which he believes would deny Rojas her rightful authority as co-occupant to admit a visitor into their home during the 500-plus days he spent in custody.

On the other hand, Breyer, who joined the majority (and authored a concurrence) in Randolph, also doesn’t want to undermine his previous position by giving free rein to law enforcement to change presences into absences. So he tries to reconcile his vote in Randolph with his unease in Fernandez with a compromise: the known objection of a tenant who is then removed from the house by law enforcement could remain valid for a limited “reasonable time” afterward (the exact definition of “reasonable time” to be decided by the lower courts), during which the police cannot search the house without a warrant.

Unfortunately for Breyer, none of his colleagues seem terribly receptive to this idea. Of the nine justices, Alito articulates the case against Fernandez most vociferously, suggesting at several points that Georgia v. Randolph was wrongly decided and ought to be overturned entirely. “I don’t understand why the fact that one is a joint tenant is not the end of the analysis. Why shouldn’t it be?” Justice Alito asked Fernandez’s lawyer, indicating his belief that present consent should always override a present objection, much less an absent one. For Alito, Randolph has got it reversed–since he can’t imagine having the authority to ever tell his co-tenant what visitors she could or couldn’t permit into the home, Rojas’ consent alone should have disposed of the entire case.

Justice Scalia, who was in last Term’s cases a champion of privacy interests and mistrustful of government in search and seizure cases, dissented in Georgia v. Randolph, in part over concerns that abusers would use the rule privileging present objections to prevent police from investigating domestic violence, over the wishes of their battered partners. Today, he returned to that stance, telling Fernandez he was asking for an overbroad extension of a narrow ruling. Likewise, Chief Justice Roberts (who dissented in Randolph) and Justice Kennedy (who was in the majority) treated Fernandez’s Fourth Amendment rights as virtually nonexistent in this situation, repeatedly stating that assault victims should not be deprived of the law enforcement assistance they might want to ask for in the abuser’s absence. The fact that Fernandez is basically the world’s worst roommate has made this an easier case for them to decide.

USA - Politics - Supreme Court Nominee Judge Sotomayor on Capitol Hill
Sotomayor thinks the police need to try harder before resorting to warrantless searches. Picture via The New Yorker.

With the conservative justices focusing mainly on the social customs of roommates and the rights of Fernandez’s co-tenant, it fell on Justice Sotomayor, the most vocal defender of Fernandez’s position yesterday, to point out that California’s proposed reading might grant law enforcement too much control in situations where they already have a great amount of power. Sotomayor questioned the wisdom of giving the police carte blanche to manipulate Randolph’s absence/presence test –“[a]ll they have to do is arrest and remove people”– and circumvent proper search and seizure procedures. When California’s lawyer told Justice Breyer that his “reasonable time” compromise would not be a sufficiently “clear answer” for law enforcement, Sotomayor interjected: “How about a clear answer? Get a warrant.” She reiterated this point again later: “I don’t know why that’s so difficult for police officers to understand. Your first obligation under the Fourth Amendment is to get a warrant.”

While that may be true in principle, there’s an argument to be made that the Roberts Court has been slowly weakening the warrant requirement over the years, and the unsympathetic facts of Fernandez’s case surely did not help his cause. 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.

Some Thoughts on DOMA on the Eve of Supreme Court’s Ruling

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Edie Thea
Thea Spyer and Edie Windsor. Windsor is suing the federal government for the return of over $363,000 that it charged her in federal taxes after she inherited her late wife Spyer’s estate. Had Windsor been married to a man instead of a woman, she would have been exempt from the tax. Picture via CNN.

We are now hours away from the last rulings of the Supreme Court’s term, and we know for certain that we’ll be getting a decision in United States v. Windsor, the challenge to the federal Defense of Marriage Act (as well as Hollingsworth v. Perry, the California Proposition 8 case). On the eve of what will surely be a historic day for gays and lesbians across the country, it’s worth going back and reading the March oral argument for the case. A few points I’d like to make ((With the major caveat, of course, that I realize oral arguments are not always an accurate indicator of the eventual outcome of a case.)):

