"Microaggression" — the word that died.

I've been working on the theory that the term "microaggression" briefly spiked to prominence and then utterly crashed with the story of the professor who was accused of "microaggression" for correcting spelling and grammar errors. I picked apart some details in the way that story was told here, and then I began to Google "microaggression" every day or so to see what was surfacing in the world of microaggression. It's an interesting label, possibly useful, clearly abusable, and I wanted to see where it would get put. But all that came up, again and again, was that spelling-and-grammar-correcting professor. Hence the theory that the word died.

But today's search turned up something new over at Buzzfeed: "21 Racial Microaggressions You Hear On A Daily Basis." A photographer named Kiyun got her friends to "write down an instance of racial microaggression they have faced," so this is a series of people racially microaggressed against, holding signs. This is a pretty good-humored project, and the young people who went along with the photographer's idea object mostly to dumb remarks ("What do you guys speak in Japan? Asian??"), excessively personal remarks, ("What does your hair look like today?") and — here's something to hearten the John Roberts' fans — lack of color-blindness ("What are you?").

You know there's a color-blind way to fight against microaggression: Etiquette!

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, according to Chief Justice Roberts, are you required to wear cowboy boots to a Supreme Court oral argument?

When you are representing the state of Texas.

ADDED: What this post is really about....

My aversion to discussing the strenuous blabbing everywhere out there about the "government shutdown."

"My amendment says basically that everybody including Justice Roberts — who seems to be such a fan of Obamacare — gets it too."

Said Rand Paul (not modeling orthodox notions of what judges are doing when they decide cases):

"See, right now, Justice Roberts is still continuing to have federal employee health insurance subsidized by the taxpayer.... And if he likes Obamacare so much, I’m going to give him an amendment that gives Obamacare to Justice Roberts."

If only judges had a personal interest in the outcome of their decisions...

"It would be terrible for our democracy … if one politician could directly solicit $3.6 million from a single donor."

"That is 70 times the median income for an American family. It would mean a tiny, tiny group of donors would wield unprecedented power and influence," says an election law expert from a liberal advocacy group, quoted by David Savage in an L.A. Times piece titled "Supreme Court may strike new blow to campaign funding laws/The Supreme Court, in a new campaign funding case, may lift a lid on the total the wealthy can give to all candidates and parties."

In recent [Supreme Court] opinions, [Chief Justice John] Roberts has said the government may not try to "level the playing field" between candidates or prevent well-funded candidates from using their financial advantage to dominate the airwaves. The only justification for limiting contributions, the court has said, is to prevent "corruption or the appearance of corruption."...

"This is a limit on how many candidates you support, not on how much you give them," said James Bopp Jr., an attorney for the Republican National Committee. He cites the case of McCutcheon, an Alabama man who gave a total of $33,000 to various Republican candidates for Congress last year and wanted to give $21,000 more. He was stopped by the legal limit on total contributions to candidates, which now stands at $48,600.

McCutcheon "holds firm convictions on the proper role of government" and "opposes numerous and ill-conceived and overreaching laws," he told the court, and he wants more "federal officeholders who share his beliefs."

"Classic Linda Greenhouse awfulness."

Opines Stephen Bainbridge:

First, there's the implicit claim that she is able to divine the inner workings of [Chief Justice] Roberts' decision making processes. She knows what's in his "head" and "heart," as if she were some psychic shrink....

Speculating about what's really going on behind the argle-bargle in the written opinions is something we must do to avoid falling for propaganda. I use the term "argle-bargle" to remind you of what Justice Scalia wrote in his dissenting opinion in the DOMA case, Windsor:

[T]he real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "'bare . . . desire to harm'" couples in same-sex marriages.

And that's just what Scalia feels is acceptable within the rigors of judicial opinion-writing. We must feel impelled to pull apart the judicial verbiage that we sometimes call the "decision" to try to see The Decision, which is to say, the mental processes that actually took place in the minds of the judges.

Of course, we can't really know. None of us, not even Linda Greenhouse, can divine the inner workings of anyone else's head. (Thank God! What a world this would be if we could!) But there is no more valuable inner working of your own head than to contemplate the inner workings of the heads of others. What fools we are if we take other people's words at face value! But — and here Professor Bainbridge is right — we are wrong if we present our speculation as the truth. If we posture as certain, those who don't like what we say can smack us down. You can't know that!

But I speculate that Linda Greenhouse — in the secret inner workings of the head that only she can access — knows her "The Real John Roberts Emerges" overstates what she knows about the inner workings of the mind of John Roberts. I presume that she has her reasons for writing like that. I presume, I don't know, but I could — if the inner workings of my mind cranked in this direction — write a blog post titled "The Real Linda Greenhouse Emerges." Or "The Real Stephen Bainbridge Emerges."

