At the Washington Post, pressure on Justices Ginsburg and Breyer to retire.

"There’s absolutely no question about it; if they want to secure the principles they have fought for during their careers, the best thing both of these senior liberal justices can do is to retire right now...."

If Republicans happen to gain six or more Senate seats in 2014, and with them a Senate majority, it’s very likely they will simply bottle up most judicial nominations in committee, not even allowing floor votes.... That’s after the 2014 elections. In 2016, in addition to another shot at Senate control, Republicans certainly could win back the White House....

So... panic mode along with making it really really obvious that Supreme Court Justices are partisan ideologues? Great set-up for the 2014 elections that you're so afraid your side will lose.

"Centrists Should Mourn the Demise of the Filibuster: Only the extremists win—and in the end, mostly the Republicans."

A Slate headline, quoted in its entirety at Instapundit, as if he's not seeing the snark.

To see the snark, examine the logic

1. After the filibuster, only the extremists will win.

2. Most of the winners will be Republicans.

3. [Unstated.] Most of the extremists are Republicans. 

What counts as "extremism"? In this context, it has to do with how we think about judges. (And executive nominees, but I'll leave them to the side for simplicity's sake.) The "extreme" should be understood as the more ideologically slanted or threateningly powerful individuals that the President would otherwise have refrained from nominating. But even with the minority party disabled by the inability to filibuster, there are political constraints.

Obama can't just nominate, say, Bill Ayers.
He won't want the criticism, and there will be pressures on members of his own party to say no. The old game of letting the minority party do the dirty work has changed. The other party will still do what it can to trash the reputation of the nominee, but the President's own party will have to vote that nominee down or take the political heat for voting for this awful character.

I suspect that the political check will be more of a constraint on Democrats, because it seems that American voters perceive conservative judicial ideology as more conventional, proper, and neutral than liberal judicial ideology. And this is essentially the insight in the Slate article (which is written by Eric Posner). And by essentially, I mean subtract the subterfuge in the part I've boldfaced:

Next time Republicans control the presidency and the Senate, they will appoint ideologically extreme judges. True, Democrats could cancel out this effect by appointing extremely liberal judges when they are in power, but recent history suggests that Democrats do not care as much as the Republicans about appointing ideologically extreme judges. Unless this changes, picture a federal appellate bench composed of numerous Antonin Scalias and Clarence Thomases, not fully offset by Elena Kagans and Stephen Breyers.

Let me restate the boldfaced part to say what I think is true:  Democrats know that the vigorous left-liberals they'd like to see on the bench would be viewed by the American people as ideologically extreme and unsuited for judicial work.

The reason the Republicans seem to get away with leaning further toward conservatism than Democrats can lean toward liberalism is that conservatism better comports with the people's idea of the role of the judiciary.

Removal of the filibuster helps conservatives not because they are more "extremist" than Republicans, but because the political check on nominating strong judges operates more forcibly on liberals. 

"Splitting 5 to 4, the Supreme Court... refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state."

Lyle Denniston explains the issues and the votes:

The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.


The majority specifically included Justices Antonin Scalia, who wrote separately in a concurring opinion joined by Justices Samuel A. Alito, Jr., and Clarence Thomas.  But Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy presumably voted with those three, because it would have taken five votes to act definitively on the plea by doctors and clinics when there were four Justices who wanted to block the law....

Justice Stephen G. Breyer wrote for the four dissenters, including Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Here's the opinion PDF.

Scalia, writing for the majority, says that the Court can only vacate the stay if the Court of Appeals clearly erred in staying the district court's injunction. The Court of Appeals had to consider whether the party seeking the stay is likely to succeed on the merits, whether that party will be irreparably injured without the stay, whether others would be injured by a stay, and the public interest. In Scalia's view, you can't find clear error in the way the Court of Appeals analyzed those factors.

Breyer looks at the practical reality here. Either Texas must wait to start enforcing its new law (which might be constitutional), or doctors are going to have to close down clinics right away to meet the new requirement (which might be unconstitutional). Whatever proper ends Texas might have in its requirement that doctors have hospital admitting privileges, the harm in waiting a while for that to apply is much less than all of the change to the status quo.

Keep in mind that deterring women from having abortions is not a proper end under the case law. If that's what the law is really doing, counts toward finding an "undue burden," which is what would make the law unconstitutional.  The law needs to be justified as an improvement in health care, and so the injury that Scalia and Breyer are talking about is only the loss of improved care pending the litigation. On the other side of injury equation, there are all those clinics that must close, restricting access to abortion.

Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:

A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.

As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Just some nutty lady's bumbling parry in a cat fight?

Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law based on the chemical weapons ban treaty that is signed by all but four of the world’s nations.

The problem here is not the unseriousness of attempted murder. It's that murder is traditionally left to the states, and the federal government is — at least theoretically — a government of limited, enumerated powers. With this important constitutional principle at stake, Bond is represented by the great ex-Solicitor General Paul Clement:

Clement...  said that if the law implementing the treaty “really does reach every malicious use of chemicals anywhere in the nation, as the government insists,” then it violates the “bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct” that does not have distinctly federal concern....

[Justice Elena Kagan] said the treaty gave Congress the power to pass implementing legislation. “So you have to find a constraint on the treaty power. Where does it come from?” she demanded.

Justice Sonia Sotomayor worried about the courts hamstringing efforts to deal with terrorism. 

Writing tip for Barnes: If you've already got "ham-handed," don't use "hamstringing." Too much ham.

“It would be deeply ironic that we have expended so much energy criticizing Syria, when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional,” she said.

Now, we're getting to the real meat of it. The government was represented by the current Solicitor General, Donald B. Verrilli Jr.

Chief Justice John G. Roberts Jr., who posed no questions to Clement, asked Verrilli if it would be possible for the president to join a treaty that gives national governments all powers and for Congress then to put in place such legislation.

When Verrilli said that would be unimaginable, Justice Anthony M. Kennedy shot back: “It also seems unimaginable that you would bring this prosecution.”

That led the conservative justices — plus Justice Stephen G. Breyer, who usually sides with the liberals — to unleash a barrage of hypotheticals of what could be prosecuted under the broad law, which covers chemicals that could harm humans or animals: a wheelbarrow full of kerosene; a poisoned potato given to a horse; the performance-enhancing drugs allegedly used by cyclist Lance Armstrong.

“Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked Verrilli, drawing laughter from the court’s spectators. He explained that chocolate Halloween candy is “poison to dogs, so it’s a toxic chemical” under the act.

Verrilli chafed, saying, “This is serious business.”

Yes, it truly is. It's easy to see Kennedy's point: The federal government shouldn't have chosen to prosecute this case. But it did, and now what? It's easy to think: The central government needs ample power to do everything that might need to be done at a national level and it should refrain from using that power to deal with matters that are better left to the states.

But it doesn't refrain.

When Nina Totenberg is calling affirmative action "racial preferences," affirmative action is in trouble.

Here's her report — at the NPR website — on yesterday's oral argument in a case she doesn't mention the name of but which I happen to know is Schuette v. Coalition to Defend Affirmative Action. This is the case where the people of Michigan — after the Supreme Court approved of the University of Michigan Law School's use of race in admissions — amended their constitution to require that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." Another way to put that is to say: The state constitution bans affirmative action.

Under U.S. Supreme Court case law, affirmative action in university admissions does not violate the Equal Protection Clause of the U.S. Constitution when it is done in a way that is narrowly tailored to the compelling interest in the benefits of classroom diversity. In Schuette, the question is not whether the university can choose not to have a policy of affirmative action, but whether the policy against affirmative action can be put in the state constitution — where, as a political matter, it becomes difficult to change. The idea is: 1. The political process has been restructured along racial lines, and 2. That restructuring violates Equal Protection.

It's a difficult argument to make, since it sounds like choosing equality imposes inequality, but there are a couple old cases upon which to build. I just want to focus here on Totenberg's (perhaps) careless adoption of the state's characterization of affirmative action as "racial preferences." Boldface added:

Students seeking to enact or get rid of other preferences can lobby the regents, [the ACLU's Mark] Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.

Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?

"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"

So there's Justice Breyer saying it too. Perhaps Totenberg picked up the cue from him. It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don't want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university's practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

Another day of Supreme Court excitement.

The place to hang out is SCOTUSblog, which live-blogs it, or here, where I quote, paraphrase, and snark, and you can comment.

UPDATE 1: Koontz, written by Alito. "The government's demand for property from a land use permit applicant must satisfy the Nolan and Dolan requirements even when it denies the permit." 5-4 in the most predictable 5-4 pattern.

