Every Little Thing the Reflex Does (Clarence Mark Remix)

This seems significant:

Justice Clarence Thomas has not asked a question from the Supreme Court bench since 2006. His majority opinions tend to be brisk, efficient and dutiful.

Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.

The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.

Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording is particularly common.

Justice Thomas’s seven majority opinions in the last term were on average just 12 pages long and contained little but a summary of the facts and quotations from or characterizations of the relevant statutes and precedents. Since opinions are signed by justices but often drafted by law clerks, it may be that any borrowed language was the work of Justice Thomas’s clerks.

(Liptak)

It is true that such notions and the details from which they arise seem to many people obscure, or even petty. But to even casual observers of the Supreme Court, Justice Thomas is something of an enigma. And every time we get a glimpse into how he undertakes his role and duties as a Supreme Court Justice, we only end up with more questions, each stranger than the last.

But that’s the thing; compared to other aspects of his tenure, this isn’t exactly scandalous. In questions of scandal, it is just another piece of data that could be construed as relevant. Without worrying about such questions of scandal, this really is fascinating.

No, really:

In June, he slipped in a playful aside. What he had just read, a description of synthetic drugs, he said to laughter, was “a sentence which I completely do not understand.”

Still, there is actually a lot more to Adam Liptak’s report for the New York Times; and, yes, it really is fascinating.

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Image note: Supreme Court Justice Clarence Thomas laughs while talking with other guests at The Federalist Society’s 2011 Annual Dinner. (Cliff Owen/Associated Press)

Liptak, Adam. “A Supreme Court Justice of Few Words, Many of Them Other People’s”. The New York Times. 27 August 2015.

Required Reading: Equal Protection Edition

This is pretty much required reading. William N. Eskridge Jr., of Yale Law School, offers an opinion in favor of Amendment XIV recognition of same-sex marriage in Ohio. The middle of the article stands out:

Justice Anthony Kennedy said: “This definition has been with us for millennia. It’s very difficult for the court to say, oh well, we know better.” Justice Samuel Alito asked: “How do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?”

All of the justices and counsel addressing this point accepted the premise that no culture had ever recognized same-sex marriage. That premise is incorrect.

First- and second-century historians Suetonius and Tacitus (disapprovingly) documented official same-sex marriages in imperial Rome. Some modern historians have found plausible evidence of such marriages among Egyptians, Canaanites and Hittites and on islands in ancient Greece. So it is not right to say that the Western tradition had never entertained marriages between people of the same sex until the 20th century.

The evidence is overwhelming for non-Western cultures. In their 1951 book “Patterns of Sexual Behavior,” anthropologists Clellan Ford and Frank Beach surveyed 191 world cultures and found many examples of same-sex intimacy occurring “within the framework of courtship and marriage.” They were mainly referring to “berdache” marriages, in which a man would marry another man who performed domestic duties or a woman would marry a woman who worked outside the home. Researchers have demonstrated that a majority of Native American tribes (as well as many tribal people elsewhere in the world) have recognized such marriages at points in their histories.

Anthropologists have also documented the phenomena of “woman marriage” in African societies, in which a wealthy woman marries another woman and then secures her impregnation, thereby generating heirs. Anthropologist Denise O’Brien reports that such marriages have been recognized in more than 30 African cultures.

There are other examples (some more equivocal), but these show that there has been no universal definition of marriage that excludes same-sex couples.

To the one, it should be noted that Prof. Eskridge also authored an amicus brief in support of the Obergefell petitioners on the question of the Fourteenth. And while the interest of amici might be a bit thin, the brief still makes for excellent reading.

To the other, we should remember what is at stake: Ohio is trying to unmarry a dead man.

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Eskridge Jr., William N. “The 14th Amendment should cover same-sex marriage in Ohio”. The Washington Post. 19 June 2015.

Eskridge Jr., William N. and Ilya Shapiro. “Brief of Amici Curiae CATO Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners”. Supreme Court of the United States. 6 March 2015.

The Ted Cruz Show (Preposterous Pretense)

I assume Cruz knows this, but the more he talks about ‘mandatory gay marriage,’ the more I’m inclined to remind him that he probably means ‘voluntary gay marriage.’

―Steve Benen

This is what we call E for Effort, but don’t let that be a dig; it really is difficult to make heads or tails of what conservatives mean. This is sort of a confusing issue for them, and it seems that is how they like it.

There was, for instance, the amicus brief from Same-Sex Attracted Men and Their Wives, submitted for consideration in Obergefell, that fretted about a “constitutional mandate requiring same-sex marriage”, and the idea of “Constitutionally mandating same-sex marriage”. By the time we get to Pat Robertson’s bestial-anal rape fantasy―“You are going to say you like anal sex, you like oral sex, you like bestiality, you like anything you can think of, whatever it is”―it is unclear what, if anything, remains to be said.

Well, other than the obvious, which is to wonder what the hell these people are talking about.

But Mr. Benen does, between failed valiant attempts to take Sen. Ted Cruz (R-TX) seriously, manage to make the obvious point:

The only “mandatory” aspect of this is that the notion that the law would be required to treat all Americans equally. It would be “mandatory” that there are no second-class citizens.

This is what we must remember, though: The confusion is the point.