See if you can read my mind and tell why I don't think such cogitations need to be spelled out.

"John Roberts’ Openly Gay Cousin Will Now Be Getting Married."

TPM reports.

[Jean] Podrasky says she’s just as surprised that Roberts voted to uphold DOMA, as she is that he sided with the majority in throwing out the Prop 8 case on procedural grounds, which had the effect of making gay marriage legal again in California. Roberts’ split means that despite believing the federal government should continue not to recognize same-sex marriages, he helped clear the one obstacle standing in the way of his cousin and her fiancee.

“I want to say I’m from a very, very big family — I have 12 cousins on both sides of the family,” she says. By that measure, even though he has immense power as Chief Justice, Roberts is just on the other side of a family disagreement. “I want to say that quite a bit of my family on that side are quite conservative and pretty Catholic. We have differences of opinions on many many things, but we are still family. He is about 10 years older than me, so we grew up at different times... I tend to see him at family functions. Basically weddings, funerals, celebrations things like that.”

Whether he'll be invited to her wedding is a question she's diplomatic about not answering:

“I actually don’t know,” she told me. “I’m certainly inviting family [but] we don’t have our guests lists yet.”

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.)

What did the Supreme Court find unconstitutional about the much-honored landmark legislation, the Voting Rights Act of 1965?

Here's the PDF of Chief Justice Roberts's opinion (joined by Kennedy, Scalia, Thomas, and Alito). The 4 liberal Justices dissent.

This is a case about Congress's enumerated powers. It's not about Congress violating rights, but the scope of its power under the 15th Amendment to enforce the right guaranteed by that amendment (the right against race discrimination in voting). This is a power to be used against state and local government, so the scope of that power implicates federalism doctrine, including the “fundamental principle of equal sovereignty” among the states.

The states can, under some circumstances, be treated differently, and they have been under the Voting Rights Act, which survived attack in the past. The problem now is that Congress relies on a formula that uses voter turnout statistics from 1972, and this covers only 9 states (and some counties). These states, subject to different procedures, wait "months or years and expend[] funds to implement a validly enacted law," while the other states "can typically put the same law into effect immediately, through the normal legislative process."

Roberts pays respect to the VRA: "The Act has proved immensely successful at redressing racial discrimination and integrating the voting process." And he acknowledges that "[p]roblems remain." But the Act was "reauthorized — as if nothing had changed."

The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then — regardless of how that discrimination compares to discrimination in States unburdened by coverage....

The [15th] Amendment is not designed to punish for the past; its purpose is to ensure a better future.... To serve that purpose, Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions....

It's not enough to say — as the dissent does — but these covered states still commit violations, Roberts says.

[T]hat is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired.

The Chief stresses that the defect lies entirely in using the old formula to treat the states differently. The Court will be criticized in the political arena, but the political response is clearly stated: "Congress may draft another formula based on current conditions."

ADDED: From the dissent by Justice Ginsburg:

Hubris is a fit word for today’s demolition of the VRA.

This is "hardly... an exemplar of restrained and moderate decisionmaking," because the Court accepts Shelby County's facial challenge to the law:

[T]he Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit — Shelby County, Ala­bama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.

Alabama is home to Selma.... Although circumstances in Alabama have changed, serious concerns remain....

I think the Court did have a word of explanation. The word was "redheads." See above.

"This result is a good one if you like free speech, and fear that government funding can be used as a powerful tool to shape private speech (potentially thought, too)."

"But make no mistake about the context: Roberts and Alito are gearing up for a world where exemptions and protections from generally applicable laws will be sought primarily by conservative groups. The main framework will probably be religious liberty, which opponents of same-sex marriage have increasingly identified as the value under attack when government recognizes same-sex marriage and requires various organizations to do the same. But free exercise of religion is in the First Amendment, too. If he could be made to understand the new emerging politics of the First Amendment, Rehnquist’s anguished ghost might be appeased."

Writes Harvard lawprof Noah Feldman, about the Supreme Court's decision today in Agency for International Development v. Alliance for Open Society International, Inc. (which we've been talking about in some detail, here). Feldman's article, at Bloomberg.com, is titled "Roberts's Liberal Ruling Will Protect Conservatives."

Read the whole thing to understand the role of "Rehnquist’s anguished ghost."

Congress's ill-starred effort to prescribe the orthodoxy of anti-prostitution.

