Eight Justices Out

Much has been made since Justice Kagan’s nomination last year of her high recusal rate this term due to her participation as Solicitor General in many cases now before the Court.  This morning, however, the Court issued its latest order list that features an inversion of the usual recusal pattern for this term:

In this petition against Justice Thomas, I’m left wondering here why Justice Kagan was left the last justice standing.  After all, she has sat on the bench with Justice Thomas for the better part of a term now, and the other justices appear to have taken no part in considering this petition solely on the basis of potential collegial bias.*  Is there some arcane one-year rule in the Court’s internal procedures that was written for this very scenario?  What would have happened if the Court received this petition next term or the term thereafter?

As for the petition itself, Petitioner Kenneth L. Smith appears to be a serial pro se litigant on a mission to oust Article III judges for violations of their good behavior tenure.  This petition against Justice Thomas, then, came to the Court at an opportune time as Justice Thomas has been mired in ethics attacks for months.  While I cannot find his cert. petition in Smith v. Thomas, I have found another recent brief to the Tenth Circuit against Senior Judge Stephen H. Anderson.  In the brief, Smith colorfully presents his other cases against judges over the past decade:

*UPDATE: QED and Joe in the comments did the due diligence to dig up the docket listing for Smith v. Thomas at the D.C. Circuit.  Turns out Smith brought suit against every sitting justice in October 2009.  Therefore, the mass recusal today was not because of perceived bias in favor of the named defendant, Justice Thomas, but rather that all eight justices (and former Justice John Paul Stevens) were also defendants.

QED’s link didn’t work for me, so here’s a cached copy.  And here is the District Court’s order granting the justices’ motion to dismiss.  Turns out, as Joe points out below, that the suit was not an effort to remove the justices, but rather an effort to seek “a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.”

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Scalia Returns to Form, Thomas Sucker Punches Scalia’s Prodigality

Today’s unanimous decision in NASA v. Nelson–see here for my oral argument recap from October–held that the government has the power to conduct full background checks despite the argument by employees of NASA’s Jet Propulsion Lab that parts of those checks violate their right to “informational privacy.”

Writing for six members of the Court, Justice Alito refused to address whether such a right actually exists, and instead assumed its existence for the sake of rejecting its application to the JPL employees’ claims.  Justices Scalia and Thomas, however, refused to go along with this compromise resolution.  Instead, Scalia, in a separate concurrence joined by Thomas, returned to form with a bruising critique of the Court’s “substantive due process” jurisprudence–the very jurisprudence he adopted to extend the Second Amendment to the states in last year’s oral argument and plurality opinion for McDonald v. City of Chicago.

Nevertheless, Justice Thomas wouldn’t let Scalia return to the fold without reminding Scalia of his last year’s prodigality from their bedrock principles.  I’ll let Josh Blackman take it from here:

Scalia’s opinion returns to his usual antagonism towards substantive due process. Not even a single citation to McDonald. No attempt to reconcile his aberrant opinion in the famed gun case. I suppose that McDonald will be the new Gonzales v. Raich, and we should “just get over it.” (that is Scalia’s common refrain when people ask him to reconcile Raich). As recently as last week, Scalia joined a Thomas dissent from denial of cert, other than a footnote that relied on Raich. As I have written at great length, Scalia’s opinion cannot be explained here. His position is at odds with two decades of jurisprudence, and he makes no effort to explain it. While Thomas cites to McDonald, Scalia ignores it. Scalia’s acquiescence to substantive due process in McDonald cannot be reconciled with his animosity towards that “plastic” standard.

Justice Thomas wrote his own curt one paragraph concurring opinion in judgment.

“I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissent-ing) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . .” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring ofunenumerated rights against the Federal Government “strains credulity foreven the most casual user of words.” McDonald v. Chi-cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).”

What does Thomas’ concurring opinion add? Thomas focuses on the fact that the due process clause does not protect unenumerated rights, suggesting that it can protect enumerated rights. Perhaps he is trying to provide cover to Scalia, who joined McDonald’s due process opinion. As I have theorized before, because the Second Amendment is actually enumerated, Scalia may find this approach palatable. I find this distinction unpersuasive. As I have argued before, whether the right is enumerated, or unenumerated, the Court still needs to rely on some nebulous notion of liberty. Thomas may be trying to explain Scalia’s opinion, where Scalia would not do so specifically. In my mind, its not effective. Regardless, not even Thomas would accede to relying on the due process clause to protect an enumerated right. To quote my good friend Mike Sacks, this concurring opinion can best be characterized as a “sucker punch.” Ouch.

