"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."

Why is Linda Greenhouse singling out Justice Scalia in this op-ed about the question of religious exemptions to the Affordable Care Act?

The Supreme Court granted cert. in the Hobby Lobby case, in which a business seeks to avoid the requirement to provide coverage for abortifacient-type birth control on the ground that it burdens its free exercise of religion and is not justified by a compelling government interest. This claim is based on the Religious Freedom Restoration Act, a statute that was designed to give religious believers rights that the Supreme Court had recently determined were not guaranteed by the Free Exercise Clause of the Constitution. The case that restricted the scope of the Free Exercise Clause was Employment Division v. Smith, and the majority opinion was written by Antonin Scalia.

That is, of all the Supreme Court Justices who have resisted constitutional arguments for giving special exemptions for religion, the first name on your list should be Antonin Scalia!

But Linda Greenhouse's piece ends:

If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.

Packaged as an exercise in statutory interpretation? It is an exercise in statutory interpretation.

Without the Religious Freedom Restoration Act, there would be vanishingly little hope for an exemption. Employment Division v. Smith would almost surely determine that the federal government's law binds everyone in the same way. And you'd be able to thank Justice Scalia for his crisp, hard-core rule that lets legislators do things like that and keeps the judiciary in restraint.

Greenhouse knows all that. She refers and links to Smith, though she doesn't mention that Scalia wrote it. She knows the legal claim is based on the Religious Freedom Restoration Act. It's as if there's some secret NYT rulebook that says: When writing about the Supreme Court, always attack Scalia.

The Greenhouse idea is to say this case is really about sex, because opposition to birth control and abortion is really about sex, and then Scalia is supposedly a "culture warrior" on sex issues. But even if you could accept that opposition to abortion and birth control is really about sex, what does Scalia care about sex? He's not a culture warrior! To say so is to distort the opinions of his that accuse other members of the Court of taking sides in the culture war. When he makes that accusation, he's promoting judicial restraint and deference to democratic decisionmaking. Sometimes that restraint manifests itself in cases where legislatures have done things like criminalize sodomy or restrict abortion, so he'd stand back and let social conservatives win. But that would not be because he's a "culture warrior." He's a committed pacifist, looking on, letting the victors in the legislative battle keep their spoils.

But the Hobby Lobby case isn't about narrowly interpreting the Constitution to let legislative majorities have their way. It's a conflict between 2 statutes, and it was absolutely not Antonin Scalia who encouraged giving religious exemptions. It was Congress, which was reacting to Scalia's rejection of constitutional exemptions. The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of Jesse Helms).

From the NYT article in 1993 when President Bill Clinton signed RFRA into law:

President Clinton hailed the new law at the signing ceremony, saying that it held government "to a very high level of proof before it interferes with someone's free exercise of religion."...

President Clinton voiced wonder today at this alliance of forces that are often at odds across religious or ideological lines. "The power of God is such that even in the legislative process miracles can happen," he said. 

This is about statutes and the politicos who produce them, not the judges who stand back and let them trip all over themselves pandering to everyone. If the Congress that passed the Affordable Care Act had wanted to exempt it from the Religious Freedom Restoration Act, it could have done so explicitly. It did not. Why should the Court cut back Congress's absurdly broad RFRA to help it out with what it failed to bother to do with the ACA?

Congress deserves another kick in the ass like the one the unanimous Supreme Court gave it in O Centro Espirita Beneficiente Unio do Vegetal (letting a religious group use the psychedelic drug hoasca despite the ever-so-important federal statute, the Controlled Substances Act).

"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.

Ted Cruz's wife Heidi is like him in "intensity — and they’re both extremely bright" but: “Nothing in her background remotely approached Ted’s Scalia-like conservatism."

A quote from one of Heidi Cruz's academic mentors in a NYT article titled "A Wife Committed to Cruz’s Ideals, but a Study in Contrasts to Him."

The Supreme Court oral argument today in the federal campaign finance law limiting total contributions an individual may make to various candidates.