Today, the Supreme Court found that it violated the First Amendment for Congress to grant anti-AIDS funds only to organizations that have "a policy explicitly opposing prostitution and sex trafficking." The case is Agency for International Development v. Alliance for Open Society International, Inc. (PDF).

Chief Justice Roberts, writing for the majority, ends his opinion with what is perhaps the most lofty expression in all of the Supreme Court Reports:

We cannot improve upon what Justice Jackson wrote for the Court 70 years ago: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." [West Virginia State Board of Education v. Barnette, 319 U. S. 624, 642 (1943).

Justice Scalia (who's joined by Thomas) does not appreciate the invocation of Jackson's famously fixed star. He said it was a distraction from "the elephant in the room: that the Government is not forcing anyone to say anything." Congress simply demanded that the recipients of federal funds have "an ideological commitment relevant" to the work that the government is funding. Barnette was about requiring American children to pledge allegiance to the flag. But the U.S. Constitution itself requires legislators to take an oath or affirmation of allegiance to the government, and that shows that the founders believed in "the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work."

You may remember a 1991 case called Rust v. Sullivan, where the Supreme Court upheld HHS regulations that required recipients of federal health-care grants for family planning services to refrain from discussing abortion as an option. Congress was exercising its spending power, and:

That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Rust v. Sullivan, 500 U. S. 173, 195, n. 4 (1991) (“Congress’ power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.”)

In Rust, Roberts says, Congress was defining the program it funded, which was to "encourage only particular family planning methods." Even though Congress limited what they could say as they carried out the funded activity they agreed to do, it did not try to limit their speech outside of the program and it did not require them to espouse a government-prescribed anti-abortion policy.

Justice Scalia said that the government is entitled have its own viewpoints, and it can express that viewpoint by excluding recipients who believe things they don't want promoted.

If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) “without federal assistance,” United States v. American Library Assn., Inc., 539 U. S. 194, 212 (2003) (plurality), refusing to make use of its assistance for an enterprise to which it is opposed does not abridge its speech. And the same is true when the rejected organization is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it....

So how much do you worry about the government exploiting its immense power to channel money into controlling what people are able to say?  Just don't fall for the temptation of taking the money and you can say whatever you want — that's the Scaliaesque answer.

As the government rakes in more and more money and turns around and redistributes it with strings attached, I'd say we should worry a lot. I'm glad to see the free speech right strengthened here.

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 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.

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"?

"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.

"If California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that... if the case before us now were from a State that doesn't provide any of those benefits to same-sex couples, this case would come out differently?"

Justice Alito asked Ted Olson in the Prop 8 oral argument yesterday. Consider the problem of trying to narrow the case by limiting it to California, where voters amended the state constitution to restrict marriage to opposite-sex couples and where they permit civil unions that give gay people access to everything but the word "marriage."

There was much talk about the perversity of imposing more severe constitutional limitations on a state that has done much — but not everything — to include gay people and to give great leeway to the states that have excluded gay people altogether.

It does make some sense. The states that resist any inclusion have preserved arguments about the function of marriage that states like California have given up by structuring civil unions to provide almost equal treatment. It's hard to articulate a legitimate interest in only withholding the name.

But if the Court wants to leave the issue of same-sex marriage to the political process, why would it attach a consequence to taking the intermediate step of creating the civil unions category? That hampers the very process it would be purporting to enable.

ADDED: Later in the argument, Justice Scalia had this colloquy with Solicitor General Verrilli (who argued against Prop 8):

GENERAL VERRILLI: We are not … taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.

JUSTICE SCALIA: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?

Amusingly, at exactly this point, Verrilli’s time’s-up red light comes on and he says” “It’s on.” He could have said, “Saved by the light!” But Chief Justice Roberts tells him to go on.

GENERAL VERRILLI: … I would just take out a red pen and take the word "only" out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.

In other words, to recapture that “only” and put it in a paraphrase: He’s only arguing now that his argument is limited to states like California. If he wins this case, in the next case, when the other issue is presented, he will argue that ssm is required everywhere. Anyone can predict that. Roberts pushes:

CHIEF JUSTICE ROBERTS: You [say] it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.

GENERAL VERRILLI: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect.

What state doesn’t “allow” gay couples to have children and families? I can infer that Verrilli means allow adoption by gay couples, but it’s obvious that the concern about children extends to all the states, since a gay person can be a natural parent to a child and then live with a partner who is not the child’s parents.

Roberts doesn’t pursue that but sticks with his original point. Presumably, he's building the argument that it's incoherent to strike down Prop 8 without finding a right to ssm that applies to all the states.

CHIEF JUSTICE ROBERTS: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.

