Antonin Scalia is either a fool or a liar


Russell Saunders

Russell Saunders is the ridiculously flimsy pseudonym of a pediatrician in New England. He has a husband, three sons, daughter, cat and dog, though not in that order. He enjoys reading, running and cooking. He can be contacted at blindeddoc using his Gmail account. Twitter types can follow him @russellsaunder1.

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234 Responses

  1. Avatar Ethan Gach says:

    Right on Russell.Report

  2. Avatar Kimmi says:

    I do not ask lawyers to opine on matters of science, just like I do not ask scientists to opine on matters of law.

    What expert witnesses has the other side brought? Are they as dishonest and self-serving as the rest of the lot?Report

    • Avatar Burt Likko in reply to Kimmi says:

      Boies and Olson effectively flipped or neutralized every expert witness called by the proponents of Prop. 8.

      One of them wound up admitting that SSM causes no harm to opposite-sex couples, and another one wound up admitting that children raised in same-sex parent households do at least as well as children raised in opposite-sex parent households or single-parent households.

      They offered no scientific evidence because they have no scientific evidence.Report

      • Avatar Dave in reply to Burt Likko says:

        Boies and Olson effectively flipped or neutralized every expert witness called by the proponents of Prop. 8.

        That is putting it very mildly.

        They offered no scientific evidence because they have no scientific evidence.

        I’m on Page 16 of the transcript, and the lawyer for the proponents of Prop 8 is trying to dance around this subject. I don’t think he’s doing a particularly good job. It appears Scalia jumped in to help him before he could completely hang himself.Report

      • Avatar ktward in reply to Burt Likko says:

        Last night, Maddow did a good job of outlining how extraordinarily out-gunned defendants are in this case.

        Today, Justice Kennedy leaves me seriously perplexed with his comment, “I just wonder if the case was properly granted … “ Perhaps I’ve made some wrong assumptions about the process by which SCOTUS agrees to hear cases. Don’t the Justices themselves decide which cases they will hear? I mean, isn’t a little late in the game for this kind of ambiguity from our highest bench?Report

        • Avatar Ryan Noonan in reply to ktward says:

          Unclear. Depends on who voted to hear it. You don’t have to have a unanimous decision to grant cert, just four justices. So maybe the three right-wingers joined up with Ginsburg or something.

          In any case, you’re right that it’s totally silly. The Supreme Court’s standing doctrine is utterly laughable. Another reason why continued respect for these people leaves me totally baffled.Report

          • Avatar ktward in reply to Ryan Noonan says:

            Depends on who voted to hear it. You don’t have to have a unanimous decision to grant cert, just four justices.

            I didn’t think it had to be unanimous, but at least a majority. Only four? I assumed it would have to be five.

            At any rate, I’d still very much like to know whether or not Kennedy voted this a SCOTUS-worthy case, now that he’s officially all “I dunno” about its merits.Report

            • Avatar Ryan Noonan in reply to ktward says:

              Yeah, the “rule of four” is one of those weird things in American politics that is totally untenable as soon as people start acting rationally (like the filibuster). As someone on SCOTUSblog (Lyle? I think) pointed out today, there is no legal reason why you couldn’t have five justices just declare that they’re unwilling to rule on a case and vacate or remand it back to the lower courts. So four justices can grant cert, but the other five always have the power to just un-grant it if they really want to do so. They don’t tend to do this, but it’s probably only a matter of time given the increasing politicization of everything.

              On the last point, I agree. Also reported by SCOTUSblog, it seems like there might be five votes to dismiss on standing (the liberals plus Roberts) and at least one to dismiss as improvidently granted (Kennedy), so who the hell granted cert here? The three wingers wouldn’t be enough.Report

              • Avatar Alan Scott in reply to Ryan Noonan says:

                I suspect that Scalia, Thomas, and Alito voted to grand cert because they wanted to see the decision overturned.

                Roberts, I think, would rather not deal with the matter. He knows that however things go right now, they’ll not paint the court in the best light. Based on Kennedy’s statements, I think he also chose to deny Cert.

                That means only one of the liberal Justices needed to favor Cert to get the magic number. If any one of them wanted the court to tackle the case on the merits (basically, if they think their side can win and want to establish precedent), then they’d presumably vote for cert. Given how Sotomayor addressed the standing issues in questioning, I’d say she would much rather decide the case on the merits. She could be that fourth vote.Report

        • Avatar Stillwater in reply to ktward says:

          KI think the worry from the non-conservatives is that this is the first time a ballot initiative has been challenged in the SC? Something like that?

