Chief Justice Roberts writes the opinion, with only Justice Alito dissenting. Justice Breyer has a concurring opinion. From the Roberts opinion:
The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence....
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995)....
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield West- boro from tort liability for its picketing in this case.
Clearly, this is the right outcome.
AND: Alito, the lone dissenter, stresses the value of the tort called "intentional infliction of emotional distress":
Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.
In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.
Breyer's short concurrence makes the point that the decision is limited to in-person picketing about matters of "public concern." In adding that the Court "does not examine in depth the effect of television broadcasting" and "internet postings," I get the sense that he's looking ahead to cases about bullying.
The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation....
Judicial decisions, like the Constitution itself, are nothing more than "parchment barriers," 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences. Today's opinion falls far short of living up to that obligation — short on the facts, and short on the law.
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
Of course, the argument Tribe likes was presented, considered, and rejected in the 2 federal court cases. It's a perfectly comprehensible argument, but that doesn't make its success in the Supreme Court a sure thing. Acting as if it does, Tribe says "it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Oh, you terrible people who fail to bow to the obviousness of one side of a constitutional argument! You compound your sins by falling prey to the upsetting belief that the Supreme Court Justices are politically partisan!
To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
That's not sarcasm. Read the whole thing. You'll see, it's not intentional sarcasm. It might be an attempt to sweet-talk Scalia into using the health-care litigation to score some political neutrality points, but it's not sarcasm. It's more: Ah! What a fine Justice, full of integrity and intellect, I will say Justice Scalia is if he decides this case my way!
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well.
Oh! People are sooooo unfair to Justice Kennedy. I, Larry Tribe, will protect him from the scurrilous "swing vote" remarks people make.... when he decides this case my way!
I hope they do a better job of pointing at the Lopez case than that NYT link does. Here's the right link, in case anyone cares.
But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects.
Drew a bright line, eh? But the line, if you can call it a line, isn't about "commercial choices." That's Tribe's phrase — as he assures us the line is bright! — and what the Court said was "commercial activity" — which is why the argument about the distinction between activity and inactivity has been so important in the health care litigation. Tribe declares lines to be bright precisely at the point when he is shedding darkness. (If you think you can't shed darkness, I agree. I'm just riffing on the linguistic oddity of the lawyer's expression "bright line." Aren't easy-to-see lines usually dark — like black ink on white paper?)
The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.
"Quintessentially" is such a strong word that perhaps you will not notice that it's next to the phrase that is not "economic activity."
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.
Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.
And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.
Rule 11. Certiorari to a United States Court of Appeals Before Judgment A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require im mediate determination in this Court. See 28 U.S.C. §2101(e).
It is extremely rare for the Court to grant certiorari before judgment of a court of appeals.... A quick Westlaw search (in which I certainly may have missed something) indicates that the last time the Court did so — setting aside cases in which the Court took a case and consolidated it with another one coming from the court of appeals, or simply granted cert to vacate and remand in light of a recent decision — was 23 years ago in United States v. Mistretta. There, the district court had declared the newly minted U.S. Sentencing Guidelines unconstitutional as a violation of separation of powers. And the need for quick judicial resolution was extremely pressing — it affected the sentencing of every single federal defendant in the country.
What is the argument for urgency here? So much effort and money are being wasted if it is in fact the case that the reform is void.
That's Randy Barnett — talking about the constitutional challenges to the health care law — quoted in Politico's ominously titled article "Right takes refuge in Constitution."
By the way, last Wednesday, I attended a Federalist Society-sponsored panel discussion here in Madison about this topic. One of the speakers was Wisconsin Attorney General J.B. Van Hollen, who has just taken steps to join the Florida lawsuit challenging the law. Also on the panel were Jon Richards, a state legislator who supports the law, and Ilya Somin, the George Mason law professor who has written that the lawsuits are at least not frivolous.
