Doe v. Reed

The Supreme Court issued a fascinating decision this morning in connection with the marriage equality movement. It pits Justice Scalia against the anti-gay folks, and I’m not totally sure which side I agree with here.

Last year, in Washington State, the governor signed a same-sex domestic partnership bill into law. In response, a group called Protect Marriage Washington tried to get an initiative onto the ballot to repeal the law. They managed to get enough signatures to do so. In response to that, a coalition of groups sued under the state’s Public Records Act to learn the names of everyone who signed the petition.

Protect Marriage Washington argued that this would be a violation of the First Amendment rights of everyone who signed the petition, because it would have a chilling effect on speech. They argued that if you can’t sign a petition without staying anonymous, this will discourage people from signing petitions and thereby their free speech rights will be curtailed. They also argued that in this particular instance, the signers of the petition were subject to threats from gay-rights people.

This morning, the Court, in Doe v. Reed, ruled that there is no blanket right to anonymity if you sign a petition. But they refrained from ruling on the particular circumstances of this case; they kicked back to the lower court the issue of whether there’s a legitimate threat against the petition signers that would necessitate keeping their identities secret.

Chief Justice Roberts wrote the majority opinion, which was 6-3, although the lineup is a little splintered. Only Justice Thomas dissented completely, arguing that the First Amendment in all cases protects the anonymity of petition signers.

Scalia’s concurrence is the most interesting, though. He argues that there is no protection of anonymity regardless of whether there are threats; he examines American history and finds that there is not even a First Amendment right to a secret ballot in an ordinary election, because until the late 19th century, most states didn’t have secret ballots, and the secret ballot was instituted not because of First Amendment concerns, but in order to minimize election fraud.

The highlight of his concurrence is at the end:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously… and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

He’s basically saying to the anti-equality people: don’t be such wimps. Have the courage to argue your opinions in public.

And I kind of respect that.

I’m still not sure if I agree whether petition signers should have the right to their anonymity. I think I’d say, no, except in certain circumstances, such as someone signing a petition for racial equality in the South during the 1960s, in a time and place where there was a history and demonstrated threat of racial violence.

And I don’t like the idea that you can sign a petition to take away someone’s rights and then turn around and falsely complain that you’re subject to the threat of violence for doing so.

Finally, it’s interesting to read this decision alongside the Court’s January ruling that the Prop 8 trial in California shouldn’t be broadcast because it could cause “irreparable harm” to the anti-equality side’s witnesses.

It’s always funny to me that lots of anti-gay people make fun of gay men for being sissies and yet cower in fear of physical harm from them.

Prop 8 Trial Continues

During the Prop 8 trial, I’ve been following the Prop 8 Trial Tracker blog created by the Courage Campaign. It seems like our side has been putting on a great case, and the Prop 8 folks have been putting on a pretty lackluster case.

Of course, none of this really matters, because even if Judge Walker rules in our favor, and even if the Ninth Circuit upholds that decision, this will eventually wind up in the U.S. Supreme Court, where Justice Kennedy will be the deciding vote. No matter how rational our side’s arguments are, we’ll never get the votes of Roberts, Scalia, Thomas or Alito.

It’s really unclear what side Kennedy would be on. He’s written a couple of seminal pro-gay decisions — Romer and Lawrence. But what would he think about the validity of marriage equality?

No matter what happens in the Supreme Court, though, this trial has been a net plus. While I don’t know how much publicity the trial has had since the first week, it can only change people’s minds in favor of equality. I seriously doubt it would turn anyone againstmarriage equality who wasn’t already opposed.

Even if we lose in the Supreme Court, that’s not so bad. The Court wouldn’t outlaw marriage equality; it would just leave everything up to the states, which is where we are now. And any state-based marriage case that involved the interpretation of a state’s constitution would be unaffected, because the U.S. Supreme Court has no legal say over how to interpret a state constitution.

There are some who say that an adverse decision in the Supreme Court would set back the cause of equality, but that’s not necessarily so. As last week’s campaign finance case shows, the Court has no compunction about overturning its own precedents, even if those precedents are less than ten years old.

So I think that whatever happens, this trial has been a net win.