          Apparently the four conservatives reallyreally wanted to hear the appeal.Report

          • Avatar Will H. in reply to Stillwater says:

            I remember them denying standing for a suit brought by the Sierra Club within the last few years based on a lack of standing.
            I forget exactly what the case was, but it was based on the notion of what constitutes an “injury.” General statements that someone might one day wish to visit a national park are not sufficient to constitute an “injury.” (although that is the very sort of thing that preliminary injunctions are used for, so maybe it was the procedural posture in the case that was dispositive.)Report

        • Avatar Kimmi in reply to ktward says:

          a few justices select whether to hear a case or not.Report

        • Avatar Jeff No-Last-Name in reply to ktward says:

          Welcome back!!!Report

          • Thanks, dude. I’m only sorta back whilst wishing I had the time to be fully back. Meanwhile, I see there was all manner of drama while I was gone. Hanley and Blaise at it again, apparently. And who’s Dave? Near as I can tell, he seems quite awesome.

            Frankly, I’m a bit unnerved by the thread of self-victimization I’m gleaning: comments like, “only one other libertarian left at this site” and just general implications that the influx of liberals here has somehow served to drive off all the libertarians. (Lord knows the liberals drove off all the conservatives. Mean ol’ liberals.)Report

  3. Avatar Kazzy says:

    This is really interesting… because for so long, before groups like the AAP and science like what they cite supported the healthy development of children of same-sex couples, the anti-SSM crowd told off the horrors that befell such children and how insufficient same-sex couples were. Now that there is evidence to the contrary, suddenly they throw their hands up and pussyfoot around how much we can really know and blah, blah, blah.


    • Avatar Barry in reply to Kazzy says:

      ” Now that there is evidence to the contrary, suddenly they throw their hands up and pussyfoot around how much we can really know and blah, blah, blah.


      Reminds me of a guy on another blog. Boy, did he know the Constitution and what it Really Meant. When it came to birtherism, though, suddenly he was an intellectual agnostic, and didn’t know where President Obama was born because he wasn’t there, witnessing the birth in person. So what could he know blah, blah blah.

      I asked him for proof that there actually was such a thing as a Constitution of the USA, and proof of what the text was (’cause he wasn’t around back then, either).

      No reply.Report

  4. Avatar NewDealer says:

    1. He is both willfully blind and ignorant. His opinion in the case is going to be something to be seen.

    2. The court watchers seem to think that this will be a very narrow decision.Report

  5. Avatar Pinky says:

    So, we’re just ignoring studies like Regnerus’s?Report

    • Avatar Patrick Cahalan in reply to Pinky says:

      No, we’re not ignoring it.Report

    • Avatar Russell Saunders in reply to Pinky says:

      No, we’re not ignoring it. We’re just recognizing that it was a deeply flawed study.Report

      • I don’t want to dispute that the Regnerus study was flawed. But I think pointing it out is not really the true rejection of the SSM argument for you or for anyone here. That is, its truth or falsehood wouldn’t change a thing for anyone, whether pro- or anti-.

        Suppose a study really did show that children did worse in households headed by same-sex parents. What then? Would I be against marriage equality? Nope. I’d still support it. Even people who might not be the world’s best parents should still be allowed to marry.

        Until now, studies have shown:

        1. Children do badly after divorce, ceteris paribus.
        2. Children of divorce do relatively badly even after remarriage, ceteris paribus.
        3. Children of married same-sex couples appear to be pretty much the same as children of opposite-sex couples. Again, ceteris paribus, and keeping in mind that we haven’t had marriage for all that long.
        4. Children of cohabiting couples do relatively badly, at least when those couples are heterosexual, ceteris paribus.

        The problem is that ceteris just isn’t paribus: If we set criteria for marriage based on childrearing outcomes, and if we did so impartially, we would deny all kinds of people their marriage rights. We would forbid convicted felons from marrying. We would forbid the poor and those with a history of mental health problems from marrying. Alcoholic? You can’t get married either!

        We don’t do any of these things. But when it’s a question of same-sex marriage OH MY GOD WON’T SOMEONE THINK OF THE CHILDREN!!!


        • This is a strong point. It doesn’t change the fact that Scalia is just lying, but it clearly outlines that neither he nor any of us really gives a shit about what the science actually says.Report

        • Avatar Jack in reply to Jason Kuznicki says:

          I overcame my initial irritation that you used Latin, thus forcing me to go look shit up just to understand your argument. My irritation gave way to thanks because you had forced me to look shit up and now I know more Latin. So thanks for that.

          Second, I see you are playing your “Is that your true rejection” game, (which I love, it is one of those posts of yours that has changed the way I discuss/argue with people). I don’t understand why it is not called “Is that your true objection” though, which sounds both more accurate and pleasing to the ear, at least mine. Silly question but got an answer or thoughts on that?Report

          • Avatar Jason Kuznicki in reply to Jack says:

            Ceteris paribus is an incredibly useful concept and virtually the only thing that makes it possible to think intelligibly about complex social phenomena. It’s also useful for identifying rules of action in e.g. chess. “Put your rooks on open files” is good advice, but only ceteris paribus. Other times, you may have compelling reasons not to.