Adam Liptak thinks the Court is divided "along familiar ideological lines" and "prepared to strike down" the law:

“By having these limits, you are promoting democratic participation,” Justice Ruth Bader Ginsburg said. “Then the little people will count some.”

Justice Antonin Scalia responded, sarcastically, that he assumed “a law that only prohibits the speech of 2 percent of the country is O.K.”

Scalia responded "sarcastically." Why an adverb for Scalia's statement and not for Ginsburg's? It seems biased not to spread the adverbs around on both sides of the "familiar ideological line." Journalism should be judged by the fairness of the distribution of adverbs.

Help Adam Liptak give adverbial equality to Justice Ginsburg.
	"Then the little people will count some," said Justice Ginsburg, sententiously.
	"Then the little people will count some," said Justice Ginsburg, superciliously.
	"Then the little people will count some," said Justice Ginsburg, condescendingly.
	"Then the little people will count some," said Justice Ginsburg, grandiosely.
	"Then the little people will count some," said Justice Ginsburg, patronizingly.
	"Then the little people will count some," said Justice Ginsburg, maternally.
	"Then the little people will count some," said Justice Ginsburg, diminuitively.
	"Then the little people will count some," said Justice Ginsburg, pretentiously.
	"Then the little people will count some," said Justice Ginsburg, gloriously.
	"Then the little people will count some," said Justice Ginsburg, divaishly.
	"Then the little people will count some," said Justice Ginsburg, furtively.
	"Then the little people will count some," said Justice Ginsburg, wistfully.
pollcode.com free polls

UPDATE: Adam Liptak emails to say: "I meant to signal that he was saying the opposite of what he meant. The quoted words standing alone would mislead the casual reader. It also seemed to me to capture his tone." I know that was the function of the adverb, but it seems to me that the NYT is continually nudging us to view Scalia as mean/nasty... and I was having a little fun with it.

Which state attorneys general "were throwing away important points of law, not just for their state, but for the other 49"?

In his New York Magazine interview, Justice Scalia says that these days, when the states have cases in the Supreme Court, they send in "people who know how to conduct appellate argument." But:

In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.

Who, specifically, do you think he might have been talking about there? I'll tell you who I thought of when I read that: Roger A. Tellinghuisen, the Attorney General for the state of South Dakota, whose argument in South Dakota v. Dole — the key case about Congress's power to attach conditions to spending — threw away an important point of law that could have limited the spending power. For years, when I teach that case, I've urged students to listen to that argument as a lesson in what not to do.



Tellinghuisen was only prepared to talk about the 21st Amendment as a limit on the Spending Power. There's an argument in an amicus brief from the National Conference of State Legislatures that O'Connor pushes Tellinghuisen to use, about how related the condition needs to be to the spending, and Tellinghuisen says he's "not prepared to argue that particular fine point." His case is about a condition that relates to the sale of liquor, so he's all about the amendment that preserves state legislative power in that area, as if all that matters is winning this particular case — which he didn't — and not about the doctrine that will apply to many other cases in the future.

In the 7-to-2 opinion in Dole, written by Chief Justice Rehnquist, we see that the thrown away point in a footnote (boldface added):

Our cases have not required that we define the outer bounds of the "germaneness" or "relatedness" limitation on the imposition of conditions under the spending power. Amici urge that we take this occasion to establish that a condition on federal funds is legitimate only if it relates directly to the purpose of the expenditure to which it is attached. See Brief for National Conference of State Legislatures et al. as Amici Curiae 10. Because petitioner has not sought such a restriction, see Tr. of Oral Arg. 19-21, and because we find any such limitation on conditional federal grants satisfied in this case in any event, we do not address whether conditions less directly related to the particular purpose of the expenditure might be outside the bounds of the spending power.

The Court found spending on highway construction sufficiently related to the age at which a person is allowed to buy alcohol. Dissenting, Justice O'Connor said:

When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life because of an attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State's social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced.

What an astounding missed opportunity to limit conditional spending! 