Scrambling to find 2 of the last few seats, Meade and I sat at a table which seemed to be full of lawyers who supported health care reform. One lawyer haughtily informed me that whatever law professors might think about the Constitution, it's really all politics, and this health care reform represents a big, important political effort and that's why it's going to be upheld in the courts. I said, if it's all politics, then what of all the politics pushing back against the law? What about the polls that show most people are against it and what about the last election? If you're going to say politics determines the outcome, then don't you have to take that politics into account too? The lawyer looked either alarmed or angry, because I, a law professor, didn't simply assert that the Constitution matters, which would have made it easy for him to irritatingly chuckle about naivete. But right then, the panel started, saving him from having to try to wriggle off my skewer.
Van Hollen kicked off the discussion with assertions that he joined the lawsuit not because he's opposed to the health care statute, but because of the rule of law. The litigation is important to test the scope of congressional power. We have a system of a balance of powers, which he likened to a "teeter-totter." The states have to take their position on the other side of the teeter totter or things aren't going to work very well. The idea is to push back against federal power and to give the courts the opportunity to clarify the law. Van Hollen speaks like the well-polished politician he is.
Richards was having none of this abstract rule-of-law business. Economic realities should trump legal jargon, he said. He portrayed constitutional law as a matter of technical conceptions that shouldn't be allowed to stop government from doing the things that need to be done. He focused on the policy reasons for supporting the law and the argument that the law is constitutional flowed naturally from his support of the law. As for lawsuits: "Lawsuits are a real distraction."
Somin said the rule of law is "technical conceptions" — which was the punchline of the day, in my view. He gave a measured presentation, explaining the case law in a professorly style, and assessing the odds that the Supreme Court would overturn the individual mandate. (He said the 4 liberals would stick together and uphold it, that the conservatives were a more "fractious" bunch, so although Scalia, Thomas, and Alito would vote against it, he doesn't know what Roberts and Kennedy will do.)
Here's my page of notes from the Somin part of the panel:
After that, there were some questions from the audience. One questioner, trying to get his mind around the notion that the failure to buy insurance is inactivity and arguably therefore not "economic activity" within the meaning of the Commerce Clause case law, said "If you look at a human being as a going concern...." — which I thought was pretty funny. Yes, the government sees us as little businesses, as we sit here ostensibly doing nothing: our hearts pump blood, our gut digests food, and our brain cells spark with resistance to the purchase of products the government knows we should be buying.
Supreme Court Justice Antonin Scalia will speak on Monday on the separation of powers at an event organized by Rep. Michele Bachmann (R-Minn.) and her Tea Party Caucus.
Organized by... but every member of Congress has received an invitation to attend.
The lecture is going on despite the objections of some observers. The New York Times editorial board called for Scalia to cancel his commitment.
“By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the ‘Justice from the Tea Party,’” the board wrote in December.
The Times said it would oppose a similar event featuring a liberal Supreme Court justice and targeted at Democratic members of Congress. “The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.”
Wouldn't it be ironic if that editorial left the NYT looking rash and biased? Some liberal members of Congress will attend the session. If anything fishy goes on, they'll let us know. I presume Justice Scalia will give the lecture he always gives about the proper role of courts in our constitutional system. I look forward to hearing about the supposedly outrageous statements that turn out to be entirely mundane within the set of things Scalia has been saying for decades.
What it all boils down to is: Liberals don't like it that Scalia is on the Supreme Court. They've never liked it. And the NYT is especially dedicated to making people think that his being on the Court is something untoward, some abuse of power. I'm sure there are some NYT readers who are titillated by that sensationalism, but I find it embarrassing.
"The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedents...
"Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising — thus effectively undermining the basic Democratic principle of the power of one person, one vote... Chief Justice Roberts promised to just call balls and strikes and then he moved the bases."
Bleh. You just disagree with the call. I hate this sort of political posturing. It's not the massiveness of the congressional record that makes a statute constitutional. It's fitting within the Constitution.
Specter is acting as if the question at the confirmation hearing was: If we put a really, really huge number of words into the record, do you promise to let us do anything we want? And the answer was: Yes, of course. When I see a lot of pages, I always think, wow, that must be true.
From aca litigation blog (which has an excellent collection of documents from the litigation over the Patient Protection and Affordable Care Act):
The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.
Such contempt for what the district judge does — "as a technical legal matter, irrelevant." But nontechnically, there's a "political dimension" — and that matters.
[T]he more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.