            I call it “true rejection” because that’s the way I learned it, and it signals my affiliation with a community. It Googles directly to an explanation of the concept, although I see now that “true objection” does as well. I’m not terribly intent on it either way, I suppose.Report

      • Avatar Pinky in reply to Russell Saunders says:

        That’s what social science research looks like. As an economist, I’m familiar with the problem. You rarely get a perfect study. But the way some people are dismissing the study suggests that their problem is the study’s conclusion. Let’s be honest, very few of us check the methodology of studies that we quote, and very few of us search to see what experts say about the methodology of studies we quote. It’s a lot easier to fault studies which reach conclusions we don’t like. And it’s pretty sad if you’re using your distaste for a study’s conclusions to call someone a fool or a liar.Report

        • Avatar Patrick Cahalan in reply to Pinky says:

          Let’s be honest, very few of us check the methodology of studies that we quote, and very few of us search to see what experts say about the methodology of studies we quote.

          If you’re quoting a study and you don’t check the methodology, you’re doing it wrong.Report

        • Avatar Russell Saunders in reply to Pinky says:

          Let’s be honest, very few of us check the methodology of studies that we quote

          I do.

          And I’m not calling Scalia a fool or a liar because I don’t like the conclusions of a deeply flawed study. I am calling him a fool or a liar because he said something manifestly untrue from his seat on the nation’s highest court.Report

        • Avatar Pinky in reply to Pinky says:

          So, you guys have read the studies in Pediatrics, and the replies to them? What did you think?Report

  6. Nob Akimoto Nob Akimoto says:

    But will this perpetuate gay entitlement?Report

  7. Avatar BlaiseP says:

    “Teachin’ the Controversy”

    Can a SCOTUS Justice be impeached?Report

    • Avatar russm in reply to BlaiseP says:

      “Can a SCOTUS Justice be impeached?”

      If they are considered “civil officers”, then yes. Good luck getting an impeachment vote out of the current House.Report

    • Avatar Jaybird in reply to BlaiseP says:

      Can a SCOTUS Justice be impeached?

      That there is a genie that we don’t want out of the bottle.Report

      • Avatar BlaiseP in reply to Jaybird says:

        I’ll leave this to the lawyers around here, but let’s moot a situation where a judge made such a statement during the discovery phase of a trial….

        “…but it’s certainly true there is no answer to that scientific question…”Report

        • Avatar Jaybird in reply to BlaiseP says:

          I think you misunderstand my issue. It’s not that I think that the genie won’t grant your first wish (nor even that your first wish isn’t a wish worth wishing).Report

          • Avatar BlaiseP in reply to Jaybird says:

            Seriously, lawyer incompetence crops ups all the time. But how can society cope with an unjust judge? Does a judge have right to say such things about a case before the court? I really don’t know. There must be some recourse here.

            I presume you know Lincoln wanted to have Justice Taney locked up. I presume we can all agree with those who talked Lincoln out of such a stupid and obviously undemocratic action. But this isn’t a question of partisan sentiment, this is an obviously prejudicial statement about a case before the court, a denial that any such answer could be given.

            It’s wrong at two levels. This isn’t a “scientific” question, it’s a legal question. Sure, we might say all sorts of axioms would be present in any such study about the nature of what constitutes a child’s well-being. Anyone with any common sense at all, especially parents, would know some kids get in trouble no matter how “good” the parents might be. Drug addiction. Mental illness. Post-trauma fallout. Kids don’t come with manuals. There’s no insulating them from all life’s evils. You do the best you can. And some gay parents will be just as horrible as their straight counterparts.

            But there’s second, more insidious error in what Scalia’s saying. He’s reducing this to some arbitrary judgement, saying there IS no answer. No, Justice Scalia, that’s why this case has been brought before you and your fellow justices: you will give us an answer, so that we may have Equal Justice Under Law. If Justice Scalia doesn’t understand that, he’s not merely a liar, that’s rather too kind an interpretation. A liar would say there was an answer. He is a Fool: by saying no answer is possible, that this is a “scientific” problem, he proves he has no business depositing farts on that bench. Moreover, the longer he sits there, he more he becomes a clear and present danger to the rule of law in this nation.Report

            • Avatar Stillwater in reply to BlaiseP says:

              Blaise, what you’re saying here is pretty close to how I viewed the quotation out of context. Especially this: a denial that any such answer could be given. In context, tho, Scalia isn’t saying that it’s conceptually impossible to determine an answer to that question, but that science hasn’t to date answered that question. If you read the transcript, the argument (an argument he’s advancing, btw!) then moves on to the impossibility of arriving at conclusive evidence that gay adoption in fact incurs no harms to children, presumably because the “experiment” hasn’t been run long enough.Report

              • Avatar Stillwater in reply to Stillwater says:

