"This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone..."

Erwin Chemerinsky — the UC-Irvine law school dean — argued in the Supreme Court yesterday. His client, John D. Apel had been banned from protesting within Vandenberg Air Force Base (in an area set aside for protests) after convictions for vandalism and trespass.

But Justice Antonin Scalia said the question before the court did not involve the First Amendment.

“You can raise it,” he said, “but we don’t have to listen to it.”..

Later, Justice Kennedy said: "You have a First Amendment argument... I understand that. But let’s just concentrate on the property ownership.” And Scalia said: “You keep sliding into the First Amendment issue... We’re only interested in whether the statute applies."
 
The Court is reviewing a 9th Circuit opinion that said that the federal statute under which Apel was convicted didn't apply to the situation in which the feds had given some public access to the military base (which they'd done to give access for protests).

ADDED: The wording of the first sentence of the linked report (at the NYT) made me think Apel was not actual on the base but only near it: "John D. Apel... was convicted of breaking federal law by entering an area set aside for protests near the main entrance to Vandenberg Air Force Base." Near the main entrance — you'll see if you keep reading — was on the grounds of the base, but it was "an area open to the public on the other side of a painted green line that separates the closed part of the base from the Pacific Coast Highway."

What Justice Scalia really means when he says he believes in the Devil.

About halfway her wonderful interview with Justice Scalia, after some discussion of homosexuality in legal and in Catholic doctrine, Jennifer Senior pushes the old judge to worry about how history will look back on his era of the Court. The first prompt — "Justice ­Kennedy is now the Thurgood Marshall of gay rights" — gets merely a nod. She tries again, with another non-question: "I don’t know how, by your lights, that’s going to be regarded in 50 years." He says doesn't know and he doesn't care:

Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. 

Some might hear "standing athwart" homosexual rights and get an amusingly unintentionally sexual picture of Scalia straddling gay men. But I assume it's an allusion to William F. Buckley's famous 1955 mission statement for The National Review: "It stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it." The topic was history, you know. And who else says "standing athwart"?

Scalia has shifted from the topic of Kennedy's legacy to his own and — declining to guess what the people of the future will think — he says: "When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy."

That is, he pulls Senior back to the perhaps-more-comfortable topic of religion. She obliges, asking him if he believes in heaven and hell, which he does, and they go back and forth about who goes where, and then, as she proceeds to a new topic — "your drafting process" — he pulls her back again: "I even believe in the Devil."

You do?

Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

He's already connected his Catholicism to the accession to the authority of Catholic doctrine. The devil is in the doctrine, he's Catholic, and ergo, he believes in the Devil.

Asked for evidence of the Devil lately, Scalia says:

You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore....

What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

Later, he asks Senior if she's read "The Screwtape Letters," and not having read "The Screwtape Letters" in decades, I'm not sure if he's lifting these nifty observations from C.S. Lewis or not.

Senior wants to know whether it's "terribly frightening to believe in the Devil." He says:

You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

He seems to be trying to get a reaction out of her, because she defends with: "I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it." He says:

I was offended by that. I really was.

She doesn't grasp his statement or at least what she says next indicates that she didn't. She says: "I’m sorry to have offended you," as if he was an ordinary person taking offense, when in fact, he's cracking a joke. The joke is to point at her surprise at his bold expression. It was a subtle way to say: Hey, I thought I was famous for bold expression! But he's not so bold — or so bad a comedian — as to redo a joke to drive it home. Either you get it or you don't. He moves forward. Here's where he brings up "The Screwtape Letters," which she says she's read. He says:

So, there you are. That’s a great book. 

That suggests all the interesting things he's throwing out about the Devil are ideas in or closely tracking that book he likes.

It really is, just as a study of human nature.

And there you are. He believes in the Devil not just, perhaps, because he yields to the authority of a religion of dogma and authority, but he believes in the Devil because the Devil is a literary device for exploring human nature, and how can we not believe in human nature and literature?

Living in compressed time with Supreme Court Justice Anthony Kennedy.

"We live in an era of time compression," said Justice Kennedy. And "It’s simply stunning to me to see the changes in attitudes." He was talking about attitudes about sexual orientation.

At the same time — compressed time, presumably — he said that, in a "functioning democracy," courts should not be "resolv[ing] the most serious issues of the day."

"I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court."