There’s a Martin Luther King quote that Obama has often used in the last couple of years:

The arc of history is long… but it bends towards justice.

In the long run, we’re moving toward equality.

SCOTUS: No Cameras in Prop 8 Trial

“Irreparable harm.”

Nobody expected the U.S. Supreme Court to get involved in the Prop 8 case so soon, but a couple of hours ago, the Court issued an order preventing the broadcast of the Prop 8 trial to five federal courthouses across the country after being asked to do so a few days ago by the pro-Prop 8 lawyers. The order doesn’t address whether the trial can be broadcast on the internet, because that issue is still being worked out at the lower level (“the technical staff encountered some unexpected difficulties preparing a satisfactory video suitable for on-line posting”).

This whole case has so many people on edge — me included — that anything the Supreme Court says about it, even on a supposedly tangential issue like cameras in the courtroom, is being given talmudic scrutiny.

What worries me is the makeup of the justices in this decision. It just so happens that the five justices who voted to bar cameras in this case — and therefore agreed with the pro-Prop 8 lawyers — are Roberts, Scalia, Thomas, Alito, and Kennedy, and that the four justices who dissented are Stevens, Ginsburg, Breyer, and Sotomayor. This is exactly the lineup a decision on the merits could have, with the possible exception of Kennedy.

The thing is, I tend to agree more with the majority here, that the lower court probably didn’t follow proper procedure in allowing cameras in this case. But I could be persuaded that the minority is right as well. This really isn’t an emotionally charged issue — except for the fact that it happens to involve a trial about Prop 8.

And the fact that the trial is about Prop 8 is relevant. The majority opinion, which is unsigned, isn’t just about proper procedure; it also endorses the claims raised by the pro-Prop 8 lawyers that some pro-Prop 8 people have been harrassed, even physically, and says that there could be “irreparable harm” in letting cameras in.

Never mind the fact that we’re not even talking about broadcasting the trial on the internet — we’re just talking about broadcasting the trial in five federal courthouses.

So, is this an attempt to paint pro-gay-rights people as crazy harrassers? What about the people who get gay bashed? What about kids who get driven to suicide because their classmates taunt them for being gay or even just for being effeminate? Granted, the anti-Prop-8 people apparently didn’t bring that up in their arguments. But in citing “irreparable harm,” the majority opinion seems a little too sympathetic to the anti-gay side here. And again, that worries me.

So “irreparable harm” rears its ugly head again. It’s a valid legal concept, and there’s nothing inherently wrong with it. But I can’t help but remember that it came up in Bush v. Gore, too. There, Justice Scalia said — in an example of great chutzpah: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

I really hope this procedural order isn’t a portent of how the case turns out.

New Yorker on Marriage Equality Lawsuit

The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.

Judicial Liberalism Not Happening

If you believe in judicial liberalism — which I sometimes do and, to be honest, sometimes don’t — the current direction of the Court is a little depressing. Tom Goldstein, Supreme Court analyst extraordinaire, points out that the conservatives on the Court are free to move at a measured pace in overturning liberal precedents, at least for a while:

For the moment, there is no reason to rush. Time permits a jurisprudence of not just originalism, or textualism, but actuarialism. The sand running through this hourglass will not expire for eight years.

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left. If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left. Nothing changes.

It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology. Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now). Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon. Again, no need to rush.

Unless something happens to Scalia, Thomas, Roberts, Alito, or Kennedy in the next few years, the Court is on a slow rightward trajectory.

On the issue dearest to my heart — gay rights — it probably doesn’t mean much. Kennedy has been pretty pro-gay (Romer, Lawrence), but I don’t expect the Court to take up same-sex marriage for a while. It didn’t overturn the nation’s sodomy laws until only 13 states were left with such laws; the Court is too cautious to constitutionalize same-sex marriage rights at this point, when only six states allow such marriage.

What else could the Court tackle? Don’t Ask/Don’t Tell will be history in the next few years — I’m pretty sure Obama will get around to it after health care and energy are taken care of. DOMA (full faith and credit clause) is a possibility — which would be a sidelong way to rule on same-sex marriage. But I don’t think the Court will touch that right now. Again, the issue is just too volatile, and the Court generally knows when to stay out of things. (It has learned from abortion; would Roe v. Wade come out the same way today? Who knows; the opinion would at least be less intrusive if it were written today.)

