Two Cents on Tinfoil (Chief Injustice)

To the one, who really likes Chief Justice John Roberts?

No, I mean, sure, you know, his wife and all, but still, is there any one of us who not only isn’t disappointed by Roberts’ general unreliability but, also―in counterpoint to the proposition that one must be doing something right if everyone is complaining―comprehends his underlying legal and juristic outlook well enough to properly endorse it?

To the other, there is this:

What explains the rise of Donald Trump? The right-wing blogosphere has a theory: Trump’s success in taking over the Republican party was caused by Chief Justice John Roberts’ contempt for the rule of law.

The argument, put forth in slightly different forms in recent days by Georgetown law professor Randy Barnett and Cato Institute scholar Ilya Shapiro, goes like this:

Roberts knew that the Affordable Care Act, aka Obamacare, was unconstitutional. He even said so in his majority opinion in NFIB v. Sebelius, the case that upheld Obamacare, with Roberts casting the decisive vote. But, after declaring that Obamacare violated the Commerce Clause, Roberts invented a different constitutional argument under the taxing power to save the law, even though he knew that argument was wrong.

He did this because Roberts doesn’t believe judges should overturn laws enacted by political majorities, even when those laws violate the Constitution. Roberts in effect told conservative voters to go elect their own Constitution-trashing strongman, instead of asking courts to restrain tyrants such as Obama and Trump.

Paul Campos apparently drew the short straw over at Salon, and had to spend enough time picking through right-wing tinfoil to figure out what the hell they were saying. And while we owe him thanks, we also might beg pardon if the striking stupidity he describes seems unbelievable, a word here intended to mean, “pretty much what we expect”.

Here’s the tricky part:

The vast majority of constitutional law scholars don’t believe Obamacare violates the Constitution, but never mind that. The far loopier claim is that John Roberts, of all people, upheld Obamacare because he doesn’t believe in striking down democratically-enacted laws. This is the same Roberts who provided the deciding vote to gut the Voting Rights Act, to overturn decades-worth of campaign finance laws, and to strike down gun control legislation, to name just a few of the many cases in which Roberts has shown no hesitation to overturn the decisions of political majorities.

Er―ah … yeah. I’ll just be over in the corner, muttering to myself. Something about matters of fact and opinion.

That, and a potsherd wrapped in tinfoil wrapped in neurotic crisis.

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Image note: U.S. Supreme Court Chief Justice John Roberts at New York University School of Law, 20 November 2015. (Photo: Rick Kopstein/ALM))

Campos, Paul. “This is the dumbest Donald Trump theory yet: It’s all about John Roberts”. Salon. 13 May 2016.

The Republican Message

Let’s talk about messaging.

Okay, we get that President Obama is the big bad villain and all that, but am I the only person who noticed that the GOP “oppo dump” against Judge Merrick Garland, besides being utterly flaccid, is filed under “Hillary Clinton”?

(sigh)

Here. Consider this note, please, from Greg Sargent, offered a couple days before the president nominated Judge Garland:

Republican operatives will “vet that person and put their real record on display.” Ideally, of course, this is what would happen if the Senate were to hold hearings on that person. But that might afford the nominee a chance to directly respond to his or her Republican cross-examiners in a high profile setting (as opposed to only having Democratic groups mount all the pushback, which of course they will also do, once there is a nominee). Direct exchanges between the nominee and Republican Senators, alas, might reflect well on that person. And so the only “vetting” and examination of the nominee’s “real record” will be undertaken through the RNC and associated GOP-aligned groups.

That’s not meant as sarcasm. It’s the actual Republican party-wide position right now. Remember, Senate Republicans themselves have told reporters that they don’t want to hold hearings explicitly because it would risk drawing the wrong kind of media attention to the nominee, thus making it harder politically for GOP Senators — particularly vulnerable incumbents facing reelection in states carried by Obama — to oppose that person later.

It also seems a good time to reiterate Stuart Rothenberg’s recent reflection on this year’s U.S. Senate races. No, really. Trying to tie it all together is an exercise in futility, because it’s almost like a harm reduction scheme implemented in advance of scheduled self-harm. And, yes, that sentence is supposed to read so ridiculously; that’s kind of the problem.

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Image note: Detail of screenshot from GOP.com, taken 19 March 2016.

Republican National Committee. “Meet Merrick Garland”. GOP.com. 16 March 2016.