The standoff continues.

Kagan’s First Opinion; Scalia cites Foreign Law

Just a few quick thoughts before I get back to bar studies:

• Justice Kagan’s first opinion is in the first case she heard on the Supreme Court.  True to tradition, it’s a dog of a case.
• Justice Scalia is the lone dissent, breaking from the tradition of unanimity for a new justice’s first opinion.  Last year, Justice Thomas concurred in part in Justice Sotomayor’s first opinion.  Does two years away from the tradition mean it’s no longer a tradition?
• Kagan wasted no time getting into a footnote scuffle with Scalia over the textual relevance of consulting the IRS’s “Collection Financial Standards”:
  • Kagan, fn7 – “Because the dissent appears to misunderstand our use of the Collection Financial Standards, and because it may be important for future cases to  be clear on this point, we emphasize again that the statute does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.).  The dissent questions what possible basis except incorporation could justify our consulting  the IRS’s view, post, at 4, n.,  but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day.  The agency might,therefore, have something insightful and persuasive (albeit not controlling) to say about them.
  • Scalia, fn* – “The Court protests that I misunderstand its use of the Collection Financial Standards.   Its opinion does not, it says, find them to beincorporated  by the Bankruptcy Code; they simply “reinforc[e] our conclusion that . . . a debtor seeking to claim this deduction must makesome loan or lease payments.”  Ante, at 10.  True enough, the opinionsays that the Bankruptcy Code “does not incorporate the IRS’s guidelines,” but it immediately continues that “courts may consult this material in interpreting the National and Local Standards” so long as itis not  “at odds with the  statutory language.”   Ibid.  In the presentcontext, the  real-world difference between finding  the guidelines incorporated  and finding it appropriate to consult them escapes me, since I can imagine no basis for consulting them unless Congress meant them to be consulted, which would mean they are incorporated.  And without incorporation, they  are  at odds  with the statutory language, which otherwise contains no hint that eligibility for a Car Ownership deduction requires anything other than ownership of a car.”
• Does citing midcentury UK law count as a dreaded citation to foreign law?  Scalia: “The canon against superfluity is not a canon against verbosity.When a thought could have  been expressed more concisely, one  does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with.  This has always been understood.  A House of Lords opinion holds, for example, that in  the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.  Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A. C. 601, 607.”

Back to the barstuffs.

At Close Range

READER DISCRETION ADVISED:

THIS POST IS RATED “M” FOR MATURE.

FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.

First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench.  How close?  For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:

For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment.  And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.

Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother.  Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow.  His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent?  Comic books?  Movies?  Rap Music?  Bugs Bunny?

From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini.  If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.

But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry.  Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors.  At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism.  With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”

At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.”  But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”

Morazzini wasn’t destined to survive this onslaught.  Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech.  When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him.  Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.

Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument.  But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play.  Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty.  The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.

To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.

Graphic violence. There is a difference.  We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description:  Pour gasoline over them, set them on fire and urinate on them.  We do not have a tradition in this country.  We protect children from that.  We don’t actively expose them to that.

With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith.  Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:

And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?

Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest.  Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away.  Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.

Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground.  The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past.  And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.

The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning.  For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?”  But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.”  These are words of condemnation, not of endorsement.  They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start.  And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.

But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court.  Today, all that mattered was that more justices killed more of California’s law than they did its challengers.

Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice.  Said Sotomayor:

So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle.  Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.

Just temporarily is right.  Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.

Nonviolence for Violence: Some Scenes from a Protest

I’m off to class now, but I hope to get my recap of the Schwarzenegger v. EMA argument up at a reasonable hour.  Briefly, the California lawyer got mercilessly pummeled by Sotomayor, Scalia, Ginsburg, Kagan, and Kennedy, while Roberts stayed almost completely quiet for the first half-hour, only to be EMA’s prime antagonist during the second half-hour.  Breyer joined Roberts in support of the CA law, while Alito, who had sharply questioned CA, more sharply questioned EMA.  Alito also had some lighthearted, but jurisprudentially serious, quips towards Scalia on the limits of originalism for First Amendment cases concerning media never imaginable in 1791, let alone 1951.