So district judges only matter in the dimension where they don't really belong: politics? Oh, and influencing the Supreme Court — or "alter[ing] the context" in which the Supreme Court operates? Is that not a legal matter? Or... it's a legal matter but not a technical legal matter? There's technical law and there's atmospheric law?
The district judge — in this view — doesn't have any real power. He's more like a journalist — or a law blogger — fogging up the atmosphere with feelings about what the answer ought to be — some sort of miasma that might coalesce into a context.
***
This ties back to our discussion earlier in the week — here and here — about attempts to shape legal opinion by laughing at arguments — trying to create a social context in which smart people — and the people who want to look or believe they are smart — somehow just know that they're not supposed to take certain arguments seriously.
Who needs technical law when you can do atmospheric law?
On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter. They were addressing the "individual mandate" — the federal law requiring private citizens to buy health insurance, which a federal judge said is beyond the reach of Congress's enumerated powers. In my post, I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights."
An emailer reminds me of the precise language that appeared in the Supreme Court's case that ruled that states could criminalize homosexual sodomy. In Bowers v. Harwick, Justice Byron White (a JFK appointee) wrote for the majority:
Proscriptions against that conduct have ancient roots.... In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.... Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.
When Bowers was reversed 17 years later, in Lawrence v. Texas. Justice Scalia — the liberals' least (or second-least) favorite Justice — saw fit to quote those words in his dissenting opinion.
We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was "crazy" to harbor any doubts about the constitutionality of ObamaCare.
Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence....
Well, you'll feel better if you dance like Fred Astaire:
Here's Fred with the words to the Gershwins' "They All Laughed."
They all laughed at Rockefeller Center Now they're fighting to get in They all laughed at Whitney and his cotton gin They all laughed Fulton and his steamboat Hershey and his chocolate bar Ford and his Lizzie Kept the laughers busy That's how people are They laughed at me wanting you Said it would be, "Hello, Goodbye." But oh, you came through Now they're eating humble pie
But speaking of Robert Fulton and his steamboat, and who gets the last laugh, Fulton was a famous loser in the most famous Commerce Clause case of them all, Gibbons v. Ogden, and Fulton was on the side that argued for the narrow interpretation of Congress's enumerated power. Chief Justice John Marshall laid down the broad interpretation:
This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... [T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects....
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse.
This is the beginning of the line of expansive interpretation of the Commerce Clause that the proponents of health care reform will rely on as they take their case up on appeal to the 4th Circuit and, presumably, to the Supreme Court. We'll see who's dancing and who's eating humble pie then.
The new Supreme Court Justice describes the tour of the Court she got from Chief Justice John Roberts, beginning with the robing room:
She noted each wooden locker, including that of Justice John Paul Stevens, had a plaque displaying the name of the individual justice. By the time the 15 minute tour was completed Roberts brought Kagan back to the robbing room and Stevens’ nameplate had been replaced with her own.
ADDED: From the same interview (which will be on C-SPAN this Sunday):
Now, a very great man once said That some people rob you with a fountain pen It didn’t take too long to find out Just what he was talkin’ about A lot of people don’t have much food on their table But they got a lot of forks ’n’ knives And they gotta cut somethin’
Watch here. Chris Wallace does a great job of needling him about things Breyer's written about constitutional interpretation and, Breyer, as I'd expect, rises to the occasion. Breyer literally waves the Constitution around, in tiny booklet form, and figuratively waves around a bigger book, his book "Making Our Democracy Work."
Now, let's rummage through the transcript. Chris Wallace questions him about "just applying the law as written," and Breyer plugs in the expected elementary lesson about the concision of the phrases in the Constitution and the need to apply them in the changed circumstances of the modern world (airplanes! the internet!), and then Wallace displays the text of the 2d Amendment:
WALLACE: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms" -- the right of the people to keep and bear arms -- "shall not be infringed." Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago. You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.
Breyer, of course, is ready for this:
BREYER: Yes. Yes. That's a wonderful example because, of course, it's not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, "I've got to get this document ratified," was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.
There's some talk about judges acting like judges and how history can't answer some of the details. How do the old words and the old intent apply to new things? Breyer lists machine guns and torpedoes, and then, deviously, handguns. Wallace responds:
WALLACE: I understand. But it certainly didn't provide for a ban, at least that's what the court's decision was, your court's -- it didn't provide for a ban on all handguns as they have here in Washington, D.C.