Of course, I could be wrong. Issues have a way of showing up on the Court’s docket unexpectedly, especially since it only takes four Justices to vote to hear a case.

But for now, things seem to be in stasis, at least where gay rights are concerned. As for everything else — drifting right.


This is a busy day for legal topics I’m interested in: the U.S. Supreme Court and gay rights law. Within the course of several hours we had the Sotomayor nomination and the California Supreme Court’s decision on Prop 8.

First, Sotomayor. She seems like a decent enough pick for the Court, but beyond her life story and the Jeff Rosen hack job on her, I don’t know much about her. I was hoping for a fierce liberal advocate to counter Scalia — I would have loved to see Obama pick Pam Karlan. Will Sotomayor be that fierce liberal advocate? Maybe, maybe not; I don’t know. You can read summaries of her past appellate rulings here. At any rate, it’s sure to be an interesting confirmation process.

As for the Prop 8 decision: no real surprise. The court upheld Prop 8 but kept the existing same-sex marriages intact. This is an incredibly long opinion — the main opinion alone is 135 pages — and I haven’t had a chance to read much of it. But the decision is ridiculous for the simple reason that it allows a majority of a population to strip a minority of equal protection of the laws. As the sole dissenting justice wrote today:

The equal protection clause is… by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.

This case is really about whether a particular method to change the California Constitution is itself a violation the California Constitution. I’ve skimmed the decision and it seems to spend a lot of ink on the difference between a constitutional “revision” (which requires the legislature’s imprimatur) and a constitutional “amendment” (which does not), but it doesn’t really matter, because whatever you call it, changing a constitution is supposed to be difficult. As I wrote last year, it should take more than a simple majority to change a constitution. The whole point of a constitution is to have a restraint on day-to-day political passions. A constitution is supposed to be higher than ordinary law and therefore harder to amend. If it’s no different to pass a constitutional amendment than to enact a popular initiative, then you have mob rule. If not for decisions by the United States Supreme Court that found race and sex discrimination to be violations of the U.S. Constitution — which outranks the California Constitution — then it would be possible for the general population of California to enshrine constitutional discrimination against blacks and women today. The process for amending the California Constitution is nonsensical.

Our founders didn’t believe in direct democracy; they believed in representative government. They believed in the wisdom of having a particular group of people, chosen by the populace, to legislate and act in their best interests. They believed that this political class had “virtue,” an amorphous concept that I don’t think really exists, but put virtue aside and the point remains that legislators are usually smarter and more thoughtful than the populace at large. (There are exceptions, of course, such as Michelle Bachman.) The stupidly simple California amendment process flies in the face of the constitutional and political theories in which our founders believed.

Nevertheless, although this decision is a big disappointment for supporters of gay rights, I find myself not too concerned in the long run. Constitutional jujitsu is possible here: since it’s so easy to amend the state constitution, all you need is a simple majority to overturn Prop 8. The vote in November was close, 52% to 48%. Attitudes continue to change, and at some point — hopefully soon — a majority of Californians will support same-sex marriage rights, and Prop 8 will lie in the dustbin of history.

Scalia and Guns

A couple of weeks ago, Justice Scalia, in dissenting from the Supreme Court decision stating that Guantanamo detainees have habeas corpus rights, lamented that the ruling “will almost certainly cause more Americans to be killed.”

Today he wrote an opinion finding a broad right to own handguns, a decision that, one could argue, “will almost certainly cause more Americans to be killed.”

Maybe, maybe not, but thanks to Slate for pointing out the contradiction. If it is one.

I don’t know whether the ruling is correct or not. The opinion and two dissents run to more than 150 pages, and they’re unusually chock-full of scholarly, historical analysis. And we’re talking about a sentence that was written more than 200 years ago in a vastly different world with vastly different writing styles and vastly different guns.

This is what happens when you try to interpret one of the world’s oldest functioning constitutions. Do other countries, with newer constitutions, have this problem? Do other countries’ judges have to interpret such sentences as, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”? Let alone the crappy sentence structure, what do the individual words mean?