Rothenberg, Stuart. “Dem Senate Takeover Probable, If Cruz or Trump Nominee”. Rothenblog. Roll Call. 13 March 2016.

Sargent, Greg. “In Supreme Court fight, Republicans lead with their chins”. The Washington Post. 14 March 2016.

Not About Anything But Democrats, According to Republicans

“Naturally, I would like to have him treated fairly, but a lot depends on who’s elected, a lot depends on who’s going to be president.”

―Sen. Orrin Hatch (R-UT)

Via Reuters:

Two key U.S. Senate Republicans signaled they would be open to considering after the Nov. 8 presidential election President Barack Obama’s Supreme Court nomination of Merrick Garland, the centrist judge who was set on Thursday to begin meeting with senators.

The comments by Utah’s Orrin Hatch and Arizona’s Jeff Flake, members of the Judiciary Committee that would hold any confirmation hearings, came a day after Obama nominated Garland to the lifetime position on the high court to replace conservative Justice Antonin Scalia, who died on Feb. 13.

Senate Republican leaders have vowed not to hold confirmation hearings or an up-or-down vote on any Supreme Court nominee put forward by Obama, whose term ends in January. They want the next president to make the selection, hoping a Republican wins November’s election.

Flake said while Republican leaders were “fully justified” in delaying action on confirmation, if the Republicans lose the White House race the Republican-led Senate “ought to look at this nomination in a lame-duck session in November.”

And while it’s true that something goes here about the futility of predicting conservative behavior, it’s worth reminding that part of the reason for this is that even Republicans aren’t paying attention.

This is the problem: They’re not even trying.

Republican Justice (Maybe Mix)

Steve Benen, after reviewing the appalling stupidity of the Republican pitch against confirming a Supreme Court nominee, including their reaction to the nomination of Judge Merrick Garland, found himself adding a postscript:

Sen. Orrin Hatch (R-Utah), who just last week explicitly urged Obama to nominate Garland, said in a statement this morning that Garland’s nomination “doesn’t in any way change current circumstances” – which is to say, Hatch still supports his party’s blockade.

However, Hatch also added this morning, “I’d probably be open to resolving this in the lame duck.” Keep a very close eye on this, because it may prove to be incredibly important. As things stand, Senate Republicans don’t intend to reject Garland, so much as they plan to ignore him. His nomination won’t be defeated; it’ll simply wither on the vine.

But if Republicans fare poorly in November’s elections, don’t be too surprised if GOP senators declare, “Well, now that voters have had their say, we’re prepared to confirm Garland after all.”

The msnbc producer and blogger advises readers to, “File this away for future reference”, and it behooves us to do so. One of the blessings facing pretty much any president seeking a new Supreme Court justice, and especially Democrats as such these days, is that there is a plethora of qualified candidates. In the end, given all else, one wonders if perhaps the “moderate, inoffensive, broadly respected, 63-year-old white guy” is actually the sacrificial lamb.

LePage on Obama on Scalia

All things considered, this is actually not unexpected. Well, you know.

Maine Gov. Paul LePage on Thursday added his voice to the ongoing debate regarding the U.S. Supreme Court vacancy created with the unexpected death of Justice Antonin Scalia last Saturday.

LePage sided with former governor and U.S. Sen. Angus King, I-Maine, saying President Barack Obama should nominate a replacement for Scalia.

“I’m a big constitutionalist,” LePage said. “If it’s in the Constitution, I think it means something.”

(Thistle)

That is to say, Governor LePage managed to get one right^α. Then again, this one is pretty easy.

Your Headline of the Duh

The headline from Roll Call we might file as obvious: “Supreme Court Vacancy Could Lead to Even More Gridlock”:

Republicans, including Cruz and Rubio on the Sunday shows, have cited the so-called “Thurmond Rule” in saying the chamber shouldn’t confirm any such nominees in the last year of a president’s term once the presidential race is underway. It’s named after Sen. Strom Thurmond, R-S.C., who chaired the Judiciary Committee from 1981 to 1987.

“There is no such thing as the Thurmond Rule,” Senate Judiciary ranking member Patrick J. Leahy, D-Vt., said on CNN’s State of the Union on Sunday. Leahy cited the Democratic-controlled Senate’s confirmation of several of Republican George W. Bush’s lower court nominees in September 2008 as evidence that there is no such tradition or rule.

Remember, when this stuff finally makes it ’round to the evening news, then the morning infotainment, that we’ve already heard it.