BREYER: Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have...
WALLACE: But -- but it's...
BREYER: ... a gun.
WALLACE: ... but that's a policy issue. That's not a constitutional issue.
Breyer chooses not to jump on this point, perhaps because he'd have to say things that conservatives say. He'd have to promote federalism. Let me sketch it out.
If there isn't a right covering this particular subject, then state and local government will be able to legislate the policies that they, as a community, think are best. Yes, it's a policy issue, and — Breyer would say, if he'd gone on — that's why it's appropriate for legislative bodies to make decisions about it. If you don't like those decisions, the great thing about the United States is that you can move around and go to places that have policy preferences that suit your tastes. You have a right to travel and a right to change your residence to another state. And you also have the right to participate in politics, so there's also the alternative of trying to get the law in your state or city changed, so that handguns are not banned. Breyer's approach to the Second Amendment lets the people make the gun control laws what they want them to be and, when they do, they won't get caught up in litigation over the choices they make.
This is what conservatives say all the time about abortion and the separation of church and state (to cite the 2 most glaring examples). But here's Right Wing News — Chris Wysocki — excoriating Breyer for saying "get on the subway and go to Maryland."
Mind-boggling really, isn't it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!
Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right.
But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do. But think of something else, where you think the Court is wrong about saying there's a right — perhaps, for you, abortion — and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?
Wysocki continues:
So mister, what if you are in a wheelchair? This doctor's office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!
Whoa! You think the Constitution obliges private citizens, like doctors, to make their buildings wheelchair accessible?! That's so left-wing! Check your blog's name! What's the "Right Wing News" today, that righties have gone all lefty? That would be news!
***
(I have some more things to say about the Breyer interview, but I'll start a new post for that.)
CORRECTION: Sorry, I had "Chris Matthews" in the first sentence of this post. It's Chris Wallace.
The much-maligned Supreme Court decision came down, crushing the dreams of those of us whose hearts raced at the legal arguments that took the sound-bite form "count all the votes" and rankled at the other side's sound bite: "the votes have been counted... they've been counted and recounted."
Oh! How I wish I'd been blogging then. There were such interesting details every step of the way. Legal angles that could have been explained and examined. The reporting on the TV news was so biased and stupid. Things would have played out a lot differently if there had been legal bloggers picking through the fast-accumulating wreckage hour by hour. Instead we got those TV sound bites.
Have you noticed that you don't hear about "sound bites" — "5-second sound bites" — anymore? There's "viral video" now. Viral video and internet memes... and bloggers to call bullshit on mainstream media.
Ah, but what fun it would have been to have been calling the bullshit in the late autumn of the year 2000.
[Five companies] that were claimed to be the largest sources of greenhouse gases — four electric power companies and the Tennessee Valley Authority — were sued by eight states, New York City, and three land conservation groups...
Calling the potential impact of the nuisance theory “staggering,” the companies’ petition said that virtually every entity and industry in the world can be found to be partly responsible for some emissions of carbon dioxide, so they are potentially liable to be sued in climate changed nuisance lawsuits.
When it comes to carbon dioxide, we're all a damned nuisance.
The first question will be whether, under Federal court Rule 23, a lawsuit may seek a money verdict — in this case, a claim for back pay — when the class was created under a provision that limits remedies to corrective court orders, not money. Besides agreeing to hear that, the Court told the parties to file briefs and prepare to argue on a second question — whether the class was a proper one, under Rule 23, when it was cleared to go forward under Rule 23(b)(2)....
Wal-Mart’s petition had raised a second question that embraced the broader argument that no class should have been approved at all, since the claims made by the women employees were so disparate and so diffuse that they really had nothing in common, and that, as a result, Wal-Mart would not have been able to mount a defense to such claims....
The class approved in this case is the largest ever certified in a job bias context, but is also among the largest of any class certified in any case in federal courts....
The sex discrimination class-action case against Wal-Mart was actually started more than nine years ago as a race bias case involving a single company employee — Betty Dukes, a black woman who is a “greeter” at the company’s store in Pittsburg, Calif. It later became a class-action lawsuit with six original plaintiffs, including Dukes, contending that the company has engaged in pay and promotion discrimination against women throughout the chain.