It’s worth noting that the D.C. law at issue was pretty extreme. It banned the possession of handguns in your own home, and all other types of guns in your home had to remain either unloaded and dissassembled or bound by a trigger lock or similar device. The majority opinion has narrow effect — it strikes down this law, but it doesn’t discuss other types of gun laws, including that prevent criminals or the mentally ill, etc., from having guns.

Scalia ends his opinion as follows:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

What happens if we change a few words?

We are aware of the problem of terrorism in this country, and we take seriously the concerns raised by the many amici who believe that the stripping of habeas corpus rights is a solution. The Constitution leaves the government a variety of tools for combating that problem… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the stripping of habeas corpus rights except in times of rebellion or invasion. Undoubtedly some think that the right of habeas corpus is outmoded in a society where the threat of terrorism is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce constitutional rights extinct.

Who’s right?

Who knows?

Isn’t Supreme Court analysis fun?

Scalia Hearts SaTC

Justice Scalia is a fan of “Sex and the City.”

Apparently Antonin Scalia is a Sex and the City fan. When Sarah Jessica Parker finished an interview with Charlie Rose on May 29, she left the Bloomberg Building, where the show is taped, and stopped for a cigarette in the courtyard. The conservative Supreme Court justice emerged from a nearby Town Car and rushed over to praise the star. “He was absolutely gushing, telling her how much he loved her show and how excited he was to see the movie,” says a witness. “Finally, he asked her if he could bum a cigarette.” She obliged, the witness said, and then Scalia strolled away. A Supreme Court spokeswoman confirmed the meeting but denied the cadge. “He was there for a symposium,” she said. “And he lent her a match.”

Scalia and 24

Once again, Justice Antonin Scalia confuses television with the real world.

“I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?”

Yes, that kind of thing happens all the time.

As Andrew Sullivan once pointed out,

Earth to Justice Scalia: Jack Bauer does not exist.

If you have some time to kill, here’s an article from the New Yorker last year about the influence of “24.”

[Howard] Gordon [“24’s” show runner], who is a “moderate Democrat,” said that it worries him when “critics say that we’ve enabled and reflected the public’s appetite for torture. Nobody wants to be the handmaid to a relaxed policy that accepts torture as a legitimate means of interrogation.” He went on, “But the premise of ‘24’ is the ticking time bomb. It takes an unusual situation and turns it into the meat and potatoes of the show.” He paused. “I think people can differentiate between a television show and reality.”

Not so much.

Clarence Thomas

With the publication of his new autobiography, Clarence Thomas is back in the news in a big way.

Clarence Thomas has lots of issues to sort out. Here are some random thoughts on him that have swirled around my head over the years but that I’ve never put into words.

Thomas says it’s the liberals, black and white alike, who are hung up on his race, but he’s the one who seems hung up on it.

He still believes that he was attacked during his 1991 confirmation hearings because he was black. But doesn’t he understand that the only reason George H.W. Bush nominated him to the Court was because he was black? If he hadn’t been black, he wouldn’t have gotten the nomination. Thurgood Marshall, the only black justice on the Court, was retiring; Bush would look bad if he nominated a white person to replace him, leaving an all-white Court. So Bush decided to have it both ways; if he was going to nominate a conservative, why not nominate a black one? That would flummox those Democrats, wouldn’t it? They wouldn’t vote against a black person, would they? Thomas had been a judge for a less than a year and a half; there were numerous other people Bush could have nominated to the nation’s highest court. Bush clearly used Thomas in a cynical ploy to get liberal senators to vote for a conservative nominee. Given this, what reaction did Thomas expect from people?

Thomas accuses the liberal black community of attacking him in 1991 because he was a black man who betrayed his race. That’s not quite accurate. The anger at Thomas has less to do with Thomas himself and more to do with the justice whom Thomas replaced.