Attitudes are changing rapidly, and in a democracy, serious issues should be resolved outside of the courts. And yet he wrote the decision that struck down part of the Defense of Marriage Act.

Why not wait for the democratic process to play out?

Maybe — in the mind of Anthony Kennedy — they did wait. DOMA was passed in 1996. They waited 17 years.

In compressed time, that's what? Half a century?

DOMA as "a bare congressional desire to harm a politically unpopular group."

In United States v. Windsor, the Supreme Court finds that DOMA "violates basic due process and equal protection principles applicable to the Federal Government." (The constitutional text is the 5th Amendment which only says "due process," but the Court has long viewed "equal protection," which is explicit in the 14th Amendment, as implicit in the 5th Amendment.) Justice Kennedy writes for the majority:

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).

The unpopular group to be harmed in Moreno was hippies. To understand the scourge of hippies as it was seen at the time, I highly recommend this 1971 NYT  article: "Ripping Off, The New Life Style" (citing the Jefferson Airplane lyric "All your private property is target for your enemy/And your enemy is/We-e-e"). Congress was hoping to keep food stamps away from hippies, and that didn't cut it.

So is keeping marriage away from gay people no better than denying food stamps to hippies?

In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 19 (quoting Romer... at 633). 

How is excluding gay people from marriage unusual? It's an old tradition. What's unusual is Congress horning in on an area of traditional state regulation:

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. 

And there's "strong evidence" that DOMA had "the purpose and effect of disapproval" of same-sex couples.

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

That language about "stigma" and "a separate status" should be useful in challenging state law that creates "civil unions" for gay people, though the problem in Windsor was only about the federal government's refusal to recognize marriages that the states had validated.

... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive....

Ultimately, the Court finds "no legitimate purpose" —  only "the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." Again, it's hard to see why the states' willingness to dignify these relationships is essential, but that's the question before the Court today. I don't think, in the end, that this is really very much about federalism, except as a steppingstone. This is a case about rights. Even though there's no heightening of the level of scrutiny, the Court aggressively characterizes the government's purported legitimate interests from the rights claimants' point of view and sees nothing but disparagement, denigration, and stigma.

ADDED: I'm just getting to the Scalia dissent saying the Kennedy opinion may "initially fool[] many readers... into thinking that this is a federalism opinion" and seeing no "point" in the long discussion of state power to define marriage other than — he guesses — to make a "pretense" that this case is only about limiting the federal government and "leaving the second, state-law shoe to be dropped later, maybe next Term." I said "steppingstone." Hopping across a stream, taking off shoes... the point is the same. It's a case about rights.

Should respect for the initiative process have moved the Supreme Court to stretch the restraints of the standing requirement?

Chief Justice Roberts, writing for the Supreme Court majority in Hollingsworth v. Perry, says:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

There was some argument that there needed to be a way for the results of the state's initiative process to be defended when the state's elected officials didn't like those results, as happened with Prop 8. The dissenting opinion said the majority "disrespects and disparages" this political safeguard that is part of California law. The Chief's answer was the state can have its law, but it doesn't have power to change the federal law of standing that limits federal courts.

[T]he fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.

The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.

In other words, separation of powers beats federalism. Not always, but here, where the separation of powers is a matter of federal constitutional law, and the federalism interests are only policy concerns.

The dissenting opinion is written by Justice Kennedy and joined by Justices Thomas, Alito, and Sotomayor:

The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.”...

The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. 

Roberts's opinion acknowledges all that, but it's simply policy analysis, and federal standing doctrine has — for a long time — rejected arguments that come in the form of if these plaintiffs can't sue, an important legal issue cannot be raised.

I'm particularly unsympathetic to this argument in the context of needing to defend the results of the initiative process. Long ago, the Supreme Court had a case challenging the initiative process as a violation of the Article IV guarantee of a "Republican Form of Government" to every state. In that case, Pacific States Telephone & Telegraph v. Oregon (1911), the Court said it could not reach the substantive merits of the question because of the so-called "political question" doctrine — which, like standing, is a justiciability doctrine about the power of the federal courts.

It would be ironic if reverence for the initiative leveraged these plaintiffs past the normal limits on judicial power, since it was a limit on judicial power that prevented us from ever finding out whether lawmaking by initiative — rather than in a deliberative body of elected representatives — is unconstitutional.