I was going to make a list titled 9 Things Justice Scalia said in his New York Magazine interview.

Most interviews with Supreme Court Justices are not even worth that. The Justices say such predictable things that I might pull out the most interesting thing or, not finding one, I skip blogging it altogether. But this interview by Jennifer Senior is so good (and long) that as I read it (before getting out of bed just now) I decided I'd pull out 9 items (the number 9 pops into my head when I'm thinking about Supreme Court Justices) and do something like:

1. He calls DVDs "CDs" (and the "CDs" in question are episodes of "Seinfeld").

2. He thinks "blurbing" on the internet is narcissistic and interferes with the process of becoming a good writer.

3. He's most proud of his opinion in Morrison v. Olson (where he's the lone dissenter in the decision that found the Independent Counsel law constitutional).

4. He thinks Congress is truly dangerous — if only it would actually use the powers it has.

5. He's not "a fan of different levels of scrutiny" in constitutional interpretation.

6. He believes in the Devil, because it's Catholic doctrine, but maybe because it's a helpful metaphor.

7. He plays poker, claims to be good at poker, but is unfamiliar with the term "tell."

8. He has friends that he knows or "very much suspect[s]" are homosexual, and doesn't like the interviewer's suggestion that — re homosexuality — he's "softened."

9. To imitate Rehnquist, he "turns his nose up theatrically, flutters his hand in dismissal."

There are more than 9 things worth treating that way...

10. You have to be very careful picking law clerks because "one dud will ruin your year."

11. His dissents have the tone they do — "breezy" and with "some thrust" — because they're written for law students and law students will read that sort of thing.

12. Back in the 80s, Supreme Court opinions were loaded with the "garbage" of legislative history (and they're not anymore, and he takes credit for that).

13. He wants the Catholic Church to be more evangelistic.

14. He blames "The Gipper" for turning the State of the Union Address into the "childish spectacle" it's become.

15. He likes Bill Bennett's radio show.

16. He won't read The Washington Post anymore because it became so "shrilly, shrilly liberal" that he can't "handle it."

17. The worst thing about the Constitution, he thinks, is that it's way too hard to amend it.

18. He "repudiate[s]" his old statement that his originalism is "fainthearted."

But I decided (at the point of finally getting out of bed) that I wanted to do a series of posts on a number of topics, taking them on individually and blogging — or blurbing — my way through and going somewhere with the idea. It's the Devil topic in particular that made me want to do that. I know there are people who are linking to this interview just to say Scalia believes in the Devil, but — is the Devil making me do this? — I feel there's a lot in his discussion of the Devil that needs to be taken apart and examined. The blog will blurb and burble.

ADDED: Here's the promised Devil post. And here's a post about a topic that isn't represented on that list of 18 things.

Cass Sunstein explains Antonin Scalia.

In this new op-ed.

He seeks to increase predictability and to reduce the risks associated with judicial discretion. He favors general rules, not case-by-case judgments. In his view, such rules simplify life for ordinary people and the legal system as a whole. They also reduce the danger that political preferences will end up dominating judicial decisions....

One of the most vivid writers in the court's history, he knows how to deliver a punch. Sometimes he seems to think that people who don't see things his way aren't merely in error but are also foolish, unacceptably political, even lawless.

Those who disagree with Scalia are entitled to object to his votes and his tone. At the same time, they should understand that his broadest commitment is to the rule of law. They should honor that commitment, and they should respect his efforts to develop an approach to interpretation that is compatible with it.

Sunstein absolves Scalia of partisanship: He's committed to the rule of law and not to "any political ideology."

I offer this proposition for debate: Sunstein himself is a political ideologue playing a partisan game, and this absolution for Scalia is a clever gambit.

"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.

"Justice Scalia Used The Term ‘Argle-Bargle’ In A Scathing, Condescending DOMA Rant."

Business Insider gets to the meat of things.

Specifically, Scalia said: "As I have said, the 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."