It is just harder to sell the fear of “mandatory gay marriage” if people take the mandate for what it really is: You got married, so now you’re married.

It is not that this is somehow hard for conservatives to understand; rather, they need it to seem hard to understand. The only confusion is that which they pretend, or, as some circumstances might have it―Same-Sex Attracted Men and Their Wives amici, I’m looking in your direction―actually genuinely suffer for whatever deceptions they have inflicted upon themselves.

This sort of seemingly incomprehensible incomprehension is actually pretty straightforward, depending on how deeply one wishes to delve. It is ego defense, nothing more, nothing less. They don’t like what is mandatory, but it is kind of inherently mandatory. So they need the idea of what is mandatory to be kind of scary. So they pretend to be kind of confused about what is mandatory, and then they manage to confuse themselves. This is actually something people do to themselves quite regularly, regardless of political orientation.

In the question of the Republican Party and its desperate, evangelical wing, there does remain a question as to whether or not such failures of healthy psychological function should present themselves as so consuming. That is to say, sure, it’s one thing to have one’s dysfunctional moments, but shouldn’t your part in the public discourse have something more to it than just a neurotic tumbleweed?

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Image note: Top―Sen. Ted Cruz during the Reuters Washington Summit, 24 October 2013 (Photo: Jim Bourg/Reuters) Left―”You don’t want the ark to sink.” Lebanon gives some advice to Suou. Detail of frame from Darker Than Black: Gemini of the Meteor, episode 4, “The Ark Adrift on the Lake”.

Benen, Steve. “Cruz warns of ‘mandatory’ same-sex marriage”. msnbc. 18 May 2015.

Not Exactly a Legal Argument

This is something really quite genuinely incredible. The “Brief of Amici Curiae Same-Sex Attracted Men and Their Wives in Support of Respondents & Affirmance”, authored by one Darrin K. Johns, a Utah Attorney, defies general description. For those given to such myths as the seriousness and gravity of jurisprudence, the proposition that any court, much less the Supreme Court of the United States, ought be expected to endure such frivolity and, ultimately, self-harm as this brief constitutes might bring something of a shock. And no, it is not supposed to be this way.

It is also worth noting that the brief opens with quotes from three of the amici couples. The seven paragraphs that follow establish the interest of the amici; keep that in mind.

Flabbergasting

“Inevitably, a ruling in favor of same-sex marriage will usher in an unprecedented coarsening of community moral standards, spawning an aggressive impulse to force the American people not just to tolerate all forms of sexual misbehavior, but to embrace and encourage pagan practices that threaten to ‘defile’ the land, and risk God’s judgment.”

―William J. Olson

This is what it comes to.

This is what Christian supremacists are bringing to the fight.

Yes, you’re allowed to have one of those, “Holy shit!” moments.

Nostalgia: The Mingling Scents of Bluegrass and Excrement

Ah, Kentucky. To the one, it is true that I believed nobody could top the stupidity of Paul Clement, arguing for House Republicans in Hollingsworth that irresponsible procreation by heterosexuals was a good reason to ban gay marriage.

To the other, there is Kentucky.

Kentucky Gov. Steve Beshear says the state’s ban on gay marriage should be upheld in part because it is not discriminatory in that both gay and straight people are barred from marrying people of the same gender.

In an argument labeled absurd by gay marriage advocates, Beshear’s lawyer says in a brief filed last week at the U.S. Supreme Court that “men and women, whether heterosexual or homosexual, cannot marry persons of the same sex” under Kentucky law, making the law non-discriminatory.

The argument mirrors that offered by the state of Virginia nearly 50 years ago when it defended laws barring interracial marriage there and in 15 other states, including Kentucky, by saying they weren’t discriminatory because whites were barred from marrying blacks just as blacks were barred from marrying whites.

The Supreme Court in 1967 rejected that argument in the historic case of Loving v. Virginia, in which Richard Loving, a white man, and Mildred Jeter, a black woman, were charged with a crime for marrying.

(Wolfson)

About On Schedule

The marriage bans challenged in these cases impermissibly exclude lesbian and gay couples from the rights, responsibilities, and status of civil marriage. These facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted. The bans cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws,” U.S. Const. Amend. XIV.

―Donald B. Verrilli, Jr.

Or perhaps simply an overview from Ryan J. Reilly of Huffington Post:

The Obama administration thinks the Supreme Court should rule that state bans on same-sex marriage are unconstitutional, according to a brief filed by Justice Department lawyers on Friday. The administration takes the position that those laws violate the equal protection clause of the Constitution.

The amicus brief urges the Supreme Court to find such bans “incompatible with the Constitution” because they “exclude a long-mistreated class of human beings from a legal and social status of tremendous import.”

The court will hear oral arguments in the case of Obergefell v. Hodges in April.

Honestly, the only surprise here is that now we need to figure out whence came the notion this one was going forward under DeBoer, the case out of Michigan.

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Verrilli Jr., Donald B. “Brief for the United States as Amicus Curiae Supporting Petitioners”. Obergefell v. Hodges. Supreme Court fo the United States. March, 2015.

Reilly, Ryan J. “Gay Marriage Bans Are Unconstitutional, DOJ Tells Supreme Court”. The Huffington Post. 6 March 2015.