Until then, here are some scenes from the sidewalk:

 

God Damn Constitution

Snyder v. Phelps attracted more press and general public than I have seen in my time covering the Court.  Granted, no abortion cases or Presidential elections have come up since I started F1@1F, but even last term’s campaign finance and gun rights blockbusters couldn’t compete with today’s scene.

The upshot, however, is that those cases yielded landmark decisions, while Snyder will bring nothing of the sort.  If there’s any lesson at all to be gained from this morning’s oral argument, it’s a reassertion of the truism that bad facts–or, in this case, exceedingly unique facts–make bad law.

The issue in this case is whether the father of a fallen marine may seek damages for intentional infliction of emotional distress against Fred Phelps’s Westboro Baptist Church for picketing the soldier’s funeral with signs reading, “Fag Troops” and “Thank God for Dead Soldiers.”

From these facts, the justices struggled to find a principle upon which they could base their ultimate decision.  On the one hand, the Court is loath to carve out new exceptions to speech protected by the First Amendment.  Try putting “funeral protests far enough away not to be seen or heard by the mourners” at the end of the famous Chaplinsky dicta from 1942 enumerating unprotected speech: “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.”  Stands out like, well, a picketer at a funeral.

On the other hand, the justices are human, and what humans, spare the Phelps family, wouldn’t sympathize with Al Snyder’s suffering?  But try as they might, the justices were simply unable to shoehorn the Phelps family’s practices, as applied to Matthew Snyder’s funeral, into any of the Chaplinsky categories.

Justice Antonin Scalia latched onto the “fighting words” doctrine, only to be systematically disabused of the idea by Margie Phelps, Fred Phelps’s daughter and WBC’s lead counsel.  She not only defied Scalia with the Court’s definition of “fighting words” that proved the doctrine inapplicable, but also reminded him that “[n]o element of the tort under which liability attached included fighting words.”

Justice Stephen G. Breyer also took his turn, invoking the WBC’s speech against Matthew Snyder on its website and on television as something akin to defamation.  Sean Summers, Snyder’s counsel, went along with Breyer, but Justices Ruth Bader Ginsburg and Sonia Sotomayor simultaneously jumped in to remind Summers that defamation–which revolves around a statement’s truth or falsity–was not the tort at issue.

Finding no quarter for funeral with pre-existing categories of unprotected speech, Breyer sought refuge in his familiar balancing tests, suggesting ways to allow the tort of intentional infliction of emotional distress “to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”

But Breyer is a lone wolf when it comes to First Amendment pragmatics.  Where he seeks to balance interests, the other justices simply want to decide whether the WBC’s speech is protected or not.

Justice Alito, the sole dissenter in last year’s United States v. Stevens, in which the Court genuflected to the First Amendment in striking down a federal statute criminalizing depictions of animal cruelty, appeared the most willing to deem the funeral protest unprotected.  He brought new relevance to the WBC’s website, using its attacks on Matthew Snyder as context to rebut the Phelps’s argument that the funeral protest was directed towards the nation and not Snyder’s family.

Moving on, Alito unloaded a hypothetical on Phelps:

Let’s say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED. And she goes to visit her son’s — her grandson’s grave, and she’s waiting to take a bus back to her home. And while she’s at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do? Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it. And on and on.

Now, is that protected by the First Amendment? There is no false statement involved and it’s purely speech.

By the tone of his voice, Alito clearly thought such a diatribe on an old, defenseless woman–“a Quaker, too,” by Scalia’s surmising–was unprotected.  When Phelps proved hypo-proof on that scenario, drawing the justices back to the case’s specific facts despite attempts by Chief Justice John G. Roberts and Justice Elena Kagan to recognize a limit to vile speech of some public concern, Alito upped the ante:

Suppose someone believes that African-Americans are inferior, they are inherently inferior, and they are a really a bad influence on this country. And so a person comes up to an African-American and starts berating that person with racial hatred. … That’s a matter of public concern?

Phelps said yes, it is, as long as the racist doesn’t get “up close and in their grille.”

At this point, Justice Anthony M. Kennedy sprang forward, only now sensing the potential for one’s self-definition and dignity in the universe being threatened.  Noting that “all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young,” Kennedy feared that if any of these components are of public concern, there is no limit to the damage the WBC might do to innocent bystanders for the sake of maximum exposure.