                And I want to add again here that I agree with Ginsburg that the entire line of reasoning Scalia is advancing is irrelevant wrt to the issue before the court.Report

              • Avatar BlaiseP in reply to Stillwater says:

                I’ve read the quote in context. I don’t see any attenuating or ameliorating remarks which might convince me otherwise. He’s begging the question. It’s a contemptible line of rhetoric. If I was marking him for debate, I’d dock him for Vacuous Truth.Report

              • Avatar Stillwater in reply to BlaiseP says:

                He’s not begging the question of whether science *could* determine an answer to the question. He’s making a false statement that “at this time” science hasn’t done so. He then engages in a little dialogue with the defense attorney supporting that contention: that the experiment hasn’t been run long enough for evidence to yield a determinative conclusion. Even there he’s not begging the question that science *could* answer it. If he’s begging a question, it’s the question of what constitutes scientific certainty. (The language in the transcript is that the conclusion of no harm to children is “beyond debate” – a standard which isn’t included in any meaningful way in the scientific lexicon.)

                The other thing about his remarks I find interesting is that he claims to take no position on whether gay adoption is harmful or not even as he’s foisting a harm-based argument on the defense. (He says to the attorney something like “let’s use a concrete example – why don’t you use a concrete example?…”) This strikes me as pure cover-your-ass politics, but it’s consistent with the argument he’s ultimately pointing at: state’s rights. He essentially makes that argument when he says asserts that states disagree about the harms of gay adoption, presumably for justified reasons.Report

              • Avatar BlaiseP in reply to Stillwater says:

                At Page 20, Lines 7 and 8, Scalia cuts through all of Ginsburg’s objections: It’s true but irrelevant.Report

              • Avatar Stillwater in reply to BlaiseP says:

                Hmmm. I’m confused about what you mean here. Scalia is saying that Ginsberg’s specific response to Cooper is correct. It’s true that Cooper’s argument is irrelevant in California. He then says that that point is irrelevant since the issue about national policy, ie., policies extending beyond California.

                SCALIA: I — it’s true, but irrelevant. They’re arguing for a nationwide rule which applies to States other than California, that every State must allow marriage by same-sex couples. And so11even though States that believe it is harmful — and I take no position on whether it’s harmful or not, but it is certainly true that — that there’s no scientific14answer to that question at this point in time.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Scalia commences with a Fallacy of Division argument: saying there is no consensus, saying some states don’t allow same-sex adoption and others do.

                When Ginsburg notes California does allow such adoptions, Scalia gets flustered and retreats into unsubstantiated argument, begging the question of whether same-sex adoption is beneficial to a child. He asks if there is any possible deleterious effect.

                Note Scalia has already exposed his flabby ass. He’s not asking if same-sex marriage is the issue, he’s casting aspersions on adoption laws, a question which is not before the court.

                Cooper fucks up his response. He should have made the point that unmarried persons can also adopt children. But Scalia’s worked up and says it’s true but irrelevant. Truth is, the argument is irrelevant: adoption and marriage are different. But not for the reasons Scalia says: the states have not determined whether same sex marriage is harmful. He’s completely off the rails.

                Kennedy turns up, the voice of reason, to say there are thousands of children in California who want equality for their parents.Report

              • Avatar Stillwater in reply to BlaiseP says:

                He’s completely off the rails.

                Yes he is. His worry is that states other than California might believe that gay-parenting is harmful to children. But California isn’t one of those states. So he can’t coherently argue in favor of Prop 8 on those grounds.Report

        • Avatar Pub Editor in reply to BlaiseP says:

          Apart from disagreeing with his judicial philosophy and/or willful blindness to social science, what high crime or misdemeanor by Justice Scalia can you point to that would justify impeachment?

          Granted, the House did impeach Justice Samuel Chase in 1804 on a comparably silly charge (Jefferson objected to Chase criticizing an Act of Congress while delivering jury instructions in a trial). The Senate acquitted Chase (and rightly so, imho).

          Fourteen other federal judges have been impeached, almost all for bribery or similar ethical misconduct. See, e.g., Alcee Hastings.

          Beyond that, I agree with Jaybird: this is not a genie that we want to let out of the bottle. It would quickly escalate (just like the filibustering of judicial nominees has escalated in the Senate).Report

          • Avatar Morat20 in reply to Pub Editor says:

            Probably shouldn’t speak for Blaise, but he’s probably thinking of a violation of his oath as judge.

            “I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God.”

            Offhand, despite the fact that I think Scalia has some clear biases that are NOT rooted in judicial idealogy (your ‘bias’ in understanding the law isn’t really fair game — textual literalists or whatnot, that is your ‘best understanding’ of the law) that do, in fact, carry the day for him….