Justice Kennedy ends his dissenting opinion saying:

The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. 

That's interesting political philosophy about democracy, but the people also made the federal Constitution, which is superior to state law, and which has that guarantee of a republican form of government. So let's not get too sentimental about direct democracy. If we want to get back to first principles, let's talk about republicanism.

(Here's Erwin Chemerinsky's article "Why Cases Under the Guarantee Clause Should Be Justiciable," which was part of a symposium at the University of Colorado Law School in 1994, back when there was a challenge to an initiative in Colorado that barred laws protecting gay people from discrimination. I was there too and wrote a response to Prof. Chemerinsky — here's my "Time for the Federal Courts to Enforce the Guarantee Clause?" — saying that if the Supreme Court felt motivated enough about this challenge, before it would change the justiability law about the Guarantee Clause, it would find the right it needed in the Equal Protection Clause. And that, by the way, is exactly what the Court proceeded to do, in Romer v. Evans — a case written by, of all people, Justice Kennedy.)

"There is disagreement about whether Grutter was consistent with the principles of equal protection.... But the parties here do not ask the Court to revisit that aspect of Grutter’s holding."

The decorous Justice Kennedy, writing for the majority in today's opinion in Fisher v. University of Texas, refraining even from saying the word "overrule."

Revisit... as if we'll be paying a social call.

ADDED: Here's Justice Breyer at oral argument, nailing Fisher's lawyer down that he's not asking to overrule Grutter:




Later, when Fisher's lawyer said "I think you can fashion a result in this case which may or may not have to, quote, 'overrule' Grutter," Justice Sotomayor came out with the memorable line: "So you don't want to overrule Grutter, you just want to gut it":



So did the Court gut Grutter today? No, of course, not. That sounds so brutal. But it laid Grutter out on the carving board and advised the Court of Appeals to sharpen the knives.

ALSO: I'm rereading my own notes from my spring Conlaw2 class, when I taught Grutter along with the oral argument in Fisher and I find this, referring to Justice O'Connor's opinion in Grutter:

Is she damaging the SS test by applying it with deference and not attending to the loose fit between purported goal and policy adopted? (How can you gut it if it lacked guts?)

"The National Voter Registration Act of 1993, allows voters to register using a federal form that asks, 'Are you a citizen of the United States?'"

"Prospective voters must check a box for yes or no, and they must sign the form, swearing under the penalty of perjury that they are citizens. The state law, by contrast, required prospective voters to prove that they were citizens by providing copies of or information concerning various documents, including birth certificates, passports, naturalization papers or driver’s licenses, that are available only to people who are in the state lawfully."

The Supreme Court, 7-2, said the federal law preempted the state law, Adam Liptak explains:

Much of Justice Scalia’s majority opinion concerned the meaning of the phrase “accept and use.” Arizona officials argued that they do accept and use the form, but also require additional information. An airline may accept and use e-tickets, they said, but also require identification....

In the decision on Monday, Justice Scalia said the phrase “accept and use,” when understood in context, meant that the federal form had to be accepted as sufficient.  

Here's the opinion,  Arizona v. Inter Tribal Council. I see that Justice Scalia, writing for the majority, considered using a presumption against preemption that "rests on an assumption... that 'Congress does not exercise lightly' the 'extraordinary power' to 'legislate in areas traditionally regulated by the States.'" (The internal quotes go to Gregory v. Ashcroft, a 1991 opinion that resolved an ambiguity in the federal Age Discrimination in Employment Act to preserve state laws that force judges into retirement at a specified age.)

In the Arizona case, Scalia said that the presumption doesn't apply because Congress enacted the law under the Elections Clause. (Art. I, §4, cl. 1: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.”)

Justice Kennedy, concurring, rejected the idea of "a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised." It's still an area of traditional state regulation, and it would make more sense to question the presumption — he says, citing an old Scalia concurrence that did just that — than to minimize the state's concern, given that they are acting in "their own historic role in the conduct of elections." But Kennedy concurs because there's no ambiguity in the National Voter Registration Act that the presumption would resolve. The preemption is clear.