GENERAL VERRILLI: Well, we think… you can wait in…

CHIEF JUSTICE ROBERTS: States where they have fewer legal rights.

GENERAL VERRILLI: What I said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make. But in California you can't make the record to justify the exclusion….

Verrilli is saying that the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home. Does this cure the incoherence? I doubt it. It's a distinction that might be employed by a judge who looks forward to extending ssm to all the states in the next case. I don't think Roberts is one of those judges.

"He is a smart man... He is a good man. I believe he sees where the tide is going."

"I do trust him. I absolutely trust that he will go in a good direction."

So says Jean Podrasky, who is: 1. a lesbian who wants to marry her partner, 2. the cousin of Chief Justice John G. Roberts Jr., and 3. going to be sitting — at tomorrow's oral argument on same-sex marriage — in the section reserved for family and guests.

I wonder who else will be seated in that section? I'll bet it will be full of people who support same-sex marriage. Of all the family and friends of the Justices, able to get these reserved seats, who would ask to attend this session? The Ted Olson fans? I'm sure there are those.

Podrasky doesn't claim to know Roberts's views on the matter, and I'm sure he wouldn't like to be thought of as someone who decides cases based on where "he sees the tide is going." Even if he were a tide man, one could just as well stand back and let the tide go there on its own.

Same-sex marriage will win whichever way the Court goes. Its opponents can only lose. Which way would they prefer to lose?

The media see the Pope as "a Supreme Court justice that they can't turn."

"They see the pope as a Supreme Court justice they can't intimidate. The Supreme Court scares the heck out of the left because to them it's infallible. Now, they succeeded. Obama and the left somehow succeeded in turning John Roberts when it came to the constitutionality of Obamacare, but they can't turn the pope."

Said Rush Limbaugh, yesterday, after playing a hilarious audio montage of media characters — Chris Cuomo of CNN, Shannon Bream of Fox, Erin Burnett, Juan Carlos Lopez of CNN Español, Gwen Ifill, Allen Pizzey of CBS — reacting to the new Pope.

CUOMO: Where is Pope Francis on the issues that matter most, issues about contraception, women priests?

BREAM: Pope Francis is staunchly orthodox on the issues of abortion, contraception, and same-sex marriage.

BURNETT: He opposed same-sex marriage in Argentina. He opposed free contraception.

LOPEZ: He follows a conservative line. He opposes, uh, same-sex marriages. He is conservative on birth control.

PIERS MORGAN: He is known to be, duh, anti-abortion, anti-gay marriage.

MARIA TERESA KUMAR: He has been against contraception. He's been against marriage equality.

PIZZEY: ...a conservative and opposes abortion!

IFILL: So this is not a pope or a papacy we were gonna see any kind of change when it comes to things like abortion or gay marriage.

They don't seem like they are clowning, though Piers Morgan has the wit to say "duh."

NPR's embarrassing headline: "In Voting Rights Arguments, Chief Justice Misconstrued Census Data."

The article is by Nina Totenberg, who presumably didn't write the headline, and it makes a somewhat abstruse point about the basis for a set of questions that the Chief Justice asked at oral argument.

Roberts' questions and conclusion appear to be taken from a census survey cited in a lower court dissent. 

"A lower court dissent" is a funny way to refer to the D.C. Circuit Court of Appeals case that is under review! Roberts pulled something out of the case that the Court is working on. Under the circumstances, it would be bizarre if the Solicitor General didn't get the reference. (Check the transcript PDF at page 32.) Tapping material in the lower court's opinion is predictable and perfectly mundane. Totenberg glosses over that to stress the data underlying the Court of Appeals judge's opinion, which, she tells us, comes from Census Bureau data that have such a wide margin of error that it doesn't really mean much. Well, if that's such an important point, why didn't the Solicitor General say that in the oral argument?! Here's what we got instead:

CHIEF JUSTICE ROBERTS: [D]o you know which State has the worst ratio of white voter turnout to African American voter turnout? 

GENERAL VERRILLI: I do not.

CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi. 

GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -­ 

CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American? 

GENERAL VERRILLI: I do not know that. 

CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate. 

Maybe saying "I do not know," Verrilli secretly meant that the Census data was so rough that no one could really "know" such facts, but the transcript shows a blank statement of lack of knowledge and an effort to shift away to the subject of what findings Congress relied on. If the statement in the dissenting opinion (written by Stephen F. Williams) was so unreliable, Verrilli should have shot it down neatly and quickly. 