  • Based on the way the other Justices were falling in line behind his questions at the oral argument and some deduction skills on the part of SCOTUSblog, there’s a decent chance that Justice Anthony Kennedy has the majority opinion in Windsor.
  • Assuming that Windsor isn’t decided on a standing issue (and I freely admit that it could be), I expect a Kennedy opinion to discuss states’ rights. Traditionally, family law has been left exclusively to the states, and Kennedy seemed quite concerned at the oral argument about the federalism issues implicated by DOMA, which orders the federal government not to recognize same-sex marriages even if they are legally recognized by the state. At one point, he reminded Paul Clement, the attorney defending the law: “[DOMA] applies to over 1,100 federal laws… when it has 1,100 laws, which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
  • Alternatively, if it does reach the merits of Windsor, the Supreme Court could strike down DOMA as a violation of the Fourteenth Amendment’s Equal Protection Clause (i.e. the law is unconstitutional because it singles out same-sex people for unfavorable treatment versus their opposite-sex counterparts). Such a ruling would, going forward, provide heightened legal protections for gays and lesbians in the face of discriminatory laws. However, this is also a much broader and groundbreaking route, and I’m not convinced that Kennedy will take it if he can decide the case based on a narrower states’ rights argument instead.

Associate Justice Elena Kagan Investiture Ceremony

While the lion’s share of attention re: DOMA has been focused on Kennedy (including, of course, this post, which has already given him three bullet points), I also want to highlight a couple of points that Justices Ruth Bader Ginsburg and Elena Kagan made at the Windsor oral argument:

        • Ginsburg drew big laughs at the argument when she compared the current state of same-sex marriage to “skim milk”––i.e. not the real thing. Snappy sound bite aside, however, it’s interesting to note that Ginsburg–who by all accounts had a happy, fulfilling marriage to the late tax attorney Martin Ginsburg–was the one justice who focused the most on the everyday effects DOMA has on very real people and very real relationships. Again and again, Ginsburg steered the discussion back to the everyday hardships caused by this law–the loss of benefits, a higher tax burden, the inability to take leave to tend to a sick spouse–implicitly asking her colleagues to think about what a marriage really means. We need to strike down DOMA, she was saying, because it is unconstitutional to subject these Americans to a lower quality of life than what their heterosexual brothers and sisters expect and receive.
        • Whereas Justice Ginsburg made it a point to talk about (to put it in a cheesy way) love being love, Justice Kagan had an equally compelling observation about hate. Kagan’s strategy at oral argument was to focus on the people behind the law rather than the people the law affected. DOMA has no place in our society, Kagan suggested, because there are indications that it was motivated by “fear,” “animus” and “moral disapproval” against gays and lesbians–all constitutionally impermissible reasons for imposing differential treatment on a whole class of people. Memorably, she shut down Paul Clement when he tried to dispute this by reading aloud the House Report for DOMA: “‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'”
        • Together, Kagan and Ginsburg’s arguments about the suspect motivations and unjust results of DOMA made for a pretty good one-two punch. Assuming, again, that Kennedy actually has the majority opinion and dispatches DOMA based on a theory of states’ rights, I’m really hoping for a concurrence or two from either (or both) of these Justices, laying the intellectual groundwork for an equal protection decision somewhere down the line.
        • If that is the outcome, we can expect at least one fiery dissent as well. My money’s on Justice Scalia, who just last Friday gave a speech to the North Carolina Bar Association insisting that courts had no business deciding moral issues, which should be left to the political process. (He forgets that mixed-race marriage was also considered immoral back when Loving v. Virginia [the 1967 Supreme Court decision overturning anti-miscegenation laws] was decided, and that it was the Court that pulled public opinion along on this, not the other way around.)

Finally, it bears remembering that exactly ten years ago, the Supreme Court issued its landmark decision in Lawrence v. Texas, striking down the criminal convictions of two men who had been arrested and tried under a Texas law that prohibited certain forms of sexual conduct between members of the same sex. In overruling an earlier Supreme Court decision that had upheld the application of state sodomy bans to gay and lesbian sexual activity, majority opinion author Justice Anthony Kennedy invoked the Founding Fathers:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In a few short hours, we’ll find out just how committed Kennedy and the rest of the Supreme Court remain to this principle.

 

Waiting for #SCOTUS: Tweets from the Peanut Gallery

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As the Supreme Court inches toward the end of its term in late June with fourteen cases still undecided, court-watchers are now surging toward Twitter and SCOTUSblog every Monday and Thursday morning at 10 a.m. EST in anticipation of history-making rulings on same-sex marriage, voting rights, and affirmative action in higher education. No one outside of the Court knows what and how many opinions are issued on any given day–and we did not in fact get any of the aforementioned “marquee” decisions today, which only adds to the tension for Thursday–but waiting is half the fun, right?