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Image note: Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee hearing on Capitol Hill in Washington, May 20, 2010. (Detail of photo by Kevin Lamarque/Reuters)

Dick, Jason. “Supreme Court Vacancy Could Lead to Even More Gridlock”. Roll Call. 14 February 2016.

Another Obvious Question (House Divided Hot Mess Mix)

Let us start here:

Importantly, Davis is not claiming a substantial burden on her religious freedom or free speech rights if someone else authorizes and approves a SSM license devoid of her name.

(Mihet and Christman [Liberty Counsel], 28 August 2015; accents per source)

Follow the bouncing ball:

“The stay request offers several options such as removing Davis’s name from the marriage license, thus removing the personal nature of the authorization,” Staver pointed out. “Another accommodation would be to allow licenses to be issued by the chief executive of Rowan County or developing a statewide, online marriage license process,” Staver suggested. “There is absolutely no reason that this case has gone so far without reasonable people respecting and accommodating Kim Davis’s First Amendment rights,” Staver concluded.

(Liberty Counsel, 31 August 2015; boldface accent added)

And then came Friday:

Mathew Staver, founder of Liberty Counsel which represents Davis, said he believes Friday’s licenses are invalid because they were not issued with her approval. Davis’ name does not appear on the licenses.

“They are not worth the paper they are printed on,” Staver said, standing in front of the Grayson, Kentucky, detention center where Davis is being held. He added she had no intention of resigning as clerk.

(Bittenbender; boldface accent added)

Would any among Ms. Davis’ defenders care to attempt reconciling, or at least merely explaining that sleight? This much is true: We don’t expect Mr. Staver, nor his colleagues, Messrs. Christman and Himet, to do so. Indeed, we might wonder if they would find demands for such an explanation offensive to their religious freedom.

To be clear, because some need it so expressed:

• If Kim Davis’ name was not on the marriage licenses, then the “personal nature of the authorization” would be removed. (Liberty Counsel, 28-31 August)

• If the licenses were issued without Ms. Davis’ name on them, then they are “not worth the paper they are printed on” because Ms. Davis has not given authorization of a personal nature.

In the end, Mark Joseph Stern’s question of whether Kim Davis is “getting taken for a ride by her lawyers”, as the headline put it, asserts itself more insistently.

More and more, it’s beginning to look like the Liberty Counsel is taking Davis for a ride, using her doomed case to promote itself and its extremist principles. Davis has certainly humiliated and degraded the gay couples whom she turned away. But I wonder if, on some level, she isn’t a victim, too.

(Boldface accent added)

I mean, really.

This is a sick joke playing out before our eyes.

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Image note: Kim Davis, the Rowan County Clerk of Courts, listens to Robbie Blankenship and Jesse Cruz as they speak with her at the County Clerks Office on September 2, 2015 in Morehead, Kentucky. (Photo: Ty Wright/Getty Images)

(Tip o’ the hat I don’t actually wear: JoeMyGod)

Mihet, Horatio G. and Jonathan D. Christman. “Emergency Application to Stay Preliminary Injunction Pending Appeal”. Davis v. Miller et al. Supreme Court of the United States. 28 August 2015.

Liberty Counsel. “Accommodations Would End Rowan County Dispute”. Press Release. 31 August 2015.

Bittenbender, Steve. “Kentucky clerk’s office ends ban on same-sex marriage licenses”. Reuters. 4 September 2015.

Stern, Mark Joseph. “Is Kentucky’s Infamous Anti-Gay Clerk Getting Taken for a Ride by Her Lawyers?”. Slate. 31 August 2015.

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.

Good Advice (Always Be Prepared)

“To talk to the government, you fill out a form―getting married is no different. Until today, only marriages comprised of a “husband” and a “wife” were eligible to fill out the papers, so the forms will be gender coded. It can be an uncomfortable moment when you’re standing at the clerk’s counter, pen in hand, one looking over the other’s shoulder, and that’s the moment you have to decide which name goes over “husband” and which goes over “wife.” In advance, flip a coin, have a heavy talk, allocate a gender between the top and the bottom. But, work it out on the way. Our clerk in Toronto picked for us, and I still disagree with his choice.”

―Coco Soodek

No, really. This is a moment to lighten up and enjoy that this is really happening. HuffPo blogger Coco Soodek offers some advice to red-state gay couples as they prepare to celebrate their love, and justice as well.