Thurgood Marshall, appointed by Lyndon Johnson in the late ’60s, was a legendary figure even before he became the first black justice on the Court. He’d served as the NAACP’s chief counsel and had argued numerous black civil rights cases before the Supreme Court, culminating in his arguments in Brown v. Board of Education in 1954. During his 24 years on the Court, from the Johnson years into the conservative Reagan and Bush years, he became a liberal holdout for civil rights alongside his colleague William Brennan, even after their fellow liberal colleagues were replaced with justices like William Rehnquist and Antonin Scalia. For Bush to replace Thurgood Marshall with someone like Clarence Thomas was a slap in the face to everything Marshall had stood for. So of course there was going to be anger.

But liberal black America wasn’t really angry at Thomas. Obviously I can’t read minds, and generalizations are unreliable, but it seems to me that liberal black Americans were actally angry at Bush and the Republicans. Bush tried to treat black Americans as fools whom he could easily manipulate; just nominate a black person and you can win the blacks over. Not only was this patronizing, but it also smacked of racism itself.

So Thomas is mistaken about black America’s anger.

But it’s not just black liberals whom Thomas holds a grudge against; it’s white liberals, too. Thomas accuses white liberals of attacking him because he was an “uppity black.” I can’t speak for all liberals, but as for me, I didn’t oppose Thomas because he was black or “uppity,” and it’s an insult to me to say so. I opposed Thomas because (1) he was a conservative, and (2) he didn’t seem to cut it on the merits. His race had nothing to do with it — except for the cynicism Bush created by simultaneously nominating him because of his race and saying that his race had nothing to do it.

I haven’t even gotten to the Anita Hill accusations yet. That’s a whole other area where Thomas seems to be either hung up on his race or hypocritically using his race as a weapon.

Thomas has claimed that he suffered through a “high-tech” lynching in 1991 when Anita Hill accused him of sexual harrassment. He’s claimed that his opponents decided to use the spectre of the stereotypical black male sexual predator to try to destroy him.

I’ve never put this into words, because it’s always seemed somehow racist or reverse-racist to do so. But here goes.

The thing is, Clarence Thomas hardly fits the stereotype of the black male sexual predator. He’s only 5-foot-8-1/2, and during his confirmation hearings he wore big nerdy glasses. In fact, he came across as rather shy and bookish and the farthest thing from a sexual predator there could be. I can’t step into the mind of Joe Racist, but it doesn’t seem to me like Joe Racist would apply that classic black stereotype to Thomas. Maybe he would, I don’t know. But it seems like a stretch, and it seems contradictory for Thomas to make such a paranoiac accusation while claiming to be so post-racial, enlightened, and independent-minded. The accusations of sexual harrassment didn’t gain traction because Thomas was black; they gained traction because Anita Hill seemed like a highly credible witness. Race had nothing to do with it.

Another facet of the Clarence Thomas puzzle is the issue of affirmative action. Thomas hates affirmative action because he believes that it taints his Yale Law School degree. Thomas does have a point here; without affirmative action, Thomas either would have been rejected from Yale Law School on the merits, in which case we wouldn’t be having this discussion; or he would have been accepted to Yale Law School clearly on the merits, in which case we also wouldn’t be having this discussion.

But the only reason Thomas is on the Supreme Court right now is because of a type of affirmative action; his nomination was race-based. Thomas opposes affirmative action while denying that he’s benefitted from it. Granted, it’s not exactly the same, because Bush was not compelled by any law or written policy to nominate Thomas. And Thomas was nominated not in order to make up for past racial injustice, or to give Thomas a leg up; he was nominated as a cynical political calculation. (I guess it’s possible to give Bush the benefit of the doubt — perhaps he nominated Thomas for noble reasons, to show Americans that there can be diversity of political opinion among blacks and that black people do not all have to march in lockstep. That’s a gesture that has some value, but even if it’s the case, and I’m not saying it is, it still means Thomas’s nomination was race-based.)

So there are a couple of paradoxes here. Thomas has reached the pinnacle of legal achievement — a lifetime appointment to the Supreme Court. He’s set for life. He won the fight. And yet he’s still angry.

He’s also delusional. He wants to believe that his race has nothing to do with his being on the Supreme Court and everything to do with his being attacked. In reality, his race has everything to do his being on the Court but very little to do with his being attacked.