Wal-Mart, which says its policies expressly bar discrimination and promote diversity, said the plaintiffs, who worked in 3,400 stores in 170 job classifications, cannot possibly have enough in common to make class-action treatment appropriate. “We are pleased that the Supreme Court has granted review in this important case,” Wal-Mart said in a brief statement. “The current confusion in class-action law is harmful for everyone — employers, employees, businesses of all types and sizes and the civil justice system. These are exceedingly important issues that reach far beyond this particular case.”...
Brad Seligman, the main lawyer for the plaintiffs, said Monday that plaintiffs welcomed the court’s review of the limited issue and were confident that the justices would rule in their favor. “Wal-Mart has thrown up an extraordinarily broad number of issues, many of which, if the court seriously entertained, could very severely undermine many civil rights class actions,” Mr. Seligman said.
The decision in the 9th Circuit was written by Judge Michael Daly Hawkins — who, incidentally, is one of the judges in the Prop 8 case. (I spent what seems like the entire day listening to the oral argument in that case.)
[W]riting for the majority, [Hawkins] said the company’s policies and treatment of women were similar enough that a single lawsuit was both efficient and appropriate....
[Dissenting, Chief Judge Alex Kozinski wrote:] “Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers”....
“They have little in common but their sex and this lawsuit,” Judge Kozinski concluded.
Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: “I’m old and falling apart.”) I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.
This is a not-too-subtle hint to the older Justices to retire. Please vacate your seats and give some younger folks a shot. And give the young President an appointment. See? We will notice you as you go about giving innocuous speeches and publishes simple enough essays in the New York Review of Books — especially if you tell us you wish you voted differently on some case we journalists disapproved of or indicate you "her dismay at seeing some of her own work 'dismantled' by the current court." Come on out here where we can help you burnish your reputation.
UPDATE: I rewrote the headline, because it was so boring I was afraid no one would read through to the possibly amusing sarcasm.
Yes, it's also the 10-year anniversary of the big Florida recount. I wish I'd been blogging then! It would have been so much fun to write about that every step of the way. I'd have liked to show you in real time that I really wanted my guy, Al Gore, to win, and I also accepted nearly everything the Supreme Court did in the complicated litigation over the recount. But there are so many missed blogging opportunities in the past. I'd have loved to have blogged the Clinton scandals too. And the Clarence Thomas hearings. The Bork hearings.
As if things couldn't get any weirder, did you notice the name of the lawyer who made the Republicans' unsuccessful arguments before that federal judge today? That would be Ted Olson, a man Washingtonians often refer to as a 'Washington super-lawyer.' Who is Ted Olson? Well, that would be the same one knee-deep in the Arkansas Project, which in league with the American Spectator spent a ton of money digging dirt on Bill Clinton in Arkansas....
Well, now, isn't that weird? I just blogged this morning about that Think Progress blogger who confronted Justice Alito and he was going on about the Arkansas Project:
Last night, the American Spectator — a right-wing magazine known for its role in the “Arkansas Project,” a well-funded effort to invent stories with the goal of eventually impeaching President Clinton — held its annual gala fundraising event....
That first TPM post wove Justice Scalia into its conspiracy-ish riff:
Of course, Olson... is also the Olson from Morrison v. Olson, the supreme court case which upheld the constitutinality of the Independent Counsel statute. Olson was against it. Come to think of it, we Dems now think he and Scalia were right. So maybe chalk one up in his favor.
So that's how TPM first talked about law. Yikes. Spelled "constitutionality" wrong too.
I'm going to start reading the lefty blogs more and writing about them, I think. I'm interested in the way they string ideas together, and I think they need some more push back.
I'm going to click through all this, beginning with Herman Melville at #100 — he's "the American Shakespeare." Come with me. #99 is Nixon! Why's Nixon only 99? I know. He's ugly. And we hate him. Have to click to 86 to get to the first woman. It's Mary Baker Eddy, who, of course, influenced health care reform. Another lady at 81. It's Margaret Mead, famous for being had by 3d world pranksters. Nothing more American than that. A woman at 77: Betty Friedan. I never read her book. I thought it was for my parents' generation. My — my my my — generation transcended sex roles. We were star dust, we were golden.