UPDATE 2: Next, a case we talked about here, Adoptive Couple v. Baby Girl. This, too, is written by Justice Alito. "Assuming for the sake of argument that the biological father is a parent under the Indian Child Welfare Act, neither of the two sections at issue bars the termination of his parental rights." Thomas and Breyer have concurring opinions. Scalia has a dissenting opinion, for himself alone. Sotomayor also dissents, with Ginsburg and Kagan. And Scalia joins the Sotomayor dissent in part.

UPDATE 3: Here's the PDF for Adoptive Couple. To jump to what Scalia says:

The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

UPDATE 4: Huge: "Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance." This is Shelby County, written by Chief Justice Roberts. "Thomas concurs. Ginsburg dissents, joined by Breyer Sotomayor, and Kagan.... Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory." [ADDED: It's 5-4, again, the typical conservative/liberal split, and Thomas — along with Scalia, Kennedy, and Alito — joins the Chief.]

UPDATE 5: Here's my discussion of the oral argument from last March: "[C]ongressional support for reauthorizing the act has increased over the years, even though the need for it has lessened.... Scalia is saying the Court needs to act because there is a dysfunction in the political process that keeps Congress from looking rationally at the actual need for the remedy that made so much sense back in 1965. Breyer's response is: Congress is still in the middle of doing what was once badly needed, it's not obvious that the endpoint has been reached, and therefore it's not time yet for the Court to act." Apparently, the majority decided it was time.

UPDATE 6: That's it — and that's plenty! — for today. Here's the PDF of the opinion in Shelby County. I'll start a new post for that case, and I will also try to get to Adoptive Couple before long. 

"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?)

Justice Breyer breaks his proximal humerus in a biking accident...

... and undergoes shoulder replacement.

It was the third biking accident for the justice, who two years ago broke his right collarbone after a fall near his home in Cambridge, Mass. He suffered more serious injuries in 1993 when he was hit by a car while biking across Harvard Square.

"No one would be in trouble over this scandal if only David Corn had the news judgment to recognize a nonstory."

Says James Taranto. The distinction between this bland chat about things Ashley Judd wrote in her memoir is nothing like the explosive conversation in Bartnicki v. Vopper, the Supreme Court case that said "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."

[M]embers of the Pennsylvania State Education Association discussed violently retaliating against school board members who were their adversaries in collective-bargaining negotiations. A quote from the tape: "If they're not gonna move for three percent, we're gonna have to go to their, their homes.... To blow off their front porches, we'll have to do some work on some of those guys...."

In Bartnicki, Justice Stevens (joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer) says there's "a conflict between interests of the highest order — on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech." But: "The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it." And: "It would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party." 

The majority acknowledges the interest in privacy, but says it doesn't extend to matters of "public or general interest." Taranto opines that it's not so clear-cut that the McConnell campaign's brainstorming about attacking Judd is really a matter of "public interest" since it wasn't as interesting as the "blow off their front porches" bombshell in Bartnicki. Taranto points to the concurring opinion by Breyer (joined by O'Connor). That says:

[T]he Court does not create a "public interest" exception that swallows up the statutes' privacy-protecting general rule. Rather, it finds constitutional protection for publication of intercepted information of a special kind. Here, the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high...

So Breyer claims to see a balancing test in the majority's opinion (which he joins). He also wants it to be possible for "legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy." Meanwhile, in the dissenting opinion, Chief Justice Rehnquest (joined by Justices Scalia and Thomas) frets about advancing technology and "the right to be free from surreptitious eavesdropping" (which, they say, isn't going to be deterred if it's possible to "anonymously launder the interception through a third party and thereby avoid detection").

It's 12 years later, and technology has advanced much further, and after this Corn incident, every campaign should expect any and all private sessions to hit the internet. Maybe Taranto thinks you can piece together a limit on Bartnicki from the Breyer 2 and the Rehnquist 3, but I wouldn't count on it. Journalists are likely to take risks. Once there's audio, some journalist will always be the Corn.

And what difference does it make now? The real advancement in technology is that the audio can be dumped directly onto the internet. Today's eavesdroppers don't need a journalist to grant him a platform. So what is gained by penalizing the Corns of this world? I'd say we're better off getting some kind of journalistic filter, even if that filter is politically biased. There are biases all the way around in journalism. Even if we're not better off, we gain nothing worth intimidating journalists about. This material is breaking loose, one way or another.

Justice Breyer makes the clearest argument for why there is standing in the DOMA case.

And Chief Justice Roberts takes a different tack. This part is about the bizarre situation in which President Obama and Eric Holder have decided that DOMA is unconstitutional, and they won't defend it in the Supreme Court, but they intend to continue applying it. As Roberts puts it: why doesn't the President "have the courage of his convictions" and stop enforcing DOMA — "rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice"?