Only 2 justices dissented. Justice Thomas said the Constitution gives the states the exclusive authority over voter qualifications and over whether those qualifications are met, so he adopted the narrower interpretation of the NVRA to avoid an unnecessary constitutional question. Justice Alito said that the Court got it "exactly backwards" when it rejected the presumption against preemption because of the Elections Clause. The Elections Clause manifests a reservation of "default responsibility" to the states, so Congress should have to "speak clearly" to displace the states as they carry out this function the Constitution explicitly assigned to them.

Alito took what had been Sandra Day O'Connor's seat on the court. As Liptak notes, Justice O'Connor was one of the 3 judges who initially heard the case in the 9th Circuit, and she was sitting in the courtroom today as the opinion was announced.

Supreme Court live-blog.

Here. Possible excitement today.

UPDATE 1: An opinion in Salinas v. Texas — PDF — which is about the right not to incriminate oneself ("prosecutors can comment on the silence of an accused who has not yet been arrested").

UPDATE 2: Alleyene: Justice Thomas writes the opinion holding that "Any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." Joining him are Ginsburg, Breyer, Sotomayor, and Kagan. A 5-4 decision with Thomas and the liberals. Roberts, Scalia, Kennedy, and Alito dissent. PDF.

UPDATE 3: A Kennedy opinion, but not the long-awaited Fisher (the affirmative action case). This is Maracich v. Spears, the Driver's Privacy Protection Act case. Another 5-4 decision. "An attorney's solicitation of clients is not a permissible purpose covered by the DPPA's litigation exception." PDF.

UPDATE 4: Scalia writes for the majority in Arizona v. Inter Tribal Council: "Arizona's proof of citizenship requirement is preempted by the federal law requiring that states use the federal voter registration form." Only 2 dissenters: Thomas and Alito. PDF.

UPDATE 5: And that's it for today. There will be more opinions on Thursday.

Which of the opinions are you most interested in hearing me say something about?
	Salinas v. Texas
	Alleyene
	Maracich v. Spears
	Arizona v. Inter Tribal Council
pollcode.com free polls

Innocence Project founders not happy with the way the Supreme Court cited their book in the DNA case.

Adam Liptak explains.

... Justice Kennedy’s brief quotation from “Actual Innocence” [was not] especially punctilious. Here is how the justice rendered it, including his brackets and ellipses: “[P]rompt [DNA] testing ... would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of ... innocent people.”

Those first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making. The original passage concerned evidence collected at crime scenes, not from people who might be connected to it....

The omission of two words with the second set of dots is easier to understand. The authors had written that testing could prevent “the grotesque detention of thousands of innocent people.” Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings....

And it's easy to understand the pique of the Innocence Project folks who apparently do not like seeing their names connected to an opinion they loathe, but did Kennedy do anything wrong here?

"Punctilious" — to quote the (unlinkable) OED — means "Strictly observant of or insistent on fine points of procedure, etiquette, or conduct; extremely or excessively particular or correct. Also: characterized by such scrupulous attention to detail or formality." I'll bet Liptak thought a lot about that word. Note how he toned it down with "not especially." So Kennedy was strictly correct, but not all that strictly correct.

"Mississippi lawmakers have embarked on a controversial campaign to discourage older men from having sex with teenagers."

"Starting in July, doctors and midwives in the state will be required by law to collect samples of umbilical cord blood from babies born to some women under the age of 16. Officials will analyze the samples and try to identify the fathers through matches in the state's DNA database."

NPR reports today... the same day we hear the Supreme Court's ruling that allows police to routinely collect DNA from anyone who's been arrested.

... Matthew Steffey, a constitutional law professor at the Mississippi College law school in Jackson, said the measure could raise a "hornet's nest" of legal problems. "It is not at all clear that the legislature can deputize health care workers to collect evidence without a warrant," he said.

Here's a news report on today's Supreme Court case:

The police may take DNA samples from people arrested in connection with serious crimes, the Supreme Court ruled on Monday in a 5-to-4 decision.

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes....

Justice Kennedy wrote in the majority opinion that the swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable. It was, he said, given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

To identify the persons and put tham into the machine that will match them up with unsolved crimes where DNA has been collected, like all those cases where underage women have given birth.

Shouldn't the states also be collecting some clumps of cells from all the various abortions performed on underaged women? 

The Fisher v. University of Texas affirmative action case is now the only undecided case argued in October.

