Tag Archives: stevens

Stevens to Retire; Appoint a Woman!

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So, there it is… Justice Stevens is retiring at the end of this term, the day after the Supreme Court begins its summer recess.

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.

SCOTUS: No Cameras in Prop 8 Trial

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“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

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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.