Here’s a roundup of today’s action in tweet form, showing our collective breath being held, held, held and then released over the span of 30 long minutes (thus freeing everyone up with time to spare for the Edward Snowden Q&A). In all, #SCOTUS handed down five opinions today, including a couple of important criminal procedure decisions and an Arizona voter registration ruling that saw Chief Justice Roberts and Justice Scalia siding with the liberal wing of the Court against the state’s proof-of-citizenship requirement. It also agreed to hear oral argument in four more cases for its next term. We begin with the one and only SCOTUSblog, the definitive source for everything Court-related:

https://twitter.com/CaptainSemantic/status/346621336346583041

https://twitter.com/ben_mccall/status/346628902707417089

https://twitter.com/CBSAndrew/status/346629167443480577

https://twitter.com/feddog/status/346687368755027969

https://twitter.com/CU_Health/status/346659487769296896

https://twitter.com/bradagreenberg/status/346674223080669187

https://twitter.com/ryanjreilly/status/346630143483187200

https://twitter.com/briansrants/status/346667416614469632

https://twitter.com/khjEsq/status/346705366123438081

https://twitter.com/ishapiro/status/346635203642527745

https://twitter.com/Nagler/status/346632712490205186

https://twitter.com/julierheinstrom/status/346632980514631680

https://twitter.com/sahilkapur/status/346633327219990528

https://twitter.com/Nagler/status/346640304616640512

https://twitter.com/ishapiro/status/346632388203401216

https://twitter.com/Profepps/status/346674687289487360

https://twitter.com/pourmecoffee/status/346634276667793408

“Uncharted Waters:” Confused By Array of Options, Justices Mull Deciding Proposition 8 Case on Procedural Grounds

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Prop 8 Flag
Picture via Variety.

When all was said and done, there weren’t any major revelations in Tuesday’s oral argument for Hollingsworth v. Perry, but it did set the stage for an interesting two hours of arguments on the Defense of Marriage Act that the Supreme Court will hear today.

Chief Justice John Roberts looked for ways to dispose of the Proposition 8 challenge based on the procedural question of standing–as he has done in so many other cases during his tenure–and at least four of his fellow Justices seemed receptive to that option, dissatisfied with the alternatives that the attorneys before them were offering.

The Prop 8 challengers and the United States government framed this fight as the latest in a long line of struggles for equality, appealing to the liberal wing of the Court as we thought they might. They drew parallels to Brown v. Board of Education and Loving v. Virginia, the 1967 case that outlawed state bans on interracial marriages. Justice Ruth Bader Ginsburg–a civil rights pioneer in her own right–reminded Charles Cooper, the lawyer defending Proposition 8, that it was unsound to rely on the Constitutional reasoning of a thirty-year-old Supreme Court decision unfavorable to gay marriage (Baker v. Nelson), given that gender discrimination was barely even recognized back then. Justice Sonia Sotomayor questioned Cooper about whether the government had any rational basis to deny gays and lesbians benefits other than marriage, and Justice Elena Kagan repeatedly pressed Cooper to specify the harm that same-sex marriage causes.

And, as expected, Justices Samuel Alito and Antonin Scalia did not take kindly to the arguments of the Prop 8 challengers. Scalia managed not to emit any overly damaging sound bites this time–the worst thing he said concerned potential “deleterious effects” of same-sex parenting on children–but got into a testy exchange with anti-Prop 8 attorney Ted Olson. Seeking to make a point about America’s long and treasured history of discriminating against gays, he interrogated Olson on when exactly gay marriage bans became unconstitutional, berating him when Olson attempted to answer with a rhetorical question about interracial marriage prohibitions, and responding triumphantly when Olson admitted that he could not provide a specific day: “Well, how am I supposed to decide the case, then–if you can’t give me a date when the Constitution changes?”

Debates that the public has been having for years spilled over into the courtroom as the Justices extended each side’s arguments to their logical conclusions. They grilled Cooper on why, if procreation is the main point of marriage, the state hasn’t banned marriages between infertile, elderly or incarcerated couples. They asked Olson whether a state could prohibit polygamy or incestuous marriages if marriage is in fact a fundamental right under the Constitution. Neither of the answers that the attorneys provided–a convoluted riff about preventing the evils of infidelity from Cooper, and a muddy distinction drawn by Olson between status and conduct–seemed to satisfy a clear majority of the Justices.