Frank Lloyd Wright is 76. Architects may come and architects may go, and never change your point of view. Not Frank. He'd sock you in the head with a low-hanging roof as soon as look at you. He was from Wisconsin. That's important. So was Georgia O'Keeffe, who might be on this list. She's a woman, you know. 20 bonus points for being a woman? Here's Jane Addams at 64. Another woman. And I, your humble female blogger, would like to register a complaint against my high school speech teacher who rejected my proposal to do a speech on the topic of Jane Addams. He said she wasn't important enough. I used to want to be a social worker.
Oliver Wendell Holmes Jr. is 53. The only judge so far. Another woman at 51: Margaret Sanger. (A "thoroughgoing racist" says Jonah Goldberg.) Not too many Presidents. After Nixon, you have to wait until #44 for another President. It's Lyndon Johnson. I call him "LBJ." Works better in rhyming chants. LOL! It's Eleanor Roosevelt at #42. "She used the first lady’s office and the mass media to become 'first lady of the world.'" Women playing the media to focus attention on themselves. Yeah, I guess that's a big deal in American culture. She's responsible for that? All right then.
Harriet Beecher Stowe. #41. The power of novels. Rachel Carson is #39. She saved the eagles... and the mosquitoes. Susan B. Anthony is 38. Elizabeth Cady Stanton is #30. Women's rights. Earl Warren is 29. A second judge. Eisenhower is 28. A third President. Eli Whitney deserves to be 27: "His gin made cotton king and sustained an empire for slavery."
John Adams at 25? Come on? Is HBO/David McCullough the arbiter of history? But yeah, he was President. Truman is 21. A 5th President. Man, get a David McCullough biography about you to cement your historical importance. Andrew Jackson is 18. A 6th President. Reagan's 17. That's 7. Theodore Roosevelt is 15. The 8th Prez on the list, and the 2d of what I predict will be 3 Roosevelts. James Madison is 13. The 9th President, a Founding Father. Ulysses S. Grant gets to be 12. A 10th Prez. And he won the war. Woodrow Wilson is #10 and the 11th President on the list. Martin Luther King Jr. is only #8. John Marshall is #7, the 3d judge. Ben Franklin is 6, deservedly. Another Founder at 5: Alexander Hamilton. FDR snags #4 and is the 12th President on the list. Jefferson is #3, so you know who ##1 and 2 are. And Lincoln beats Washington for the top spot. A total of 15 Presidents.
The final count for women was 10. 10 out of 100. (I think.) Fair enough. I'm not going to say there should have been more. If they'd counted femaleness as a plus factor, they'd have had to "plus-factor" a lot of other groups, and they didn't. Not one Native American?! That's politically incorrect.
ADDED: Actually there were a couple more Presidents, Polk and John Quincy Adams. I'm noticing this leaning over Meade's shoulder as he clicks through. Sorry. My effort was studiously haphazard.
"While I know Harriet would have made a fine justice, I didn't think enough about how the selection would be perceived by others," Mr. Bush writes. "I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington."...
--After he tapped Roberts for chief justice when William Rehnquist died, he only considered women candidates to replace O'Connor. "I didn't like the idea of the Supreme Court having only one woman."
But Roberts was originally picked for the O'Connor position. The idea of appointing a woman, then, didn't matter all that much.
--There were "frustrating roadblocks" for most of the women candidates. When several senators said they were impressed by Miers, he concluded "she would make an outstanding justice." Miers was "shocked" when he asked if she was interested.
--No one in the White House ever suggested conservatives would revolt over her nomination. Bush suggests the opposition was elitist because Miers didn't go to an Ivy League school and "is not glib."
In addition to Miers, Bush says he considered Patricia Owen, but he thought Miers would be easier to confirm. After all the trouble with Miers, he switched to Alito, who, he writes, was "ill at ease" with Bush at first. Bush relaxed him by talking about baseball.
Bush says wanted to avoid appointing another Souter — Souter, who disappointed Bush's father, by "evolv[ing] into a different kind of judge."