Clarence Thomas is fascinating. If he didn’t exist, someone would have to invent him. He’d make a great literary character in a work of fiction — except that he already seems to have written it in his own mind.

Concurrence Hell

I enjoy reading the little paragraph at the end of a Supreme Court decision syllabus summarizing who voted with whom. They tell you how complicated any particular court decision is.

Here are some examples, from simplest to most complicated.

First, there’s the per curiam opinion, which is unsigned, and therefore needs no summary at the bottom of the syllabus telling who voted with whom:

There’s the unanimous opinion:

SOUTER, J., delivered the opinion for a unanimous Court.

Then there’s the case with a lone dissenter or concurrer:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

There’s the case with a few dissenters signing one opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

There’s the case with a partial concurrence or dissent:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV.

There’s the case with both a concurrence and a dissent:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

There’s the case with multiple concurrences and/or dissents:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

There’s the case where it gets a little more complicated:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Part III. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.

Or even more complicated:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

But I think my favorite is this one, from a 2003 campaign finance decision (which, incidentally, was gutted last week):

STEVENS and O’CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II—A, and II—B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

So much for judges being mere umpires!

Oh, For a Helicopter

New Jersey’s two Democratic senators, Frank Lautenberg and Bob Menendez – the latter of whom is in a tight race against Republican Tom Kean, Jr. – both voted for the president’s awful torture/enemy combatant/habeas-corpus-stripping bill yesterday.

If I were still a New Jersey resident, I would consider not even voting for U.S. Senate this year. If Democrats can’t stand up for themselves, they don’t deserve to control either house of Congress.


Except that Glenn Greenwald makes an excellent point.

But a desire to see the Democrats take over Congress — even a strong desire for that outcome and willingness to work for it — does not have to be, and at least for me is not, driven by a belief that Washington Democrats are commendable or praiseworthy and deserve to be put into power. Instead, a Democratic victory is an instrument — an indispensable weapon — in battling the growing excesses and profound abuses and indescribably destructive behavior of the Bush administration and their increasingly authoritarian followers. A Democratic victory does not have to be seen as being anything more than that in order to realize how critically important it is.

A desire for a Democratic victory is, at least for me, about the fact that this country simply cannot endure two more years of a Bush administration which is free to operate with even fewer constraints than before, including the fact that George Bush and Dick Cheney will never face even another midterm election ever again. They will be free to run wild for the next two years with a Congress that is so submissive and blindly loyal that it is genuinely creepy to behold.

Greenwald also makes the point that Supreme Court Justice John Paul Stevens is 86 years old, so Bush might get another court appointment in the next two years. If the Republicans keep the Senate and Stevens dies or becomes incapacitated, then Bush can get nominate whomever he wants in his place, meaning that “the Supreme Court will be composed of a very young five-Justice majority of absolute worshippers of Executive Power — Thomas, Scalia, Roberts, Alito and New Justice — which will control the Court and endorse unlimited executive abuses for decades to come.”

Or, as she puts it:

Imagine you are stranded on your roof in rising floodwaters. Sooner or later you’re going to drown if you aren’t rescued. Yet you refuse to be rescued in an old rowboat because it might be leaky and you are waiting for a helicopter.

Well, folks, the Dems are the rowboat, and there ain’t gonna be a helicopter.


The Presumption of Liberty

I recently finished reading a brilliant book that’s greatly affected my thinking about constitutional theory: Restoring the Lost Constitution: The Presumption of Liberty, by Randy Barnett. Here’s a summary of the book. Barnett, a law professor at Boston University, is a libertarian and a believer in an originalist interpretation of the Constitution. Because there is no true way for 100 percent of the population to consent to the Constitution, Barnett believes there should be a “presumption of liberty” – people have the right to be left alone unless it’s really necessary for them not to be. He states that the courts have wrongly eviscerated the Ninth Amendment – which protects unenumerated rights from the federal government – and the Privileges or Immunities clause of the Fourteenth Amendment – which he contends protects unenumerated rights from the state governments. These unenumerated rights are a subset of natural rights, which philosophers like John Locke said are the rights we hold merely because we are human beings, even before government comes into existence.