            I can’t see really proving it. And indeed, it’d really have to be pretty egregious before it was worth opening that can of worms.Report

            • Avatar BlaiseP in reply to Morat20 says:

              It’s my assertion Scalia’s statements over time have reached the threshold of unsupportable and intolerable bias. Does the summa of his nastiness and what, for my money, is a violation of his oath — warrant impeachment? If not, what other recourse do we have?Report

            • Avatar Stillwater in reply to Morat20 says:

              …to the best of my abilities and understanding…

              Wiggle room!Report

      • Avatar Ryan Noonan in reply to Jaybird says:

        Disagree. Impeachment of public officials should be very, very common.Report

        • Avatar Jaybird in reply to Ryan Noonan says:

          Okey-dokey. Convinced me.

          So long as we go into it with eyes open, I’m down with normalization of impeachment practice.

          (Unintended Consequences will probably include that all future justices will never again be even half as interesting as Kagan.)Report

          • Avatar Ryan Noonan in reply to Jaybird says:

            I think there is a tendency to overrate how interesting current justices are. This is a large part of why I’m not particularly concerned about the unintended consequences.

            Our justices are political partisans. No more, no less. There’s no point in pretending anything else any more.Report

            • Yes and no. On hot-button issues, they certainly tend to act that way more often than not – even if they honestly believe they’re acting out of principle and a coherent judicial philosophy (and I think they do believe this), the instances of crossing the aisle are sufficiently rare that we can conclude partisanship, even more so than ideology, to be the most important determinant of outcomes on these issues. However, even on those hot button issues, there are exceptions – Roberts changing his mind on PPACA (and I still strongly believe he did so honestly); the increasing likelihood that Roberts and Kennedy are going to find a lack of standing on the part of the appellants in today’s case, etc.

              However, a good proportion of cases that go before SCOTUS are not hot-button issues. Just because these issues are not hot-button topics does not make them unimportant – to the contrary, those issues frequently deal with the nuts and bolts of government and day to day life of most people in a more significant way than many hot-button topics. I’m referring to things ranging from criminal procedure rights to copyright law doctrines, and the edges of First Amendment rights to various matters of statutory interpretation, etc.

              On those issues, partisanship tends to mean a lot less than judicial philosophy, and not in a manner that so easily breaks down to conservative vs. liberal worldviews. For instance, the Kirtsaeng copyright case two weeks ago had the following sets of opinions:

              Opinion of the Court – written by Breyer, joined by Roberts, Thomas, Alito, Sotomayor, and Kagan
              Concurring Opinion – written by Kagan and joined by Alito
              Dissenting Opinion – written by Ginsburg and joined by Kennedy; also joined in part by Scalia

              Something else is important, too – even on hot button political topics, the effects of those decisions extend far beyond the specific issue before the Court, and the precise language used in those opinions often has almost as much impact as, if not more than, the nominal outcome of the case. So even if the actual outcome of a given case is heavily determined by the Justices’ individual partisan alignment, the way in which that result is justified in the opinion depends heavily on the author(s)’ judicial philosophy. That justification is what winds up guiding lower courts on the many issues that are similar, but not identical to the ones before the Court.Report

              • This doesn’t establish an argument for the Supreme Court system we have, though. Any group of nine smart lawyers could decide non-hot-button issues in exactly the same way you describe. Some people might not like those decisions for various philosophical reasons, but what’s the conclusion I’m supposed to draw from that? Our Supreme Court justices aren’t selected for their positions on these kinds of issues, so to the extent that they don’t map onto political ideology, they’re effectively random anyway.Report

              • I’m not arguing for the precise Supreme Court system we have, at least not with this particular comment. I’m responding to your assertion that Supreme Court “justices are political partisans, no more and no less.” That assertion is simply untrue, since their job goes far beyond hot button topics, which are a comparatively small percentage of their caseload.

                I mean, look, the system is imperfect, and that’s even before I get to the issue of the way in which the screwed up confirmation process in the Senate undermines the functionality of our federal judicial system in the trial and appellate courts where most of the work gets done. And the fact that we currently have no one on the Court who has made a career out of representing actual people, instead opting for a messed-up form of check-the-boxes credentialism, is nothing short of a travesty.

                But let’s also not throw the baby out with the bathwater by seeking to dispense with the entire notion of an independent judiciary. At minimum, this should give you pause:

                I can also tell you from personal experience that judges in jurisdictions that preserve the notion of an independent judiciary are far more likely to seriously listen to and consider all sides of an argument than judges in jurisdictions that have basically dispensed with this notion.

                Hell, it wasn’t that long ago that I had a case where we had to make an argument before the highest court of a particular state; all but at most one or two of the justices were partisan unabashedly liberal Democrats. The case was one where partisan political sympathies were clear, and our adversary’s position was one particularly sympathetic to liberal Democrats. The issue was far from cut and dry, and the other side’s argument was quite reasonable, even if I was convinced our arguments were better; indeed, the opponent’s position was sufficiently reasonable that I was prepared for even the Republican appointee to cause us problems. At oral argument, the justices’ political sympathies came through clear as day, and we were thoroughly convinced that we were headed for a unanimous or near-unanimous decision against us.