Donald Verrilli
Solicitor General Donald Verrilli in 2008. Picture by the Associated Press, via Cleveland.com.

Though none of the questions came out of left field, there weren’t any obvious winners or losers, as each of the lawyers’ arguments had holes that made several Justices uncomfortable. Solicitor General Donald Verrilli, Jr., arguing the federal government’s position in support of the Prop 8 challengers, probably fared the worst out of the three attorneys. He took a verbal beating from both liberal and conservative justices over the Obama administration’s dubious stance that states offering civil unions must be made to offer same-sex marriage as well, while states that have never allowed the civil union option should not be required to legalize same-sex marriage. Wouldn’t such an “all or nothing” approach incentivize states to grant their gay citizens no rights instead of some rights, Breyer asked? Verrilli didn’t have a good answer. Then again, as last year’s oral arguments for the Affordable Care Act showed, he doesn’t have to be on his A game for the Justices to find in his favor. Even if the Justices are loath to accept the federal government’s preferred “eight state” course of action, the Obama administration would still celebrate any California-specific result that leaves intact federal district judge Vaughn Walker’s ruling against Prop 8 (or the Ninth Circuit affirmation of that decision).

In the end, it all comes down to Anthony Kennedy, as it has many times before and will again in the future. Justice Kennedy did quite not tip his hand at yesterday’s argument, asking probing questions of both sides. He showed concern over what would happen to the 40,000 children in California with same-sex parents if their fathers and mothers were denied the right to marry, yet balked at the thought of finding a fundamental right to same-sex marriage, warning that the Court was wandering into “uncharted waters.” Kennedy pushed Cooper to concede that he couldn’t think of any specific ways in which same-sex marriage injures society, but also suggested that the case might have been improvidently granted in the first place and should be thrown out based on standing rules. Basically, he appeared to be searching for a rationale to justify a limited rather than broad ruling. Hence, it’s unlikely that the Court will uphold Proposition 8 or make same-sex marriage constitutional across all 50 states–but beyond that, it is unclear what the exact decision is going to be.

Prior to Tuesday’s oral argument, David Boies, Ted Olson’s partner in Hollingsworth v. Perry, had confidently predicted that the Proposition 8 challengers would win the case by at least a 6-3 margin. Emerging from the courthouse into the sunshine yesterday afternoon, however, Olson didn’t sound so sure. “Based on the questions the Justices asked, I have no idea” what the Supreme Court will rule, he said. Most court-watchers don’t, either, but it will be very interesting to see how the Prop 8 arguments over standing, states’ rights and respect for the legislative process play out when the Justices tackle similar questions in the United States v. Windsor DOMA challenge today.

Supreme Court Reactions: Tweets from the Prop 8 Oral Argument

Humor, Law, Politics, , , , , , , , , , ,

Oral argument for the California Proposition 8 case has ended in Washington, D.C., and the Supreme Court audio and transcript are now up. It’s pretty inconclusive from today’s session what kind of ruling the Justices are going to come up with, but that didn’t stop the Twittersphere from exploding into varying degrees of rage, joy and punditry. Here is a brief recap in tweet form, culled from legal commentators, journalists and the rest of the peanut gallery:

The Supreme Court Hears Same-Sex Marriage Cases: A Brief Reading List

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Edie Windsor

Edie Windsor. Picture courtesy of the New York Times. 

All eyes are on the Supreme Court this morning as it prepares to finally hear two cases on same-sex marriage, the civil rights issue of our time. Starting shortly after 10 a.m. today, a 60-minute oral argument will be held for Hollingsworth v. Perry, which questions the constitutionality of California’s Proposition 8 restricting the definition of marriage to one woman and one man. Tomorrow morning, the Justices will hold a 110-minute argument for United States v. Windsor, in which the Supreme Court could strike down the 17-year-old Defense Of Marriage Act (DOMA) that denies federal benefits to same-sex couples even if their marriages are recognized by the state. (The Court is expected to release the audio recording and transcript for each argument shortly after it ends.)