He disagrees with the Supreme Court’s creation of the doctrine of “fundamental rights,” or rights that deserve greater protection than others. Rights are rights, Barnett says, and there should be a presumption in favor of all of them. One thing I really like about this book is how Barnett criticizes many Supreme Court doctrines, such as the doctrine of fundamental rights and the doctrine of the various levels of scrutiny used in equal protection analysis. These doctrines are nowhere to be found in the constitution and don’t always make sense. (While I’m on this, I’d really like to find out more about the original meaning of the Fourteenth Amendment’s equal protection clause. Was it meant to apply exclusively to racial classifications? And does “equal protection of the laws” really mean what we say it means today?)

Barnett’s reason for being an originalist is very persuasive. Unlike many ideologues, such as Bork and Scalia, he’s not a results-oriented originalist. He believes in originalism because he believes in the importance of a written constitution. He says that if you believe in a “living constitution,” what you’re really saying is that you believe the constitution is flawed and needs to be changed. He finds nothing inherently wrong with this position, but he says that its proponents should acknowledge it so that there can be an honest debate. There is a valid way to change the constitution, of course: via the amendment process.

The only problem I have with this theory is that I’m not sure how much it protects equal rights for minorities. Barnett barely discusses equality in his book. Constitutional amendments require the support of supermajorities, and majorities are not usually concerned about granting equal rights to minorities. James Madison himself was concerned about oppression by a majority as well as by a minority.

Specifically, of course, I’m most interested in how Barnett’s theory applies to gay rights. Barnett supports the outcome of Lawrence v. Texas, stating that Justice Kennedy properly grounded his opinion in the right to liberty rather than the iffier right to privacy. (The article linked in the previous sentence is a great introduction to Barnett’s thought, actually.) But Barnett doesn’t discuss same-sex marriage in his book, and I can’t find anything online about whether he thinks same-sex marriage bans are constitutional.

Is marriage a natural right? A liberty? Technically it’s a government benefit. Libertarians probably believe there should be no marriage at all. I’m not a libertarian and I disagree. At any rate, you can argue that although the government is not required to allow marriage, because it does allow it, it should do so on an equal basis. But is that necessarily a justiciable court claim? Hard to say.

I would much prefer that same-sex marriage be permitted by legislatures instead of by courts. I think litigation is a last resort.

What do you do when something is right, but the legislature won’t allow it? That’s the question.

Lithwick on Hamdan

I love Dahlia Lithwick. (You can see all her Slate columns here – I have it bookmarked so I can see whenever she has a new one.) Today she provides an entertaining summary of yesterday’s Supreme Court arguments in Hamdan v. Rumsfeld. Apparently Justice Souter got uncharacteristically angry. As for another justice, Lithwick writes, “What the hell has gotten into Justice Antonin Scalia? Between his extracurricular pronouncements on the arguments in this case (and I urge you to listen to the whole speech yourself) and his extracurricular hand signals last weekend, nobody is quite sure what has come over the man. He is ever more the Bill O’Reilly of the High Court.”

As for the case itself, the issue is (1) the legality of military tribunals set up by the executive branch that it claims are justified by “the war on terror,” and (2) whether the Court is even allowed to hear the case at all, because after the Court granted review of the case, Congress passed a law removing the issue from the Court’s jurisdiction. But (and I don’t know if I totally have this right) because the issue involved habeas corpus, the right of an arrestee to challenge his/her detention, it’s not clear whether Congress was allowed to strip the Court’s jurisdiction in the way it did.

I’m kind of confused here. I guess I would be less confused if I read the briefs. But who has time?

Roberts’s First Opinion

Chief Justice Roberts issued his first Supreme Court opinion yesterday. Here’s a stylistic analysis of the opinion. My favorite part of the analysis:

For anyone who attended the oral argument in the case, Wednesday’s decision also shows that Roberts is unafraid of standing up to Justice Antonin Scalia. One of the relevant precedents in the case was a 1968 case called Newman v. Piggie Park Enterprises. When one of the lawyers at argument referred to the case by the shorthand Piggie Park, Scalia interrupted and said, only half-jokingly, “You know, it really would improve the dignity of this Court if we referred to Piggie Park as Newman.”