                A few weeks later we got the opinion. It was indeed unanimous. Unanimously in support of our position. Better still, it was written by the justice who had been the most merciless to us at oral argument.

                From my (admittedly more limited) experience in jurisdictions that have done away entirely with the notion of judicial independence, I cannot envision a situation where we would have obtained anything remotely resembling that result in such a jurisdiction.

                Again, though, I’m not saying the system is perfect. I can respect the view that there’s something inherently problematic with allowing Presidents to influence the Court for as long as their appointees are capable of living, and as such I’m completely open to term limits of reasonable length (18 years, with one appointment staggered every 2 years, sounds about right to me). On the other hand, it’s worth mentioning that one reason we don’t want too much turnover on the Court is that stability and continuity are important so long as we have a common law system. Alternately overturning and reinstating Roe v. Wade every time a new party gets the Presidency is bad enough. Alternately overturning or reinstating Lochner or West Coast Hotel and its progeny would be calamitous.Report

              • Also, you’re giving short-shrift to one of my most central points, which is that SCOTUS’ opinions are about a lot more than just who voted for which outcome in the case before it. The importance to the lower courts of how, exactly, the opinions are written cannot be ignored. Quite frequently the philosophy those opinions espouse as justification for the outcome is indeed very much part of the reason the justice in question was nominated, even if it not something terribly central to the ensuing confirmation battle.

                In other words, a given judicial philosophy can frequently be used to justify any given result in any given case, and in such cases political preferences are a good proxy for how the judge will vote. But the effects of the written opinion on similar-but-not-identical cases decided by the lower courts can be largely a function of how, precisely, the opinion is crafted, and the philosophy purportedly espoused therein.Report

              • Avatar RTod in reply to Mark Thompson says:

                Awesome and informative comments.

                I love that you and Burt are here for this stuff.Report

              • Avatar Will H. in reply to Mark Thompson says:

                Those are the sort of arguments I typically hear against election of judges.

                As a whole, I think the federal judiciary is much more independent than many states.Report

              • Avatar Will H. in reply to Ryan Noonan says:

                Look at it like this:
                What are the odds that the S.Ct. is going to find a constitutional right to marry that would compel all states?
                I’m thinking somewhere in the vicinity of nil.

                Now, suppose there were a referendum to do away with all of Calif.’s state clean air & toxic substances statutes.
                And then it passed.
                And then for awhile, you didn’t see those compliance statements on aerosol cans anymore.

                Then all of a sudden, someone stood up and said, “But they don’t have the right to repeal our ballot initiative!!”

                What then?Report

          • Avatar Kimmi in reply to Jaybird says:

            What did Kagan do?Report

        • With respect to Scotus Justices I think the judicial branch would cease to be a coequal branch of government with impeachments based on the “fault” of disagreeing with Congress. The Scotus would become essentially a subsidiary of the Congress, totally unable to take a different perspective. That perspective is particularly important when checking congressional overreaches or making any decision that’s unpopular.

          Possibly even worse, Congress would be able to punish justices from deviating from script you point out is too predictable. I don’t see how Souter survives a sufficiently angry conservative House and Senate. Also on justices changing their perspectives, would we get Nixon-appointed Blackmun writing of no longer tinkering with the machinery of death when faced with the prospects of reprisals for not voting/writing the expected way?

          Judicial review is really important and it doesn’t survive a judiciary constantly under threat of impeachment on unsound grounds. Scalia, as revolting as I think his opinions are, does not deserve anything close to impeachment talk over this – an oral argument back and forth in line with other oral argument exchanges; he does deserve to be outvoted on the Court, often.Report

        • Avatar James Hanley in reply to Ryan Noonan says:

          Presidents, yes. Justices, no. This approach is necessary to the rule of law.Report

      • Avatar Burt Likko in reply to Jaybird says:

        Jay is exactly right. As soon as Justices become impeached because they ‘voted wrong,’ we lose the independence of the judiciary. Even the most dedicated liberal should be willing to put up with Scalia until they carry him out of One Constitution Street feet first rather than pay that price.Report

        • Avatar Ryan Noonan in reply to Burt Likko says:

          Do we think an impeachment attempt against Scalia would be successful? Have you ever seen this Senate? They won’t even agree to require 51 votes to pass a bill, so it’s entirely possible that you’ve put the Enterprise before the horse here.Report

          • Avatar Jaybird in reply to Ryan Noonan says:

            If the one against Scalia wasn’t, maybe the followup impeachment against Sonia Sotomayor would be.

            Imagine what a President who had Bush’s numbers in 2004-2006 could do to the SCotUS. Or Obama between 2008-2010.