Yet for all the doubt the justices expressed towards the WBC’s claims of constitutional protection, Snyder’s argument simply could not carry the day.  Challenged by Justice Kagan to articulate a standard for how to determine which protests “glomming to a private funeral” should or should not fall outside of the First Amendment, Summers could articulate no governing principle.  Ultimately, it seemed, Snyder sought not a general rule of law, but rather a Constitutional carve-out for his own grief.  Such personalized positions are not the stuff of Supreme Court precedent.

In the end, while Summers faltered, Margie Phelps refused to be pinned down.  Her arguments that Snyder himself made his grief of public concern in a statement to the press following Matthew’s death–thereby making him fair game for a protest on the nation’s tolerance of homosexuality, which was staged 1000 feet away and out of his ear- and eyeshot so to comply with local ordinances–were too solid for anyone committed to robust free speech principles to deny.

Should the Court, as appears likely, hold its nose and side with the Phelps’s, then this case will stand for a principle older than the First Amendment and our Constitution itself: it’s always good to have a lawyer–or sixteen lawyers–in the family.

The Pragmatics of Informational Privacy

The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.

The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.

In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction.  Problem was, they clashed over strategy.

Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.

“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired.  When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”

Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in.  Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.

“The only thing that’s in contention there is the question about treatment or counseling.  Nothing else.  So why are we talking about the universe of questions that might be asked?”  It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.

But the conservatives weren’t interested in narrowness or broadness.  Not yet.  They wanted to know a little more about this right of “informational privacy” thing.

Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”

Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.

So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch.  With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee.  Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism.  Big mistake.

“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.

And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.

If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.

Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.

But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals.  When Stormer conceded that the government should know that information, Alito shot back.  If open-ended questions are forbidden, he asked, then how does the government get at that information?

“Do you have to have a specific question on the form?” wondered Alito.  One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”

Alito’s point was as funny as it was devastating.

Vox Populi: October Rain

I opened my front door this dark morning to a chilly gust of autumn air spitting rain in my face.  “Don’t make a habit of this, Justice Kagan,” I thought to myself.

Mother Nature has not seemed to take kindly to Elena Kagan’s milestones.  On the day of her confirmation vote, a ferocious thunderstorm crashed through Capitol Hill in the time the Senate took to open and close its voting.  Now, on the heels of Washington’s first glorious fall weekend, rainclouds insist on overseeing the entirety of Kagan’s debut week on the bench.

But Mother Nature is not the newest justice’s final arbiter.  As the dreary day broke on One First Street this morning, scores of umbrellas shielded men and women waiting for their opportunity to give Justice Kagan a more hospitable welcome than the elements afforded.

Of all those who showed up to witness the new justice’s historic first day of court, however, one man stood out.

“You’ve got to meet Graham,” said Ryan Malphurs, who arrived shortly before 4am.  A newly-minted Ph.D. in Communications, Malphurs has attended around 60 oral arguments since 2006, traveling from Texas each time, to conduct research for his dissertation on the justices’ power of persuasion at oral argument.  Back again to continue his work as he expands his dissertation into a book, Malphurs introduces his friend.

Graham Blackman-Harris, 44, is the ultimate Court-watcher.  Hailing from Jersey City, NJ, he made his first trip to the Court in 1990.

“I wanted to see Thurgood Marshall on the bench before he retired,” says Blackman-Harris of his first in-person encounter with the Court.  “He looked like a giant.”

Since then, he’s made all but two First Mondays in October.

Forget doctoral students, forget stunt-bloggers, forget lawyers: Blackman-Harris truly embodies the civic passion so evident among the Court’s most ardent followers.  A FedEx Operations Manager and self-professed C-SPAN junkie, he cites 1998’s Clinton v. City of New York as his favorite case because he had followed its issue—the constitutionality of the line-item veto—since the bill’s birth in the Senate.

“I’ve read the Constitution a bajillion times,” he says with a laugh.  “I love it.  Even the three-fifths part”—referring to the infamous clause writing slavery into the founding document—“because the 13^th, 14^th, and 15^th Amendments corrected it.”

After his first trip to the Court, Blackman-Harris began his First Monday tradition in 1991 with the intention of seeing Justice Clarence Thomas’s debut.  The Anita Hill allegations, however, served to delay the Senate’s confirmation of Thomas until mid-October.  He has been luckier in later years, witnessing Justices Ginsburg, Breyer, Sotomayor, Kagan, and Chief Justice Roberts all make their first appearances.