--Roberts was not the unanimous choice. Vice President Cheney and Attorney General Alberto Gonzales backed Judge Mike Luttig. Miers supported Alito. Chief of Staff Andy Card and adviser Karl Rove favored Roberts. (Which means J. Harvie Wilkinson and Edith Brown Clement, the other two contenders early on, didn't have prominent backers.)
--Brett Kavanaugh, now a federal appeals court judge, told Bush Luttig, Alito and Roberts would all be solid justices. He suggested Bush ask a "tiebreaker question" of which man would be the most effective leader. To Bush, that was Roberts.
It seems that Roberts has a special appeal to Bush, who liked his "gentle soul" and "quick smile."
THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.
See? Infuriating. He's the President. He took an oath to "preserve, protect and defend the Constitution of the United States" — "to the best of [his] ability." He won the Presidency in part because of his high achievement at Harvard Law School. He accepted responsibility for the U.S. military. His administration is fighting to defend DADT in courts. This issue didn't pop up yesterday, so his answer couldn't possibly be "just off the top of [his] head. He sure as hell better have an answer to the question. This preamble to his answer is therefore either a lie or an outrage.
I think that -- but here’s what I can say.
Thanks for revealing that you know you are withholding what you really think.
I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned -- something that’s unprecedented.
That's his canned answer, which was also served up at the MTV townhall. It's completely nonresponsive to the question.
And so my hope and expectation is, is that we get this law passed. It is not just harmful to the brave men and women who are serving, and in some cases have been discharged unjustly, but it doesn’t serve our interests -- and I speak as Commander-in-Chief on that issue.
If you really believe it is that harmful and unjust, then how do you resist the conclusion, under the case law, that it is unconstitutional? Even at the level of minimal scrutiny, what is the rational basis for this law? You are saying — in so many words — that there is no rational basis, so why do you not conclude that it is unconstitutional? Are you lying when you intone your criticism of DADT, or are you lying when you purport to adhere to the sort of constitutional analysis that is done by the kind of people you nominate to be on the Supreme Court?
Are you trying to say you'd have joined Justice Scalia's dissent in Lawrence v. Texas? Here's Scalia: "What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change. It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress,'; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best." Hello? That's what Obama is saying about Don't Ask, Don't Tell.
Back to the transcript:
Let me go to the larger issue, though, Joe, about disillusionment and disappointment.
Oh, yes! The larger issue is how people feel about Barack Obama. Constitutional rights just aren't that large compared to the grand question of Me. And apparently Joe doesn't have the nerve to stop the President and point out that there has been no answer to the question. The President has called him by name and wants to talk about his feelings.
I guess my attitude is that we have been as vocal, as supportive of the LGBT community as any President in history....
But no other President directly inspired the hopes of gay people and won big support with promises like you did. You're not even saying that you're better than all those other Presidents, only that none of them were any better. Your support for "the LGBT community" is as good as George Washington's. Thanks a lot.
On “don’t ask, don’t tell,” I have been as systematic and methodical in trying to move that agenda forward as I could be given my legal constraints, given that Congress had explicitly passed a law designed to tie my hands on the issue.
Admit it: You love having your hands tied like that. Because you're fighting against a legal decision that deemed DADT unconstitutional! The rope of legislation was untied, and here you are begging for other judges to tie you back up again. Don't ask me to believe you don't love the bondage.
And so, I’ll be honest with you, I don’t think that the disillusionment is justified.
I'll be honest with you... Speaking of Don't Ask, Don't Tell. That's a "tell." He's lying. "I’ll be honest with you" means I'm about to lie to you.
Now, I say that as somebody who appreciates that the LGBT community very legitimately feels these issues in very personal terms. So it’s not my place to counsel patience. One of my favorite pieces of literature is “Letter from Birmingham Jail,” and Dr. King had to battle people counseling patience and time. And he rightly said that time is neutral. And things don’t automatically get better unless people push to try to get things better.