            We’d, effectively, start voting for Justices.Report

            • Avatar Ryan Noonan in reply to Jaybird says:

              We already do. This would, at worst, introduce a mechanism by which the public could exert influence over the Court other than just sort of guessing who is going to be president when the next person dies.

              I will grant that there are BETTER ways of doing this – term limits, direct elections, etc. – but people act like our current system is something worth preserving when it seems anything but.Report

              • Avatar Patrick Cahalan in reply to Ryan Noonan says:

                Our current system is something worth preserving without having an entirely planned replacement. If you’re going to change that system, piecemeal would not be the way I would go about it.Report

              • Well, this is just the point at which we have to agree to disagree. I don’t see anything about our current system that strikes me as particularly worth preserving. A truly independent judiciary selected for merit might be something great, but we don’t have that. We have political hacks (many of whom are smart, many of whom are very smart) who are haphazardly picked based on when the person in front of them in line dies or retires. It’s a wholly idiotic way to run anything, and the fact that you can predict about 90% of all close calls purely by reference to the partisan preferences of the judges themselves lays bare how hollow the entire notion of an independent judiciary is.Report

              • Avatar Patrick Cahalan in reply to Ryan Noonan says:

                Would you have predicted who voted which way on the dog-sniffing case, today?

                Scalia I had. Thomas I had. Kagan I could have seen going either way. Roberts I had. Alito I had.

                Is the fact that I had Roberts and Alito both right, and both opposed to Scalia and Thomas illustrative of anything regarding political hackery?Report

              • I did say 90%, didn’t I? I’ll grant that there’s a semi-orthogonal statist/non-statist axis that confounds the pure partisan makeup of the Court from time to time, but it’s in a small number of cases and cannot possibly be used to justify the inane notion that our judiciary is doing anything other than issuing opinions that match the political preferences of the people issuing them.Report

              • Or, if you prefer, which of the justices issued an opinion in that case that would be different from the vote they would have cast at the ballot if the issue were up for a popular vote?

                And what does that tell us about political hackery?Report

              • Avatar Will H. in reply to Patrick Cahalan says:

                I’ve seen that these things can come out in weird ways.
                Over the past couple of days, I’ve studied an interesting case that is one of those that is intended to resolve apparent conflicts.

                The conflict really started in 1982, when they decided that the federal marshals were a bit overworked. That’s when they revised Rule 4 to allow for service of process according to the rules of the state where the court is located. In ’93, they amended again to permit the state laws where process is served to be valid. (A lot was made of Calif.’s service by mail provisions on both occasions.)

                But the matter at bar was really what constitutes a final decision for appellate purposes.
                A lot of states allow a suit to go forward in a case of multiple defendants on those served, with service being made on the others before trial. (The other option is dismiss those who are able to duck service, which is part of what the 1993 amendment was about.)
                Now, what happened was that someone served multiple defendants, then settled without serving the others.

                Dismissal final and appealable? Yes or No?Report

              • Avatar Mike Schilling in reply to Patrick Cahalan says:

                Alito’s a complete hack. Seriously, one of the worst justices ever, and the evidence for what a weasel he was (someone who would say or do anything to worm his way into a job) all came out during his confirmation hearing.Report

              • Avatar Stillwater in reply to Patrick Cahalan says:

                You lie!

                Hey, it’s hard to find conservative justices that aren’t hacks. That’s the way reality works.Report

              • Alito is the most disappointing justice in the past three decades. Alvarez, Phelps, today’s dog-sniffing case…he has a knack for getting cases exactly wrong, and he isn’t even doing so in service of some consistent philosophy.Report

              • I might be willing to muster a defense of Scalia from time to time. Thomas is the only justice I might keep on if Emperor Jaybird actually happened.

                Alito? He’s horrid. The wicked things that people have been saying about Thomas for the last 25 years should have been saved up to use against Alito instead.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                Ryan, there is no way you can convince me that John Roberts would have voted for PPACA.

                Now, that might be the only one. Maybe it’s not enough. But we talk an awful lot about one or three decisions every court cycle and there are lots of decisions every court cycle. If the three we talk about are the ones where the Justices act just like voting representatives and political partisans 90% of the time, maybe that 10% of an exception isn’t enough for you. But maybe in the grand scheme of things those other N decisions, the breakdown isn’t quite so stark.

                I strongly suspect that we’re both going to suffer a huge amount of confirmation bias in this discussion so if we’re going to take it down to Stage 2, we probably should first stop and go through the decisions and find out how badly they actually act like partisan hacks.Report

              • Patrick, I don’t know if this is the sort of data you’re looking for, but SCOTUSblog compiles statistics for the voting behavior of the justices in a given term (pdf link). (The link is for the 2010-2011 Term; there may be more recent stats out there–I don’t know.) See especially pages 13, 14 and 19 at the link.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                I’ve seen a few “we’ve studied the justices and ranked them by how ‘Conservative’ vs. how ‘Liberal’ they are” bits, but the devil is in the encoding of the data, there.