Still, Justice Thomas occupies a large swath of Blackman-Harris’s highlight reel.

A year after Thomas joined the Court, the justice continued to face antagonism in the press.  Blackman-Harris, who, like Thomas, grew up quite close to his grandfather, wrote the justice a letter telling him to “keep his chin up.”

Thomas wrote back with a personal thank you note.  Since then, Blackman-Harris has written every other justice but never received anything more than a form letter in return.

“I don’t believe in a lot of the things Justice Thomas believes in,” says Blackman-Harris, “but I didn’t think it was fair” for the justice to get attacked for his conservative jurisprudence.  “The Constitution, that sweet document, entitles [Thomas] to his beliefs.”

And Blackman-Harris can count himself among the few lucky members of the public to have seen with his own eyes one of the few moments that Justice Thomas has expressed his beliefs in the form of a question during oral argument.

“The whole courtroom just went quiet,” he remembers.  That’s saying something for a place where library-silence is always maintained.

Indeed, he wishes that all Americans could witness moments like that.  To back up his belief, he has written additional rounds of letters to the justices urging them to televise their proceedings.

But it should be apparent by now that for Blackman-Harris, C-SPAN’s “America and the Courts” is simply not enough.  This year, he showed up on a crutch, hobbled by hip problems.  “I was going to crawl if I had to,” he says.

His commitment to his visits for First Mondays and landmark arguments runs deeper than mere interest.  For this man from Jersey, it’s personal.  “This is my Court!” he exclaims as we enter the building.

Graham Blackman-Harris, in his deep devotion to the American idea, proves how inconsequential everyday setbacks like injury or inclement weather really are to the success of the American spirit.  From the Founders scrapping the Articles of Confederation for the Constitution during a stiflingly hot Philadelphia summer to our first African-American President’s inauguration on a frostbitten Washington winter morning, we and our leaders push forward against the elements into each new chapter in our country’s history.

And judging by Justice Kagan’s performance today—poised, comfortable, and perfectly fluid in a bankruptcy case, no less—she and her audience need not regard a trifling turn in the weather as a bad omen for her decades of service to come.

Marriage, Not Gay Marriage – says Judge Walker

I’m speed-reading through the Prop 8 case decision that just invalidated the ballot measure as violating the 14th Amendment’s Due Process and Equal Protection Clauses.  Judge Walker framed his decision not as creating a new right to gay marriage, but rather a vindication of the institution of marriage itself:

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages. (p. 114)

And because the Supreme Court has long held that marriage is a fundamental right, and holds that California’s domestic partnership alternative for same-sex couples is no substitute for that fundamental right.  Walker then applies strict scrutiny to the plaintiffs’ claims and concludes that Prop 8 violates the Due Process Clause of the 14th Amendment, largely because he held in the findings of facts that the defense’s witnesses were “unreliable and entitled to essentially no weight”:

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”  Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

On the Equal Protection front, Walker did not assign a heightened level of scrutiny to gays and lesbians, abiding by the Supreme Court’s refusal to cast equal suspicion on classifications based on sexual orientation as those based on gender or race.  But sexual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

Walker provides an example of this leveling of rational basis and heightened scrutiny by collapsing sex and sexual orientation discrimination into each other:

Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

In doing so, he also pulls out a nugget from Justice Ginsburg’s Christian Legal Society opinion that some seized on several weeks ago as a gay marriage “time bomb” in dicta:

Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583 (O’Connor, J, concurring)). [my emphasis]

Just for the sake of it, though, Walker does explicitly intimate his belief that even though he is applying rational basis, strict scrutiny is appropriate:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

This note, however, is more evidence that levels of scrutiny collapse when one recognizes animus-driven actions for what they are.  More searching review may come in time for less overtly hostile acts and practices, but hopefully by that time, there will be no more suspect classes and only suspect actions.

A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal.  Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court.  As opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges.  For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related.