I started a new tag today. No, not "argle-bargle." Paraphrase. I've become immensely interested in the concept of paraphrasing, and I'm hypervigilant about paraphrasing about paraphrasing, and I see that there. Scalia has a really cheeky way of saying "so what you're really saying is...": whatever disappearing trail of its legalistic argle-bargle one chooses to follow....

Memorize that. Use it. It's sure to annoy some people and give others a great sense of relief. For example, law students may enjoy hearing the lawprof say whatever disappearing trail of its legalistic argle-bargle Justice X chose to follow, the real rationale is...

So high-handed! So liberating!

The (unlinkable) OED traces "argle-bargle" — which means "Disputatious argument, bandying of words, wrangling" — back to 1872:

1872   A. J. Cupples Tappy's Chicks 252   During these days of ‘argle bargle’, as our smith's wife called it.
a1881   Carlyle in W. A. Knight Retrospects (1904) 15,   I have for a long time given up the argle-bargle of metaphysics.
1927   Observer 11 Dec. 15/2   Can they..stand up to a good and sufficient argle-bargle that lasts for the best part of three hours?

UPDATE: 2 days later, I actually did make a tag for argle-bargle — as the continued use of the term appealed to me — and came back to add it here.

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.

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. 

The Supreme Court sends Fisher back to the lower court with instructions to take strict scrutiny much more seriously.

Here's the PDF of the opinion, which was 7-1. Instead of applying the "searching examination" of strict scrutiny...

... the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” 631 F. 3d, at 236. And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. Id., at 231–232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious ad- missions policy followed from [a process of] good faith consideration.” Id., at 231. The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Id., at 232. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.” Id., at 231.

IN THE COMMENTS: "Someone explain this to me like I'm ten, please and thank you." Okay. The Supreme Court has said that all race discrimination by the government — including well-intentioned, supposedly benign things like affirmative action — must be subjected to "strict scrutiny," which normally is said to require that the government have a "compelling interest" and that the discriminatory policy is "narrowly tailored" to serve that compelling interest. But in Grutter v. Bollinger, the narrow majority made it seem as though universities, if they used race as a factor in a holistic judgment about whom to admit, deserved some deference, and the Court of Appeals relied on that. Today, the Court seems to reject that reading of Grutter. Take into account that Fisher didn't ask for the Court to overrule Grutter, so that enterprise is pushed into the future. Also in the future, there's a pending case from Michigan about affirmative action. So the drama over affirmative action continues.

AND: Justice Ginsburg is the only dissenter, and she refers to her own dissenting opinion in Gratz. (Gratz was the companion case to Grutter. The majority upheld the University of Michigan Law School's "holistic" approach to affirmative action in Grutter but shot down the more mechanical methodology used in Gratz.)

I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303–304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Id., at 297–298 (dissenting opinion).

That is, forthright, transparent affirmative action is preferable.

It is race consciousness, not blindness to race, that drives such plans [as Texas's automatic admission of the top 10% in every high school].

In a footnote there, Ginsburg quotes a professor (Thomas Reed Powell): “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” That is, only legalistic people think there's a way out of race consciousness.

MORE: Now, let's look at the concurring opinions. Justice Scalia has one short paragraph to underscore the fact the litigant in this case failed to ask the Court to overrule Grutter. He also joins the majority "in full." Justice Thomas has a much longer concurrence, which joins the majority but tips his hand: He's ready to overrule Grutter, and he wants to say "categorically" that a state may not use race at all in the admissions process.

Grutter was a radical departure from our strict-scrutiny precedents....

Attaining diversity for its own sake is a nonstarter....

[T]he educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest....

There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits....

The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life....

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers....

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....

Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates....

Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University....

The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched....

Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination.

Here, Thomas quotes John McWhorter: "I was never able to be as proud of getting into Stanford as my classmates could be. . . . [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted."

ALSO: Finally, let's focus on how Justice Kennedy — writing for everyone but Ginsburg and Kagan — pushed the Court of Appeals back on its understanding of Grutter:

According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328.