Given the historical significance of these two cases, it’s not surprising that the Internet has lit up with a maelstrom of commentary on just about everyone and anyone who is even remotely connected to either suit. From current Chief Justice John Roberts to former Justice Harry Blackmun, the marquee duo of lawyers challenging Proposition 8 to the people who have been paid to wait in line since Thursday night for the chance to score seats at the oral arguments, everything SCOTUS-related has come under increasing scrutiny as March 26, 10 a.m. draws near. Lest you are feeling overwhelmed by this deluge of information or just looking to do a little bit of last-minute reading as we wait for the Court to wrap up the day’s oral argument, I’ve compiled some of what I think are the most helpful and informative articles for understanding who’s who and what’s going on:

The Overview: Hundreds of articles have picked apart the individual issues and key players before the Court. For one centralized, concise summary of all the legal issues at stake in Hollingsworth and Windsor, the inimitable SCOTUSblog has two primers from Amy Howe. For a quick-hits list of things to watch for at the arguments, go to CNN’s Matt Smith or Slate’s Emily Bazelon, both of whom have highlighted the most important things to know.

The Plaintiffs of Proposition 8: Unsurprisingly, the media has made much hay of the human interest stories behind these cases. The two couples handpicked from California to challenge Prop 8–Kris Perry and Sandy Stier, Paul Katami and Jeff Zarrillo–are profiled in USA Today as “workaday couples living the American Dream, with one exception–they can’t marry their partners.” Perry and Stier also recently gave an interview to the Associated Press (found via the Huffington Post) in which they recall how they’ve lived the last four years in a “pins-and-needles way” while litigating their case up to the nation’s highest court.

The Lawyers Challenging Proposition 8: One of the most dramatic storylines in a case chock-full of them has to be the partnership of superstar lawyers David Boies and Ted Olson, who were famously opponents in Bush v. Gore. The conservative Olson, a former Solicitor General for the U.S. under President George W. Bush, was initially met with some skepticism when he announced that he would be joining Boies in the fight against Prop 8; the Los Angeles Times profiles him here. David Boies, for his part, gave an interview to USA Today two weeks ago stating his belief that Hollingsworth v. Perry will be decided in their favor with more than five votes.

The Plaintiffs of DOMA: “I came to New York to let myself be gay.” Edie Windsor, an 83-year-old widow and former IBM engineer who was engaged to Thea Spyer for 40 years and married for two before Spyer’s death, is the subject of an illuminating New York Times piece about her reasons for challenging the federal government. New York Magazine recently compiled a slideshow of pictures from Windsor and Spyer’s life together.

The Lawyer Challenging DOMA: Though Windsor–with her winsome personality, elegant looks and her compelling love story–now looks like what civil rights lawyers would call the perfect plaintiff for same-sex marriage, her case was rejected by a major gay rights organization before being picked up by Roberta Kaplan, an attorney with Paul, Weiss, Rifkind, Wharton & Garrison. Kaplan, who has said that it took her all of five seconds to decide that she wanted to litigate Windsor’s case, explains her reasoning to Advocate.

Justice Anthony Kennedy: The current swing vote on an increasingly polarized Court, Justice Kennedy’s jurisprudence isn’t always easy to pin down, but he has been sympathetic to gay rights in the past. Famously, he cast the deciding vote (and wrote the opinions) in both Romer v. Evans, which threw out a Colorado law barring anti-gay discrimination laws, and Lawrence v. Texas, in which the Court overturned a Texas sodomy law that was used to prosecute a gay couple for consensual sexual activity. Back in December, when the cases were first granted, Jeffrey Rosen of The New Republic considered whether Kennedy would go for a broad constitutional ruling or a narrow one in light of his previous rulings. Garrett Epps of The Atlantic writes here that we can expect Kennedy to stick to his record of defending both states’ rights and gay rights.

Justice Antonin Scalia: Just as Kennedy is known for leaning libertarian on gay rights issues, Scalia is quite well-known for his moral opposition to same-sex marriage. The big question going into today and tomorrow’s arguments is what he will say this time about gay marriage, and how offensive it will be. Mother Jones and ABC News have both compiled some of Justice Scalia’s thoughts on same-sex marriage over the years, including pieces of his dissents in Romer and Lawrence, and his now-infamous comments comparing disapproval of homosexuality to disapproval of murder, made during a speech at Princeton in 2012.