Speaking of time, he's really trying to run the clock out on this interview. He's also, I imagine, ashamed of what he finds himself needing to say. He wants to identify with King, but he knows he's on the wrong side of King when he asks gay people to wait longer. Obama sounds like an old man rifling through his memories for something relevant to say. He calls “Letter from Birmingham Jail" "[o]ne of my favorite pieces of literature" — as if it's all about him and people who are waiting for their rights to be recognized are fascinated by what pleasure reading he enjoys. Under the circumstances of this conversation, “Letter from Birmingham Jail” is or should be nagging at his conscience. ("Now is the time to lift our national policy from the quicksand of ... injustice to the solid rock of human dignity.")
So I don’t begrudge the LGBT community pushing...
Begrudge! That he would even think of that word suggests these people are annoying him!
... but the flip side of it is that this notion somehow that this administration has been a source of disappointment to the LGBT community, as opposed to a stalwart ally of the LGBT community, I think is wrong.
The short answer to Sudbay's original answer was: Don't Ask.
Q So I have another gay question. (Laughter.)
THE PRESIDENT: It’s okay, man. (Laughter.)
I am resisting typing curse words here. Look at Sudbay abasing himself. Now these rights he must care about are reduced to jocose "gay questions." Something to laugh at. There indeed was a time, and it was not too long ago, that the idea of gay rights itself seemed funny to people. And Sudbay allows himself to get pushed back toward that place. The President treats the remark as if it were an apology. He says "It's okay, man." Man. See? He's a cool guy. He's taming Sudbay.
Q And this one is on the issue of marriage. Since you’ve become President, a lot has changed. More states have passed marriage equality laws. This summer a federal judge declared DOMA unconstitutional in two different cases. A judge in San Francisco declared Prop 8 was unconstitutional. And I know during the campaign you often said you thought marriage was the union between a man and a woman, and there -- like I said, when you look at public opinion polling, it’s heading in the right direction. We’ve actually got Republicans like Ted Olson and even Ken Mehlman on our side now. So I just really want to know what is your position on same-sex marriage?
Another good question. Sudbay came prepared. Let's see if he lets Obama push him back again.
THE PRESIDENT: Joe, I do not intend to make big news sitting here with the five of you, as wonderful as you guys are. (Laughter.) But I’ll say this --
Q I just want to say, I would be remiss if I didn’t ask you this question.
THE PRESIDENT: Of course.
Q People in our community are really desperate to know.
Oh, don't beg, Joe. Don't apologize.
THE PRESIDENT: I think it’s a fair question to ask.
That's big of him.
I think that -- I am a strong supporter of civil unions. As you say, I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.
Check out those weird plurals: understandings of the traditional definitions. That's another tell. He is lying, I presume. His opposition to same-sex marriage is, quite simply and obviously, politically expedient. It is impossible for me to believe that Obama, coming from his academic background, is hung-up on the traditional definition — or "definitions" — of marriage. He's posing as a seeker of truth, slowly coming round.
But I also think you’re right that attitudes evolve, including mine.
Attitudes? I thought he was into traditional definitions.
And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents.
So is he saying that previously he had an attitude that was antagonistic to gay people and by extensive social contact with gay people, he came around to perceiving them as fully human? I just don't believe that. And if I did, I would think less of him.
And I care about them deeply.
You know, your position on the rights of others should not depend on whether they are your friends. That's not the way law works. People have rights whether you care about them or not. And rights don't spring into existence because you care about the people who want them.
And so while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about. That’s probably the best you’ll do out of me today. (Laughter.)
Laughter. Oh, it's so lovely sitting with the President in the Roosevelt Room. Something that I think a lot about. Men have thought more clearly in jail.
Later, the conversation comes back to DADT, and the President intimates that he will try to push its repeal during the lame duck session of Congress. He makes an effort to shift the blame to the Republicans, especially John McCain, and he indicates that it will be a problem getting the votes for cloture. (He loves that problem, I'll bet. It's so helpful to appear to want to act and have your hands tied.)
He wonders why the Log Cabin Republican are pursuing their court case, when they could instead try to get a few Republican Senators to vote for repeal. He says he doesn't "understand the logic of" using the courts when you could go to Congress, but of course he does. People conceive of their equality in terms of their individual rights — which don't depend on the support of political majorities and supermajorities. As a Harvard-trained lawyer and sometime law professor, he knows that. He knows why people go to courts. I don't buy his understanding of the logic. Or should I say his understandings of the logics?