There's that deference. It's about finding diversity "essential." That's "an academic judgment" and judges "some, but not complete" deference is "proper" under Grutter. The lower courts "were correct" about that deference. The question is whether Grutter was correct to accept diversity as a compelling interest for Equal Protection Clause strict scrutiny analysis. Kennedy cautions (as Grutter itself cautioned) that diversity isn't just another way to say racial balancing.

Is there deference in determining whether there's narrow tailoring?

[A] court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. 

But, again, it's not complete deference. Grutter demanded "a careful judicial inquiry" into the  university’s "serious, good faith consideration of workable race-neutral alternatives." But the Court of Appeals only looked at "whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith." It spoke of presuming good faith at one point as it disparaged its own ability to figure out what admissions policies are needed.

Grutter did not hold that good faith would forgive an impermissible consideration of race....

So here the Court of Appeals misunderstood Grutter. The remand isn't to determine if Grutter should be overruled, but to try again, applying a less judicially restrained version of Grutter. The word "overrule" does not appear in Kennedy's opinion, only in the 2 concurring opinions. The closest Kennedy comes to talking about overruling Grutter is at page 9, in discussing diversity as a compelling interest:

There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 1 (SCALIA, J., concurring); post, at 4–5 (THOMAS, J., concurring); post, at 1–2 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.

Revisit. A euphemism. Obviously, the nudge to ask what was not previously asked is sharp enough.

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.

"Perhaps Regina Marcia Benjamin should suggest teaching pro-abortion-rights bloggers that masturbation is part of human sexuality."

Says Meade, here, in the discussion of the ugliness of the mockery of the "masturbating fetus," and alluding to Benjamin's predecessor in the role of Surgeon General, Jocelyn Elders, who was fired by Bill Clinton in 1994 for saying that children should be taught that masturbation "is a part of human sexuality, and it's a part of something that perhaps should be taught."

(She meant taught about, but there was much mockery, as people assumed or pretended they believed that she thought that school teachers should be showing children how to do it, as opposed to simply teaching that it's something that many people do, that isn't physically harmful, and that avoids pregnancy and disease.)

This mockery of masturbation is quite fascinating. I'm drawn to Scalia's notorious dissenting opinion in Lawrence v. Texas, in which he defended the state's power to criminalize sodomy:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.

Imagine a state today attempting to prosecute the crime of masturbation. Of course, the defense would be the right of privacy, and the courts would hear masturbation described in the loftiest terms. It would parallel what we heard — over the past few decades — about homosexuality, which was initially viewed as a lowly or ridiculous matter that didn't belong in the treasured realm of constitutional rights.

Given the importance of privacy rights to the pro-abortion-rights bloggers, I think their laughing at the masturbating fetus shows the poverty of their understanding of the very rights they'd like to pressure others to believe in.

By the way, that much-produced theater piece "The Vagina Monologues" gets reverent about masturbation:

I lay back and closed my eyes. I put the mirror down. I watched myself floating above myself. I watched as I slowly began to approach myself and re-enter. I felt like an astronaut re-entering the surface of the earth. It was very quiet this re-entry, quiet and gentle. I bounced and landed, landed and bounced. I came into my own muscles and blood and cells and then I slid into my vagina. It was suddenly easy and I fit. I was all warm and pulsing and ready and young and alive. And then, without looking, with my eyes still closed, I put my finger on what had suddenly become me. 

As the Supreme Court said: "one's own concept of existence." Or as the commenter at the fetus-mocking pro-abortion-rights blog said: "'I fap, therefore I am'? Sounds like a plausible slogan for today’s GOP wankers. Jesus God." Exactly. Jesus. God. Cosmic.

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

Waiting for Fisher....

Another Supreme Court opinion-announcement day... 

ADDED:  First up is American Trucking v. LA, a Kagan opinion. They announce opinions in order of seniority, and Kagan is least senior. Something about trucks... and preemption. [ALSO: This case has a concurring opinion from Justice Thomas saying Congress's statute is not supported by the Commerce Clause, "at least in certain contexts."]