SCOTUSblog tells us, after live-blogging the announcement of Moncrieffe v. Holder this morning. Moncrieffe, a case about the meaning of "aggravated felony" under the immigration law, was written by Justice Sotomayor, and that makes it extremely likely that Justice Kennedy is writing the hotly anticipated Fisher case:

[T]he Court tries very hard to distribute the authorship of majority opinions evenly not just over the course of the Term, but also within a sitting (the two-week periods from October through April when the Court hears oral argument). So going into today, Justices Kennedy and Sotomayor were the only Justices without majority opinions in October.... Now he's the only one without an October opinion, which leads to the assumption that he is writing Fisher. 

Does this help predict the outcome of the case? Here's my effort, from last October, to read Justice Kennedy at the oral argument. Remember, Texas has a very odd kind of affirmative action, adding an individualized approach, with race as a plus factor, after a facially neutral program that admits the top 10% of students from every Texas high school. At oral argument, Kennedy focused on the detail that the additional race-based selection was done to bring in more privileged black and Hispanic students, because the 10% program tended to admit underprivileged blacks and Hispanics (which reinforced a stereotype about black and Hispanic people). I said at the time (referring to the Court's most recent affirmative action case, Grutter):

So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint." ...

I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional.... All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.

Kennedy seemed to have trouble seeing the sense of that at oral argument. He said "So what you're saying is that what counts is race above all," which is missing the point. I'm sure he ultimately understood the point, but I think we saw — in real time — that the point isn't intuitively appealing to him.

That said, Fisher could narrowly reject the odd UT program and leave the more typical Grutter-style affirmative action alone. But Fisher presents an opportunity to overturn Grutter, and Kennedy dissented in Grutter, which was a 5-4 decision with Justice O'Connor casting the deciding vote. O'Connor's successor, Justice Alito was instrumental at oral argument — as I said at the time — in extracting that point about privileged minority applicants receiving the advantage.

So I'll make a rash prediction: a narrow decision, determined by Kennedy and Alito (and maybe Roberts), striking down only the Texas program. Scalia and Thomas concur, complaining that Grutter should have been overruled. Everyone else dissents.

A fractured opinion about when the police can draw blood for a warrant after a drunk-driving arrest.

It's hard to know where to start in this new opinion, Missouri v. McNeely:

Sotomayor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Scalia, Kennedy, Ginsburg, and Kagan, JJ., joined, and an opinion with respect to Parts II–C and III, in which Scalia, Ginsburg, and Kagan, JJ., joined. Kennedy, J., filed an opinion concurring in part. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Breyer and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.

I start with Justice Thomas, who says the natural dissipation of alcohol in the blood is always the "exigent circumstance" that avoids the warrant requirement.  He gives a clear rule.


The Chief Justice writes:

I have no quarrel with the Court’s “totality of the circumstances” approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

He would say that the natural dissipation of alcohol in the blood is an exigent circumstance unless there is time to get a warrant. He wants something closer to a rule.  Kennedy, who is the one who deprives Sotomayor of a majority in some parts of her opinion, wants less of a rule from the Court, so that states and local governments can work out their own rules.

And here's Sotomayor:

The State’s proposed per se rule... fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple....

Basically, using the telephone, it can be made very easy to get these warrants. You wouldn't want to remove the incentive on the police to set up these procedures and to make them efficient and thus to avoid the destruction-of-evidence problem.

The Supreme Court has many options in the Prop 8 case.

How many? Marty Lederman says he'd originally thought there were 5: 1. no standing, 2. uphold Prop 8 on the merits, 3. reject Prop 8 in a way that relates only to California, 4. reject Prop 8 in a way that would also require gay marriage in the 8 states that have civil unions for gay couples, and 5. find a constitutional right to same-sex marriage that would apply throughout the country. Now, he sees 2 more options: 6. dismiss the petition (decide it was a mistake to take the case at all), and 7. vacate  and remand for reconsideration in light of whatever it does in the DOMA case.

Lederman thinks you can't tell from the oral argument, in which it seemed that at least some of the Justices were struggling to try to figure out what to do, but he thinks 2, 3, 5, and 7 are unlikely and 6 is also pretty unlikely.

So what about 1 (standing)?

... Justice Kennedy, expressed concern that if the Court were to hold that the Proposition 8 proponents lack Article III standing because they are not agents of the state of California... such a ruling might invite executive officials in California to effectively “thwart the initiative process” (Justice Kennedy’s words), simply by refusing to appeal lower court rulings declaring that such initiatives are invalid....