He didn't. Totenberg is doing cleanup work. She went out and talked to "Census officials" who told her that "these numbers are simply not reliable for state-by-state comparisons because of the high margins of error in some states." That's useful to know, as the issue in the case has to do with how closely the Voting Right Act tracks the actual problem of voting rights violations in the states.

But "Chief Justice Misconstrued Census Data"?! Why doesn't NPR care about its reputation for journalism? What an embarrassing display of eagerness to discredit Roberts! Totenberg's article isn't about Roberts misconstruing anything. It's about the relatively low value of Census data that Judge Williams used in his dissenting opinion. If that material was so terrible, Verrilli fell short at oral argument.
 
ADDED: Pepperdine lawprof Derek T. Muller emails noting Totenberg's focus on 2010 census data, when the relevant data — in the Court of Appeals case and for the purposes of the 2006 reenactment — is the 2004 data:

If I may, both Ms. Totenberg and [Massachusetts Secretary of State William F.] Galvin are either intentionally misrepresenting Chief Justice Roberts's (and the lower court's dissenting opinion's) data, or they are unaware of an important distinction they've elided over.

For Chief Justice Roberts (I think), the concern is the coverage formula. And the coverage formula was reauthorized in 2006. And the last available voter data was 2004. It's unsurprising, then, that the lower court's dissenting opinion, at 11-14, look[s] at the voting data from 2004. It specifically refers to this Census data,Table 4a.

Within that table, one can see that the turnout rate for African-Americans in Mississippi in 2004 was 66.8%, MoE 5.2. In Massachusetts, it was 43.5%, MoE 9.6. So assuming one wants to stretch the MoE, the low end of MS would have been 61.6%, and the high end of MA would have been 53.1%. Ms. Totenberg's calculation to "factor in the margins of error at their extremes" would result in the same confidence that MA African-American turnout was worse than MS.

As to the citizen voting-age population question, one can run a quick check in the MA data to see that it would rise from 43.5% to 46.5%, while MS would remain largely the same — and I'm fairly confident that even a change in the MoE would not put MA in a statistical range in which it would be better than MS.

Now, this is important data because *it is 2004 data*, the data that Congress would have used (and, taking into account time and space, absent a DeLorean, *could* have used) when it reauthorized the coverage formula.

Ms. Totenberg and Mr. Galvin use the 2010 Census data, which is not the data that Congress would have had at its disposal in reauthorization.

Mr. Galvin "assumes" it is the 2010 data Chief Justice Roberts discusses, and is not terribly careful if he says the "only thing we could find" was the 2010 Census, or that "academics" at other institutions "could find no record," when the record *is in the lower court dissent itself*.

Ms. Totenberg, to her credit, links to the lower court dissent--but then ignores the actual 2004 Census data cited, instead choosing to cite the 2010 Census data, which was not used in the lower court dissent (and which, I assume, was not cited by Chief Justice Roberts).

Now, granted, I understand that one could argue that the question is too narrow, that citing solely the returns from a single election (i.e., 2004) is not enough to sink the coverage formula, that the effectiveness and turnout rates today are important in the Court's analysis, etc.

But, these stories glibly rejecting a point Chief Justice Roberts made at oral argument by using a point he didn't make do not advance the conversation in any meaningful way.

Again: embarrassing.

Massachusetts SOS miffed that John Roberts said Massachusetts has "the worst ratio of white voter turnout to African-American voter turnout."

The Chief Justice was questioning  Solicitor General Donald Verrilli in the oral argument about the federal Voting Rights Act (which treats some states differently from others based on voting statistics from 1972). The Chief also pointed out that Mississippi has the "best" ratio.

Massachusetts Secretary of State William Galvin defends his state:

“It’s just disturbing that the chief justice of the United States would spew this kind of misinformation.... He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks...We have an immigrant population of black folks and many other folks. Mississippi has no noncitizen blacks, so to reach his conclusion, you have to rely on clearly flawed information.”

The 2010 tables show that Massachusetts does have a high discrepancy between turnout of white and black voters, but is in line with several other states, including Minnesota, Kansas and Washington, which actually has a wider ratio. The states are also similar on registration numbers. Additionally, the margin of error on each of these states’ data is over 10 percentage points, and many states on the list had populations of blacks so small, data wasn’t even available.

I'm sure the Chief was relying on something. Anyone know what it was? In any case, the basic point is intact: There's a disconnect between the problem the act seeks to rectify and the conditions among the states today. 

ADDED: Roberts was apparently referring to material in the dissenting opinion in the court below (the D.C. Circuit Court of Appeals).  The underlying data is from the Census Bureau. Nina Totenberg having talked to "Census officials" who explain why their data is unreliable, writes an article that I critique here.