AND: A second opinion, Tarrant Regional Water Dist. V. Herrmann, from Sotomayor, the second-least senior. Something about water... and preemption.

NEXT: Third: Ginsburg's opinion, U.S. v. Davila. "This was a case in which the issue was whether there must be an automatic reversal if the judge played any role in the plea bargaining...  Federal Rule of Criminal Procedure 11 prohibits judges from participating in plea agreements, but another subsection of the rule also provides that a 'variance from the requirements' of Rule 11 is 'harmless if it does not affect substantial rights,' so this one did not come as a huge surprise."

ALSO: "We have gene patenting. The Court holds that natural isolated DNA is not patentable. Synthetic DNA is patentable." This is a very important case. Unanimous. Thomas wrote the opinion, so that means only Kennedy, Scalia, and Roberts are left to have opinions that might come out today. Here's the PDF of the case, Myriad Genetics. It's a unanimous opinion but Scalia concurs to say:

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

AND: That's it for today.

"If DNA sampling was actually like fingerprinting, [the Supreme Court's] argument might be convincing."

"But of course it isn’t. Fingerprints are a phenotype that reveals nothing except a random pattern that no two individuals share. DNA, however, is your genotype: the blueprint for your entire physical person. If the government has my fingerprints, it’s like they have my randomly assigned Social Security number. If it has my DNA, it’s like they have the entire operating system."

Harvard lawprof Noah Feldman says in "Court’s DNA Ruling Brings U.S. a Step Closer to 'Gattaca.'"

Like many, Feldman bestows admiration on the oft-scorned Scalia, who dissented. Feldman — despite the admiration — refers to the Scalia opinion as "his pungent dissent." I guess he wanted a less-common adjective to tack onto the word "dissent." What are the usual words? Stinging, sharp, pointed, biting...
But "pungent"? Doesn't that mean smelly? Feldman doesn't intend an insult, so, did he — shunning the trite — pick the wrong word? Actually, no. The (unlinkable) Oxford English Dictionary gives 6 meanings for the adjective "pungent," and they justify it as a compliment paid to a strong and well-written dissenting opinion:

1. Of pain: as if caused by a sharp point; piercing, stabbing; pricking....

2. Sharp; piercing; that has sharp points....

3. Forcefully or incisively expressed; (of argument, opinion, etc.) convincing, persuasive; sharply critical; (of censure) trenchant, biting....

1747   J. Edwards True Saints vi,   He expressed himself with that exact propriety and pertinency, in such significant, weighty, pungent expressions, with that decent appearance of sincerity.
1761   tr. C. Batteux Course Belles Lettres III. ii. v. 195   This poet is author of two satires universally esteemed the most pungent and best written in our language....
1876   Atlantic Monthly Aug. 202/2   He forced the unwilling esteem of men by his inflexible probity, his pungent logic, and his untiring industry.
1953   E. Jones Sigmund Freud I. viii. 168   She had a pungent tongue that contributed to a store of family epigrams....

4. a. Affecting the sense organs, esp. those of smell or taste, with a sharp, penetrating sensation; acrid, irritant; intensely flavoured, piquant....

5. Strongly or painfully affecting the feelings; intense, keen; painful, poignant. Now rare and literary....

6. Mentally stimulating or exciting; fascinating. Now rare....

I think the "smelly" connotation arose — a rose! — over the years as people used the word as a humorous euphemism, causing it to sound — at least to me — like a insult. I will reassign it to my mental list of noninsults.

In addition to troublesome words like "pungent," we're expected to get "Gattaca." That's a movie I put on my "watchlist" at Amazon after I saw that it was one of "The Top 5 Underrated Sci-Fi Movie Masterpieces."

Justice Scalia writes a dissent — in a 4th Amendment case — joined by Justices Ginsburg, Sotomayor, and Kagan.

The case, Maryland v. King (PDF), just released, is about taking a cheek swab for DNA purposes, as a routine part of booking a person the police have arrested. The dissenting opinion begins:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

ADDED: Orin Kerr notes that "Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term:"

King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).