It’s almost enough to make me want to go get married, like in Kansas, or something. You know, just because.

And, no, nothing goes here about the sanctity of marriage. Rather, we might simply mutter something about how stupid the proposition of me getting married could possibly be, and still be making sense. But that’s the fun part; we wouldn’t have to fiddle around or flip coins over gender.

Good luck, everyone. And remember, we might chuckle at the thought of Justice Scalia insulting his own wife, but he does have something of a point. That is to say, you know, just not a useful one for a Supreme Court dissent. Still, though, I used to joke that all feminists were asking was that women be treated like shit in the same way as everybody else. And, you know, that’s kind of a joke we can make about gay marriage. What we won in Obergefell is the right to be just as miserable as our heterosexual neighbors. And, yeah, you know, don’t analyze that point too much; it’s a joke.

Be well, friends.

Congratulations.

And, you know, I owe generations who came before me an eternal debt. Thank you so much.

But, yeah. Here we are.

Stand. Speak. Love. Live.

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Image note: “Her plan is to penetrate us ....” Commander Amaro explains the trouble with Raharu. (Detail of frame from FLCL episode 4, “Full Swing”)

Soodek, Coco. “Open Letter to Same Sex People Getting Married in Red States”. The Huffington Post. 2 July 2015.

Prokop, Andrew. “Scalia’s same-sex marriage dissent blasts judicial ‘putsch,’ Ivy Leaguers, fortune cookies”. Vox. 26 June 2015.

The Bobby Jindal Show (Fun Time Sneak Leak Preview)

“If we want to save some money, let’s just get rid of the court.”

―Gov. Bobby Jindal (R-LA)

Sometimes the question of where to start is not so easily resolved. The essential point to remember is that Louisiana Gov. Bobby Jindal, perhaps hoping to impress conservative voters as he prepares a 2016 Republican presidential nomination bid, has seemingly run out of room to maneuver against marriage equality. Yesterday’s ruling in the Fifth Circuit Court of Appeals was the third, and yet Mr. Jindal still desperately seeks to delay:

But while Gov. Bobby Jindal’s administration previously had said it was waiting on that 5th Circuit Court of Appeals ruling before recognizing same-sex marriages, top state officials dug in their heels Wednesday and said they wouldn’t change course until a district court orders them to do so.

That only widens the gap between the administration and the reality on the ground across the state. Clerks or other officials in nearly all parishes have now said they will issue licenses to same-sex couples, even as Jindal administration officials continue to tell state agencies to hold off on accepting them as valid.

The administration’s delay in accepting the Supreme Court’s ruling may be behind another point of conflict that cropped up on Wednesday as members of newly married same-sex couples seeking to change the name on their driver’s licenses to reflect their union found their efforts thwarted by the Office of Motor Vehicles.

The ruling by a three-judge panel of the 5th Circuit appeared to address the administration’s stalling.

The Supreme Court’s ruling is “the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court,” the ruling said.

“We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them.”

The panel then ordered district judges who have overseen cases involving same-sex marriage, including U.S. District Judge Martin Feldman in New Orleans, to issue final judgments in their cases legalizing and recognizing same-sex marriage by July 17.

Normally that ruling, and any judgments that come from the lower courts, would be largely procedural measures now that the Supreme Court has decided the issue. And, indeed, that’s how they have been treated in most of the country, where clerks began issuing licenses immediately after Friday’s ruling.

But Jindal administration officials have said they won’t comply until forced to do so. While they initially pointed to the 5th Circuit’s decision as the event that would fully grant gay marriage rights in Louisiana, they changed course after the ruling was handed down and said they would continue to follow the state constitution’s ban on same-sex marriages until forced to do so by a lower court.

(Adelson and Shuler)

So, yeah. That’s what is going on in Louisiana. And, you know, there comes a point where this isn’t about anything else than sheer petulant malice.

Or, as Bobby Jindal is wont to call it, leadership.

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Image note: Republican Governor of Louisiana Bobby Jindal speaks at the Iowa Faith and Freedom Coalition’s forum in Waukee, Iowa, April 25, 2015. (Photo by Jim Young/Reuters)

Hensch, Mark. “Jindal: ‘Let’s just get rid of the court'”. The Hill. 26 June 2015.

Adelson, Jeff and Marsha Shuler. “5th Circuit Court tells Louisiana to recognize same-sex marriages; Jindal administration still balks”. The Advocate. 2 July 2015.