"What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?"

A perceptive question by Justice Breyer at today's oral argument in the Prop 8 case, asked of Charles J. Cooper, who had framed the state's interest in terms of "responsible procreation." It's certainly true that same-sex couples and opposite-sex couples are different in that only sex between a man and a woman can result in children, but what's the harm in letting some couples who can't reproduce get married?

Cooper says:

The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples….

Justice Kagan presses him: What about older heterosexual couples over the age of 55? Their sexual intercourse isn't going to produce children. Letting them marry when they can't procreate ought to present the same problem of centering marriage on adult "needs and desires" instead of on children.

Cooper says:

[S]ociety's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy... advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that...

The fertile party? Yes: The man can still reproduce, just not with this woman.

The marital norm... [is] designed... to make it less likely that either party to that — to that marriage will engage in irresponsible procreative conduct outside of that marriage.... That's... the marital norm. Society has an interest in seeing a 55-year-old couple that is -- just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment.... So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.

Got that? In this view, marriage is about children and not adult desire because it is a device to rein in male desire, to keep men from fathering children they aren't going to raise. It's not that marriage can keep that bad thing from happening. It just makes it less likely, because the marriage norm is fidelity.

Obviously, fornication and adultery go on despite this marriage norm, and it's hard to see why letting gay people marry would mess up the norm. I'm trying to picture this man at the heart of Cooper's vision of society: He's true to his wife, because he's gotten the message that's the norm, but if some gay people can marry, then he's going to start cheating, knocking up some other woman, and it's because of this guy that gay people can be excluded from marriage?

What a nutty set of things we're asked to believe! Who the hell is this stereotypical married man, constrained by what other people are forbidden to do? And why should his ridiculous, tenuous connection to norms carry the day? And how can obsessing over what makes him tick work to keep marriage focused on the raising of children and not on the emotional needs and desires of adults? It seems to be all about the needs and desires of adults — really ridiculous heterosexual male adults.

Who are these people?!

Listen to the oral argument in the Voting Rights Act case.

Audio here. There's also a summary there of what the case is about, basically whether Congress has the power to continue to require some states, but not others, to get approval from the federal government before they change any election laws. The states are covered based on a formula that looks at how things were in 1972.

I was especially impressed by something Justice Breyer said at 65:42. Transcript (PDF):

If you draw a red line around the States that are in, at least some of those States have a better record than some of the States that are out. So in 1965, well, we have history. We have 200 years or perhaps of slavery. We have 80 years or so of legal segregation. We have had 41 years of this statute. And this statute has helped, a lot. So therefore Congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go.

Now the question is, is it rational to do that? And people could differ on that. And one thing to say is, of course this is aimed at States. What do you think the Civil War was about? Of course it was aimed at treating some States differently than others. And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out. And the question, I think, is has it run out now?

And now you tell me when does it run out? What is the standard for when it runs out? Never? That's something you have heard people worried about. Does it never run out? Or does it run out, but not yet?

Or do we have a clear case where at least it doesn't run out now?

That's a sharp summary to the question and it's fair, though it leans toward upholding what Congress did. I think Breyer framed his question around something Justice Scalia said earlier — which I think is what "you have heard people worried about" refers to. At 50:30 in the audio, Scalia notes that the Court generally leaves "racial questions such as this one... to Congress." But congressional support for reauthorizing the act has increased over the years, even though the need for it has lessened.

[That increased congressional support] is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.... It's -- it's a concern that this is not the kind of a question you can leave to Congress.

Scalia is saying the Court needs to act because there is a dysfunction in the political process that keeps Congress from looking rationally at the actual need for the remedy that made so much sense back in 1965. Breyer's response is: Congress is still in the middle of doing what was once badly needed, it's not obvious that the endpoint has been reached, and therefore it's not time yet for the Court to act.

"[A] majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act..."

Writes Tom Goldstein after the oral argument in the Supreme Court today:

The vote seems quite likely to be five to four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.

Adam Liptak recounts the "tough questioning... from the Supreme Court’s more conservative members":

Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”

The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.

“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”

I look forward to reading the transcript later today. The issue isn't whether there are still some racial inequities in voting procedures, but whether federal law can continue to treat some states differently from others based on a calculation using statistics from 1972.

ADDED: Here's the transcript (PDF). I'll extract some good parts when I can.