And 4 (reaching the merits and covering 8 states)?

To be sure, Justice Kennedy stated that it would be “very odd” for California to in effect be “penalized” for being “more open to protecting same-sex couples than almost any State in the Union.”  To like effect, Justice Sotomayor said that there would be an “irony” if “States that do more [for same-sex couples] have less rights.”...

But that objection doesn’t quite capture the fundamental nature of the eight-state argument—namely, that it’s an underinclusiveness argument of the sort the Court often invokes to explain why a state’s defense of a law is inadequate. 

Actually, everything seems unlikely and unsatisfying... and yet there will be a decision. I note that there could be an outcome without any rationale commanding a majority. That should be considered the 8th possibility. The 8th option for Prop 8.

"The swing vote is in (so stop kissing up)."

Writes Dana Milbank, in a slight twist of the usual lazy journalist approach to covering the Supreme Court: Inform readers that Anthony Kennedy is the swing vote, pull his statements/questions out the transcript, and riff about them — What's he thinking? Who knows? Could go either way — and let him know — subtly or unsubtly — how much you'll love him if he does what you want and how he risks his social and historical standing if he does not.

There's an issue of "standing" in both same-sex marriage cases. Standing — the legal doctrine — has to do with whether the party seeking access to the judicial process has a concrete and particularized injury that is fairly traceable to the opposing party and likely to be redressed if he happens to prevail on the legal issue. But the real issue of standing — these journalists make me think — is Justice Kennedy's standing within the elite crowd of politics, academia, and journalism.

Milbank's riff is: He can already tell. 

Early in the oral argument [in Windsor], the conservatives — Antonin Scalia, Samuel Alito and Chief Justice John Roberts (a silent Clarence Thomas can be assumed to be their tacit tagalong) — explored the idea that the case might be disposed of on the technical grounds that no injury had been proved, a technique that would avoid a ruling calling DOMA unconstitutional.

But Kennedy was having none of it. “It seems to me there’s injury here,” he said.

The swing vote had swung....

Kennedy left little doubt about what he thinks the answer is. When Solicitor General Donald Verrilli argued that DOMA violated the notion of equal protection under the law, Kennedy cut him off. “You are insisting that we get to a very fundamental question about equal protection,” he said, “but we don’t do that unless we assume the law is valid otherwise to begin with.”

And if Kennedy doesn’t assume something, nobody can assume it.

The usual sucking up is not needed.

It's embarrassing to the Court that it is talked about this way, and — ironically — it makes it harder for the Court to find new/bigger individual rights that ordinary people can believe really came out of a dutiful judicial analysis of the law. That unwittingly bolsters the argument for leaving this issue in the arena of majoritarian politics.

"5 Justices Seem Skeptical of Ban on Benefits to Gay Spouses."

The 2 hours of oral argument in the DOMA case have ended. Adam Liptak summarizes:

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said....

It should please conservatives to see an opinion based on the lack of an enumerated federal power. Unlike yesterday's Prop 8 case, the legal problem isn't only about constitutional rights. There's a question of congressional power (which should have been addressed 15+ years ago).

Chief Justice John G. Roberts Jr. and some of the other conservative justices expressed irritation that the case was before them at all because an appeals court threw out the law’s definition of marriage and the Obama administration agreed with that ruling but appealed it anyway. President Obama has declared that the Defense of Marriage Act is unconstitutional and refuses to defend it in court, though the government is continuing to enforce it until the Supreme Court offers a judgment.

Chief Justice Roberts called that a contradiction by the president. “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.

Ha ha. That's what I said in my post earlier this morning: "They're lying back waiting for the Court to do the difficult work.... It might be that the Court shouldn't rescue the administration from its politically uncomfortable position." If the matter belongs in the political area, let them sit in their own mess.

AND:

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
— SCOTUSblog (@SCOTUSblog) March 27, 2013

ALSO: If the 4 liberals "see... gay rights" and the 5th vote says there's no enumerated power, there can be a result without an impact on what states can do. The federal government would have to start recognizing same-sex marriages from the states where they are legal, and there wouldn't be any rights-based doctrine applicable to the states. There would be an open question about the part of DOMA that authorizes states to deny recognition to ssms from states that record ssms. The argument for an enumerated power there is somewhat different. If that part of DOMA were stricken down too, there is still an argument that the states could deny recognition to ssms performed elsewhere. In fact, it's an argument DOMA tried to resolve. So somewhere down the line, it's possible that ssm would apply everywhere as long as couples travel to a state that permits them, which would be very easy to do.