The Families of the Supreme Court: Robert Barnes of the Washington Post discusses the love lives and marriages of the Justices, noting that many of them have not chosen the “traditional” marriage or childbearing arrangements that Prop 8 and DOMA supporters trumpet. The Los Angeles Times also brings up the fact that Chief Justice John Roberts has a gay cousin, Jean Podrasky, who will be in attendance at the oral arguments this week in the ‘families and friends of SCOTUS’ section. Podrasky told the LA Times: “I believe he sees where the tide is going… I absolutely trust that he will go in a good direction.”

The Shadow of Roe v. Wade: When the DOMA and Prop 8 suits were first filed, many wondered whether pushing same-sex marriage through the courts rather than the state-by-state legislative process was a mistake, pointing to the cautionary tale of Roe v. Wade, which polarized the debate on abortion. The New York Times writes on the shadow of Roe here.

The Forerunners: Linda Greenhouse of the NYT delves into the notes of the late Justice Harry Blackmun (the author of Roe v. Wade) to ascertain his thoughts on same-sex marriage, an issue that the Supreme Court wouldn’t even touch while Blackmun was on the bench in the 1970’s. Greenhouse also highlights the story of Jack Baker and James McConnell, a Minnesota couple who took their state to court in 1970 for their right to marry each other, and reflects on how much public opinion has changed since then.

The Public: Public support for same-sex marriage has snowballed in the last year, and it’s impossible to think that the Justices haven’t noticed. The Pew Research Center found in a March 2013 poll that support had swelled to a high of 48% (versus 43% of respondents who were opposed to same-sex marriage). NPR has created a timeline tracking same-sex marriage in the courts and in pop culture here.  Meanwhile, sensing this change in the air, members of Congress have been tripping over each other to announce their support for same-sex marriage before the Supreme Court speaks, as TIME reports. Mother Jones has compiled a timeline of politicians’ about-faces on this issue.

The People Standing in Line: SCOTUSblog reported last week that people were lining up outside of the courthouse for oral argument seats as early as Thursday night, and the media promptly descended. One man tells the National Journal that he has conducted over 200 interviews while waiting in line. Meanwhile, Adam Liptak and SCOTUSblog trade barbs over the fact that at least some of those in line were paid to stand (or, sit) there by wealthier lawyers who want a seat at the historic hearings but not the five-day wait.

The Possible Outcomes:  Finally, the New York Times has a very helpful infographic here about the possible ways in which the Supreme Court could decide both cases, and what states each outcome would affect.

The next four years

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With the election safely behind us — and, fortunately, without any controversy or recount in the offing — we can now pivot towards prognostications for the future. And no, not 2016. (Please, not for another two and a half years at the least.)

To that end, The First Casualty contributors Sam Lim, Mark McAdam, and Victoria Kwan have each weighed in with their thoughts on what to watch for — especially given their areas of interest — in the coming months and years. Feel free to join in the conversation in the comments!

Sam Lim: Higher Education

In his first term, President Obama worked to make higher education more affordable, shifting over $60 billion from private student loan providers to boosting the federal Pell grant program. In his second term, I expect that President Obama will continue pushing for maintaining — and hopefully increasing — Pell grant funding for students with financial need.

I expect further simplification of the process for applying for federal student aid. Changes to the Free Application for Federal Student Aid (FAFSA) over the past few years have made it immensely easier for students, but then-candidate Obama proposed even simpler solutions in 2008 (such as streamlining the FAFSA application process with the filing of tax returns).

Combined with the continued development of financial tools such as college price comparison calculators for students and families offered by the Consumer Financial Protection Bureau, I expect to see an effort to make processes like applying for aid or choosing the best type of loans even more transparent and accessible.

Of greatest concern are the skyrocketing costs of college tuition and rising student debt. As he mentioned in his 2012 State of the Union address, President Obama will work to ensure that colleges and universities are not pricing higher education out of range for most middle- and low-income students.

I would expect to see either financial incentives or sanctions for public colleges and universities to bring tuition down and keep it in check. If not proposed, I would at least expect these options to be strongly considered. I would also expect to see further initiatives to help students and graduates manage their debt, potentially through expanded loan forgiveness programs tied to public service and other high-need areas.

The Obama Administration seems to favor addressing educational issues most by incentivizing local solutions (more so in K-12, but also in higher ed), so I would fully expect to see more incentive-based programs and initiatives to encourage local level education reform through programs similar to Race to the Top or Innovation (i3) Grants. With jobs and economic growth a key focus, I expect areas that might be further targeted include community colleges, career and technical education, and college-to-career pipelines.