But for unanimity’s sake, Kennedy, or maybe a justice or four in the liberal bloc, would be well-advised to latch onto Walker’s Equal Protection analysis as well.  Under this analysis, Scalia has already accepted gay marriage as an legal inevitability, per his Lawrence concurrence:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

Of couse, gaining Scalia’s vote–even in an exasperated concurrence–is wishful thinking.  But at least the Court’s putative majority in Perry v. Schwarzenegger, — U.S. — (2013) will take pleasure in quoting him, as Walker did in his Finding of Fact 21(c) on page 61 of his 136-page opinion:

Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”)

Nevertheless, there always does remain the chance that this putative majority may turn to mush in the face of a federal right to same-sex marriage, whether or not Walker’s framing survives the Ninth Circuit’s go-round.  And as I wrote after the Massachusetts DOMA cases:

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

We must remember that even though Kennedy likes his rights robust, he has also become the limiting agent to the abortion right he helped preserve in Casey.  But there is a difference between the gay rights Kennedy has helped protect in Romer and Lawrence and the abortion rights he has since restricted since Casey: gay marriage, unlike abortion, has no dauntingly actual life-or-death element.

Yet as a matter of political consequence, a critical mass of states has not yet come to pass on gay marriage.  With only a handful of states and the District of Columbia recognizing same sex marriage, Perry may be more Roe than Loving, and I imagine that every member of the Court will have that in mind when considering the case.

What is certain is that same-sex marriage is gestating in the states, however few have so far endorsed it.  The question, then, will be whether Kennedy sees Walker’s opinion as a new birth of freedom for a class long robbed of its dignity, or as a grisly killing of viable progress throughout the states’ slow and steady political processes.

Of AfPak, Pomegranates, and Pentagon Papers

The Pentagon Papers case has been getting some recognition today after WikiLeaks gave the New York Times, the Guardian, and Der Spiegel nearly 100,000 classified reports from 2004-09 on the Afghanistan war.

CNN reports on Press Secretary Robert Gibbs’s addressing comparisons between today’s big story and the 1971 Supreme Court case over whether the government had the power to restrain the New York Times from publishing the Pentagon’s top secret history of American involvement in Vietnam:

“The Pentagon Papers are different in the sense that you are talking about policy documents, these are sort of on the ground reporting of different events. I don’t see in any way how they are really comparable,” Gibbs said.

Noting that the Pentagon Papers contained significant revelations in terms of policy, Gibbs said that Sunday’s publication has not “markedly changed” what “is known, about our relationship and our efforts in both Afghanistan and Pakistan by what is in these documents.”

“You don’t have some revelation that there is a systematic change of the course of events, that we have stepped up operations in a certain part in the war in Southeast Asia, that we’ve escalated, that’s just not, that’s not what these documents are,” Gibbs said.

Beneath all the huff-and-puff of this major story–a story, one should note, that has suffered no governmental attempt at prior restraint–comes an actual prior restraint out of the D.C. Superior Court.  Mike Scarcella of the Legal Times reports:

A D.C. Superior Court judge on Friday blocked The National Law Journal from publishing information from court records about a regulatory investigation into juice maker POM Wonderful.

An NLJ reporter had legally obtained the information from court files, but the judge, Judith Bartnoff, ruled the records should have been under seal. She issued a temporary restraining order just before the paper’s deadline on Friday to block publication of the information.

Attempts to restrain a publisher are exceedingly rare. But Bartnoff said that the court’s interest in maintaining the integrity of its docket trumped First Amendment arguments. […]

“If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff said at the hearing. “None of that First Amendment jurisprudence, to my knowledge, is dealing with this issue—the integrity of the functioning of the court system.”

If suppression of a top secret history of the country’s Vietnam war policies for the sake of national security did not overcome the Supreme Court’s heavy presumption against a prior restraint’s constitutionality, I have a hard time seeing how Judge Bartnoff’s justification for suppression–the court’s institutional integrity–can sustain its heavy burden upon appeal.

Read Scarcella’s report here for some great exchanges between the judge and the National Law Journal’s counsel, as well as POM Wonderful’s direct connection to the Pentagon Papers case.

UPDATE 7/30/10: The Legal Times reports that Judge Bartnoff lifted the restraining order this afternoon at POM’s request:

On July 30, just hours after a group of media companies filed an amicus brief in support of the NLJ in the D.C. Court of Appeals, POM’s lawyer moved to have the restraining order withdrawn. Judge Judith Bartnoff lifted the temporary restraining order about 4:30 p.m. Friday.

“Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue,” POM’s counsel, Barry Coburn of Washington’s Coburn & Coffman, said in a statement. “POM is, and always has been, fervent supporters of and believers in the freedom of the press, and takes very seriously its commitment to transparency in all aspects of our business.”