Without apology, Roberts referred to the case throughout his opinion Wednesday as Piggie Park.

Thoughts on Alito

Get used to saying “Scalia, Alito” rapidly, as in, “Roberts, Scalia, Alito, Thomas,” who will be voting closely together in lots of cases.

Fortunately, there are still five pretty solid votes on the Court for the area I care most about, gay rights – Stevens, Kennedy (who wrote Lawrence and Romer), Souter, Ginsburg, and Breyer. Now that O’Connor’s presumably gone, I think Kennedy’s going to become the new swing vote. Also interesting and still semi-applicable: this SCOTUSblog article from June about a possible “gang of three” – just replace “Rehnquist” with “Alito” in the following excerpt:

On a Court somewhat more conservative without O’Connor, Kennedy’s influence seems sure to grow. He has a chance to become the new balance wheel, a role that was filled so routinely by O’Connor. (Even if there were to form a solid Rehnquist-Scalia-Thomas-Roberts phalanx, they would still need Kennedy to prevail, and he would not be with such a quartet automatically.) Kennedy also has more influence than is sometimes credited to him. He has a store of common sense that saves him from ideological rigidity, and that steers him away from agenda-driven voting. He has an even deeper sense of what history asks of the few who become members of the Court. Those are summonses to the use of sound judgment.

As I’ve said recently, despite my relatively liberal social views, my judicial views have been in flux lately. Alito seems not be an ideologue or an asshole like Scalia, which is good. I prefer him to someone like Janice Rogers Brown or Priscilla Owen. (And hey – go, New Jersey, with two out of nine seats!)

The Harriet Miers nomination was bad for the Court as an institution. The Alito nomination is good for the Court, regardless of how good or bad it turns out to be for the country.


Both SCOTUSBlog and Confirm Them predict that the new Supreme Court nominee will be Samuel Alito of the Third Circuit, a judge whose chambers are in Newark, New Jersey – and not too far from my office! And I worked in his building one summer during law school when I interned with a federal district judge in Newark. Alito is nicknamed “Scalito” because his views apparently resemble those of Scalia, but apparently he’s not an ass like Scalia is.

Article III Groupie thinks it could be Luttig. She thinks Alito could wind up as the Edith Clement of this round to John Roberts’s Luttig. We’ll see.

I was thinking it might be McConnell, but apparently he’s not under consideration because conservatives might not be totally comfortble with him on Roe and other issues.

This could be announced Monday.

Roberts and Romer

I’m very intrigued by the news about Judge Roberts and Romer v. Evans. My initial cautious admiration had been turning into worriment in the last couple of weeks, with all the news about his cocky Reagan-era views, but this reassures me a bit. It doesn’t mean a whole lot – again, whom you represent or advise as a lawyer doesn’t necessarily say anything about your own views. But I can’t imagine that Antonin Scalia or Clarence Thomas would have volunteered, pro bono, to help out the gays.

On the other hand, the issue in Romer v. Evans was pretty egregious. It involved the following amendment to the Colorado constitution:

“Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”

In short, the amendment (which passed) legalized all types of discrimination against gays and lesbians – in employment, in housing, in whatever. Opposition to that amendment wouldn’t necessarily translate to sympathy for gay marriage or other gay-rights issues. As Arthur Leonard says in the linked article above, “There is certainly a difference between striking down laws that impose second-class citizenship on a class of people and supporting more affirmative rights for such people, and I don’t think a judge’s position on one necessary predicts his position on the other.” (It could be argued, of course, that same-sex marriage bans impose second-class citizenship on a class of people, but I know what he’s getting at.)

So like everything else that has been uncovered thus far, it doesn’t say much about Roberts other than that he’s not a Scalia or Thomas. Well, it also says he might not be a Rehnquist.

But also, Roberts, at age 50, would be the youngest member of the current Court by seven years. (Thomas is 57.) Scalia will be 70 next year. While age does not predict attitude, someone born in 1955 will have grown up in a different cultural context than someone born in 1936. Judge Roberts was 14 at the time of the Stonewall riots, for instance. Not that that necessarily means anything, but it’s something to keep in mind.

Anyway, this whole thing is intriguing. I guess we’ll see what it means.