Without a doubt, given the little support for higher education demonstrated by Governor Romney, students and supporters of higher education should be hopeful that President Obama has four more years to continue working to make higher education an accessible opportunity for all students.

Samson Lim is the Executive Director of Seattle-based Scholarship Junkies, a scholarship resource organization that works to help students make higher education more affordable. Sam spent a year conducting ethnographic research on access to higher education in Berlin, Germany, as a 2010-11 U.S. Student Fulbright Scholar. Currently, Sam can be found buried in reading for his Masters of Education program in Politics and Education at Teachers College, Columbia University, although he emerges every once in a while to highlight higher ed and financial aid issues in 140 characters or less at @samsonxlim.

Mark McAdam: The (Indispensable) Republican Reformation

“What a waste.”

It is more than likely that this was the sentiment Republican strategists awoke to on Wednesday morning, as they pondered the past 16 months on the campaign trail.  “What a waste because–a sluggish economic recovery provided–it should have been so easy to beat Barack Obama on Tuesday.”

As pundits have begun offering their own explanations as to why Republicans failed to win back the White House on Tuesday, the Republican Party will have to reexamine its own platform if it hopes to remain electorally competitive and actually win future national elections. Below is an outline of four issue areas Republicans must address:

1) Same-sex marriage: 2012 is not 2004. Whereas opposition to gay marriage in 2004 actually helped bring out the vote and secured a second term for George W. Bush, public opinion on gay marriage has changed significantly in the past eight years. With 69% of voters under 30 years of age supporting gay marriage (not to mention 37% of Republicans between ages 18 and 29!), it hardly seems feasible to build a party platform around discriminatory policies which young people–i.e. those voting for the next sixty years–largely reject.

2) Immigration: The Republican primary process was a disgrace and provides clear evidence that a “race to the bottom” is possible in selecting a party’s nominee. On no issue was this as apparent as on how to deal with undocumented immigrants. With demographic trends suggesting that the United States is becoming less and less Caucasian, it should have been surprising that each candidate attempted to outperform the next in terms of alienating voters with an immigration background. (Or, for that matter, voters who know immigrants.) Wanting to cause conditions which would lead to “self-deportation” and endorsing ideas like that of an electric fence on the border does not only seem eerily un-American, but xenophobia is also bad politics in a demographically changing electorate.

3) Foreign Policy: The days in which neoconservative thought ruled Republican thinking on foreign policy seem over, yet instead of a competing paradigm emerging to replace it, Republicans face an intellectual void on foreign policy matters. (Admittedly, the same–i.e. an intellectual void–is also true for the Democratic Party.) Substantively meaningless, Republicans seem motivated to “be tougher than their opponents” on foreign policy, yet this reveals nothing about whether to intervene in Libya, how to respond to developments in Syria, or what the country’s relationship with Pakistan should look like. More importantly, there is no understanding–no vision–of what America’s role in the post-Cold War and post-9/11 world is or should be.

4) The Economy & The State: Likely the issue on which Republicans perform best, one is nevertheless forgiven to assume that the Republican answer to all economic matters is to deregulate and to cut taxes and government spending. Yet the assumption that the economic state of nature is one of harmony finds no credible support. Indeed, Republicans, who are only partially justified in purporting to be heirs of the free enterprise tradition, would do well to argue that the state can and must take on a positive role in a free enterprise framework: it must provide a legal framework, including oversight of markets; it must provide proper regulation; and it should push for legislation fostering competition. All of these ideas are entirely consistent with a free enterprise approach and, if put into place properly, do not lead to a path towards socialism.

Republicans mistakenly hoped that unemployment at 7.9% would suffice to win the White House. But without altering their rigid party platform and making it more amenable to the electorate as a whole, Republicans could lose many more national elections.

Mark McAdam is a football guru. When he’s not writing about the Bundesliga, he advocates on behalf of free societies. He has a Master’s degree in “Politics, Economics & Philosophy” and studied at the University of Hamburg’s Institute for Economic Systems, the History of Economic Thought and the History of Ideas.