The phrase "voice of these children" seems to reveal the deeper thoughts and intuitions moving Justice Kennedy.

At today's oral argument in the Prop 8 same-sex marriage case.

Justice Kagan pushed the lawyer Charles J. Cooper to give some reason for excluding same-sex couples from marriage. Cooper seems to be trying to answer, saying that it's "reasonable" to think that "redefining marriage… as a genderless institution" could undermine marriage, making it less effective as a way to enforce "procreative responsibility." Seemingly unsatisfied, Justice Kennedy breaks in to say: "you should have to address Justice Kagan's question."

Cooper talks about how "it is impossible for anyone to foresee the future accurately enough to know exactly what [the] real-world consequences would be" if "this age-old bedrock social institution should be fundamentally redefined." This seems to be the interest in not changing anything until you have pretty good evidence that the change will be for the better. Justice Scalia tries to help, saying that if gay couples were married, there might also be a requirement to permit adoption. Even though California already permits same-sex couples to adopt, so how can California rely on the idea that it's bad for children. Scalia says that the requirement might apply to other states, and there is "no scientific answer" to the question whether having same-sex parents has a “deleterious effect" on children.

At this point, Justice Kennedy says this — boldface added:

I think... that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

The "Red Brief" is the respondents' brief under the Supreme Court's document preparation rules, but that's not the source of the "voice of the children" phrase. Searching the briefs, I found it in the amicus brief of the Family Equality Council:

The voices of children raised by same-sex parents — those who live every day within the family structure at the heart of these lawsuits — are too often unheard in the debates about same-sex couples and marriage. Their stories are too often missing from discussions of "traditional" families or "family values," and their personal experiences too often discounted as irrelevant. Although those who oppose marriage for same-sex couples frequently make assumptions about the quality of the children's family lives, the children themselves are rarely asked to explain what they actually experience.

This habitual omission is unfortunate because these children are uniquely qualified to speak about how their families look, feel, and function and how the availability — or unavailability — of marriage as an option for their parents colors their daily lives. These children are also among those persons most directly affected by both the Defense of Marriage Act (DOMA) and Proposition 8.

The voices of lesbian, gay, bisexual, and transgender (LGBT) youth are also too frequently disregarded in these debates. The laws banning marriage for same-sex couples or limiting federal recognition of such marriages leave these young people to question their own dignity and self-worth. This stigmatization has a profoundly negative impact on their self-esteem, sense of purpose, and well-being that threatens to burden them for the rest of their lives.

This brief presents the voices of these children.

If you want to know where Justice Kennedy's heart is. I think it's here.

Cooper stressed the lack of "data" about whether there's "any incremental beneficial effect” to the children in calling it marriage as opposed to just civil unions, but that's only saying there might not be a reason to include same-sex couples. Kagan's question was very specific: "So you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them?" Kennedy demanded an answer to that question, and though he acknowledged the lack of information, he leaped from that to the injury to the voice of the children. Obviously, he meant there's an injury to the children and we need to listen to the voice of the children. There was something odd about that leap and the way it was phrased that makes it feel revelatory of the deeper thoughts and intuitions moving Justice Kennedy.

"Breaking: key vote Kennedy VERY uncomfortable striking down #prop8."

"Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling."

There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time

SCOTUSblog tweets from the oral argument.

Note the significance of "Would leave in place 9th Cir pro-#ssm ruling." Prop 8 will still be stricken down, because that's what the 9th Circuit decided. I want to see the transcript (and hear the oral argument) before reacting too much to these characterizations.

So Kennedy performed the Theater of the Very Uncomfortable. That could set the stage for exercising the very painful duty of pronouncing a law a nullity. It's supposed to hurt! It's not what we want, but what we must do.

(Calling judicial review a "painful duty" has a long pedigree.)

MORE: Here, from SCOTUSblog's Tom Goldstein:

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8....

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn't mean he won't join them in the end.

I'll say more when I've heard the argument myself.