First, some geekery. His retirement date means that he’ll just miss becoming the second-longest serving justice in Supreme Court history, as I speculated last fall, since the Court will most likely recess on June 28. Even if the Court recesses on July 1 — which is not likely and might happen only if there are too many decisions to announce at the end of the term — Stevens would retire on July 2, and thus tie Stephen Field as the second-longest serving justice. Right now Stevens ranks fourth; 41 days from now he’ll surpass the legendary John Marshall to become third.

I’m sure he doesn’t care about any of that stuff, though. Only geeks like me do.

Now the speculation begins on a successor. And I really, really want Obama to nominate another woman.

It’s ridiculous that in the year 2010, only two of the nine justices are women. Bush tried to nominate a woman to replace O’Connor — Harriet Miers — but when her nomination failed, he nominated Sam Alito, leaving Ruth Bader Ginsburg as the only woman on the Court. Obama did the right thing in choosing a woman to replace Souter, and Stevens’s replacement should be a woman as well.

Demographics should be secondary to a Supreme Court nomination, but when a president is looking for someone of a particular ideology or judicial temperament, there are usually several people to choose from, so he has the leeway to choose another woman. Fortunately, it looks like the name with the most buzz for the last couple of months has been Solicitor General Elena Kagan. Several weeks ago, SCOTUSblog profiled her, as well as a few other contenders, and considered her the front runner.

But this is interesting — if she were nominated and confirmed, the Supreme Court would have six Catholics and three Jews. Would fundamentalist Protestants be annoyed at having no representation? After all, to quote that link, “it’s not like having devout Catholics on the bench is a substitute for having a couple of Protestants, any more than having a Clarence Thomas on the bench is the same as having an African-American.”

The Supreme Court is problematic today — a small group of nine people can enact major change in this country, for better or for worse. Perhaps a larger court would be better, and not just because it would dilute the identity politics somewhat. (The Constitution doesn’t say there have to be nine justices — all it takes is an act of Congress, although the last time a president tried to make that happen, it didn’t work out.)

Of course, even in a larger body — the current United States Senate — only 17 out of 100 members are women. But given the infrequency with which the Supreme Court membership turns over, change comes even more slowly to that body.

Even three out of nine justices would be too few women on the Court. But it would help redress a great annoyance.

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.

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.

If Stevens announces retirement effective at the beginning of the summer recess, like Souter did, that would peg his retirement at about 300 days from now, and he might just miss surpassing Justice Field as the second-longest-serving justice. If he announces a retirement upon the swearing-in of his successor, like O’Connor did, then that would be a couple of months longer (or even more, if we get a Roberts–>Miers–>Alito situation, like we did four years ago), and in that case he would definitely surpass Field, leaving him second only to William O. Douglas in longevity — who happens to be the man Stevens replaced on the bench in 1975.

Think about that. If Stevens retires next spring, then only two justices will have held that particular Supreme Court seat since 1939. And who held it before Douglas? Louis Brandeis! That’s how long it’s been.

Okay, all it says is, “JUSTICE SOTOMAYOR took no part in the consideration or decision of these motions and this petition.”

But ya gotta start somewhere.

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.

It all got me wondering why there’s no uniform method for filling a vacancy. Each state has its own law for replacing a senator; most states require the governor to appoint a replacement, but some states limit that power, requiring the replacement to be from the same party as the vacater and/or requiring the governor to choose from a short list. And some states don’t let the governor make the appointment at all, requiring a special election instead. This leads to lots of confusion; for example, many people thought that Sarah Palin could have appointed herself to replace Ted Stevens if he was expelled, but it turns out that Alaska requires a special election to fill a vacant seat.

So where did this craziness come from, especially given that the U.S. Supreme Court ruled in 1995 that states aren’t allowed to set term limits for their U.S. senators?

Well, I did some googling and it turns out that it comes from the Seventeenth Amendment. This is commonly known as the amendment that required U.S. senators to be elected by the people instead of being chosen by state legislatures. But the amendment’s second paragraph states:

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

So, although the people must eventually vote in special elections to fill Senate vacancies, state legislatures can empower the governor to fill those vacancies temporarily. Hence, state-by-state differences in how the process unfolds.

This has been another episode of “Answers to Questions You Didn’t Ask.”

(P.S. Here are all the state statutes and relevant federal statutes and constitutional clauses. Found here.)

While the film revolves around Carrie and Big’s wedding, Mr. King was insistent that no mother or father of the bride be shown. “My idea always was that these women were purely creations of New York,” he said. “The prototype of the series is that these are four grown-ups who make a family of one another.”

Also driving Mr. King’s decision was his fear of falling into cliché. “Who was going to play Carrie’s mother? Connie Stevens? It’s such a traditional sitcom limb. It’s the Thanksgiving episode, and there are Wilford Brimley and Elaine Stritch. I never wanted to do anything like that.”

I would pay to see Wilford Brimley and Elaine Stritch as anyone’s parents in a sitcom episode.

Nothing about Mark Penn or his Colombia trade deal. But questions about Wright, and some Weatherman guy.

But Obama didn’t respond well to the questions at all. He sounded halting and hesitant and defensive when he spoke.

Clinton, meanwhile, seemed polished and prepared and seemed to know her stuff. If this were the only debate I’d seen, and I were voting in the Pennsylvania primary, I might vote for her.

Not that she has a chance of getting the nomination anymore, but she might very well be a better candidate against McCain than Obama would be. She’d certainly be better than either John Kerry or Al Gore at going on the offensive and standing up for herself.

Obama sometimes seems to be morphing into Adlai Stevenson before our eyes. We might get killed again this fall with him as the nominee.

Obama works under the assumption that people are smart. Case in point: his wonderful speech on race last month.

Clinton, on the other hand, works under the assumption that people are dumb and need things explained to them in simple terms.

Unfortunately, I think most people are dumb.

I don’t necessarily mean that as a knock against Clinton. It’s just the way things seem to be.

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!