Victoria Kwan: The Federal Judiciary

How much will Barack Obama’s re-election affect the composition of the Supreme Court? Looking at current circumstances, the answer is “not much.” Right now, there are three Supreme Court justices over the age of 75: Ruth Bader Ginsburg (79), her best friend Antonin Scalia (76), and Anthony Kennedy (76). Of the three, Justice Ginsburg is the most likely to retire in the coming four years.  The Brooklyn native is tough as nails–she has already weathered two bouts of cancer (while barely missing any work) and the death of her husband in her 19 years on the Court, and her mind remains as sharp as ever–but given her health history, her age and her liberal stance, it would not be surprising at all if she stepped down and gave a Democratic administration the chance to fill her place. President Obama would surely replace Ginsburg with a moderate to liberal justice who would preserve the current balance on the Court (four conservatives, four liberals and one swing vote).

Now, if either Justice Scalia or Justice Kennedy were to step down, Obama would have the opportunity to put together a five-liberal majority bloc. Barring a serious health issue, however, this isn’t likely to happen. Scalia accumulated quite a list of furious dissents before finally seeing a five-conservative majority coalesce under George W. Bush’s administration, and he relishes his position as the anchor of the Court’s conservative wing too much to voluntarily give up his seat. Meanwhile, despite all protestations to the contrary, Kennedy seems to greatly enjoy his current role as the swing vote.  Their job satisfaction and apparent good health mean that Citizens United–the ruling that the Democrats would most like to see SCOTUS overturn, and hence, the liberal equivalent of Roe v. Wade–will remain intact for at least the next four years.  On the other hand, Obama’s re-election also means that Roe continues to be safe for now.

Beyond the Supreme Court, there is the question of the re-election’s impact on the rest of the federal judiciary. George W. Bush made the appointment of young conservative judges a top priority in both terms, filling a total of 325 federal judgeships over eight years. So far, Obama has appointed 160 (which is behind the pace Bush and Clinton set in each of their first four years). The rate at which Obama has been able to fill judicial vacancies has been slow to say the least, creating judicial emergencies in some understaffed and overworked courts. Part of the reason for this is Republican obstructionism. As Slate reported in September, citing studies from the Congressional Research Service, even the uncontroversial Obama nominees have seen their confirmation times (the number of days between nomination and confirmation) jump up sharply compared to Bush’s nominees. None of Obama’s nominees to federal appeals courts have been confirmed in under 100 days, while 28.6% of Bush’s were.

But the blame does not rest solely on the Republican party: Obama himself has not made the appointment of judges a top priority in the same way Bush did. He has moved slowly to even name candidates–many of the current vacancies don’t even have nominees to vote on–and when he does nominate, Obama more often than not chooses moderates over outspoken liberals. And of course, in this past election cycle, the federal judiciary was barely discussed by the Obama campaign. One optimistic explanation (for liberals, that is) for Obama’s moderate first-term approach could be that he had re-election in mind, and can now nominate liberal judges at a much faster and more aggressive clip. But the likelier explanation is that, as Jeffrey Toobin writes, Obama simply does not see the courts as the most appropriate place to enact widespread social change, preferring to problem-solve through the legislative arena.

Bottom Line: when it comes to the courts, we should expect to see more of the same.

Victoria holds a J.D. from Columbia Law School in New York and has recently completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and posts primarily on legal issues, especially those involving the Supreme Court.

The Massachusetts U.S. Senate race heats up

Politics, , , , ,

Tonight incumbent Republican Scott Brown debated Democratic challenger Elizabeth Warren once again, and the exchanges were a bit more hostile this time. (David Gregory, as the moderator, was spotty at best.)

What I continue to find interesting about this race is how different the tenor — and how much lower the production values — are in comparison to the national presidential race. Tonight, for example, both candidates really whiffed in key situations: Scott Brown named Antonin Scalia as his model Supreme Court justice (a huge no-no in overwhelmingly Democratic Massachusetts), Elizabeth Warren clearly knew nothing about the Red Sox when asked (she should be at least marginally prepared for the obvious questions at this point; and no one should underestimate the importance of the hometown team in shaping Mass. elections), and then — perhaps most inexplicably — Brown missed on the same question when he had a clear chance to showcase his blue-collar, sports-aware Mass. roots (cue images of his pickup truck here).

On a side note, I ran across this video of Scott Brown greeting his supporters after the first debate several weeks ago, which aptly demonstrates his aisle-crossing, nice-guy appeal:

[youtube http://www.youtube.com/watch?v=J3FHx0i8f9M]

I’m still rooting for Warren, but it’s usually hard not to like this guy at least a little bit. Except for when he does this:

[youtube http://www.youtube.com/watch?v=LAIMc_U1F8M]
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