                I’ll check out that SCOTUSblog PDF. The “cases by vote split” will be an interesting place to start.Report

              • Ryan, there is no way you can convince me that John Roberts would have voted for PPACA.

                I’m not that sure. My touchstone for attempting to predict Roberts is to ask, “What would be the best outcome for large businesses?” The PPACA was, overall, good for large businesses: the insurance companies get a batch of new customers; the big hospital chains get paid for a bunch of what is now charity care (the other Republican governors and legislatures will come around when the hospitals in their states lean on them hard enough, although it may take a few years); more insured patients has to be good for big pharma; and businesses other than those can see the beginning of a way out of having to provide their employees with access to a group insurance plan (the tax payment looks to me like it will be less than the subsidy most employers provide).

                It’s less clear what the big-business interest is in the case of same-sex marriage. I suspect it’s a matter of getting consistent treatment for employee benefits in all 50 states. If that’s so, then look for Roberts to reach an ugly compromise with the four liberal justices and make same-sex marriage legal everywhere. Leaving it up to the states just invites more lawsuits down the road when some states pass laws that forbid providing benefits to same-sex spouses.Report

              • Avatar Pyre in reply to Ryan Noonan says:

                Is the will of the mob REALLY the best idea to inject into the Supreme Court?

                About 4 years, in response to a 4-3 CA Supreme Court decision upholding gay marriage, Prop 8 passed in California by a roughly 52-48 margin. Would you have argued for directly electing judges then?

                On both sides of the argument are the numbers to force an impeachment. Even if impeachment attempts would be unsuccessful, do you think that the threat would not be an influence? Would you really want this case to be decided by judges that have to pander to their base?Report

              • Avatar Ryan Noonan in reply to Pyre says:

                Is the will of the mob REALLY the best idea to inject into the Supreme Court?

                It certainly seems preferable to the hand-shaky dart-board method of picking judges we have now.

                Again, I prefer term limits and a very defined judge selection process to more direct democracy, but I prefer more direct democracy to the system we have. I consider the system we have one of the very worst possible ways of running a judiciary.Report

              • Avatar James Hanley in reply to Ryan Noonan says:

                “Is the will of the mob REALLY the best idea to inject into the Supreme Court?”

                It certainly seems preferable to the hand-shaky dart-board method of picking judges we have now.

                I find that astonishing. Truly truly astonishing.

                And term limits, while plausibly a good idea on their own, would not affect your complaints about the selection process one whit. And I’m not seeing from you a defense of an alternative selection process. You’re just chanting “a better process” without doing the heavy lifting.

                I think the fact that you have so many people arguing against you, and no one stepping up to agree with you, is indicative of how poorly you’ve made your case here. (Uncharacteristically so, I would note.)Report

              • Term limits, if done properly, would remove some of the arbitrariness. The appointments would be more regular, rather than dependent on resignations and papal deathwatches. (I would probably have 12-year terms, one appointed every non-election year.)Report

              • Avatar James Hanley in reply to James Hanley says:

                Will, there’d still be no certainty about which party ‘s president nominated them, and it would presumably still be just as political a process.

                And I’d still like to see Ryan’s proposed alternative. His frustration with the current process is understandable, but he hasn’t shown that there actually is a superior method.Report

              • Avatar Jack in reply to James Hanley says:

                Piling on here, I think liberals and progressives in particular would be insane to choose a system of easy impeachment for SCOTUS members over the existing system. Historically SCOTUS has brought down country-shaking liberal decisions that were decidedly unpopular at the time, and had there been an easy impeachment process in place, many of these reluctant advancers of civil liberities would have had decidedly shorter stays on the bench. Conversely, I don’t think there has been sufficient popular support to impeach judges following their more conservative and liberty limiting rulings.Report

              • Avatar BlaiseP in reply to James Hanley says:

                For every silver lining, there’s a little dark cloud. Yes, SCOTUS has brought down country-shaking decisions, both liberal and conservative.

                But 1 First St NE Washington, DC 20543 is not Mount Sinai. Congress has too often defaulted troublesome decisions to SCOTUS, knowing SCOTUS is beyond attack. The nominations of SCOTUS justices has always been fraught with political animus.

                Over the door of the Supreme Court is carved a motto: Equal Justice Under Law. Since Magna Carta, when even monarchs were subject to law, we have said nations ought to be governed by laws and not by men. I do not believe SCOTUS is some Holy of Holies where God Almighty dwells on earth and only the Nine High Priests may enter.

                The SCOTUS justices are impeachable. That we have never seen fit to do so is only the product of our own Cargo Cult mentality, worshipping at the wreckage of some C-47 in the jungles of New Guinea. Every other entity in society is ultimately accountable to someone or some other entity.

                Because SCOTUS is not held accountable by an increasingly feckless Congress, which only uses SCOTUS to make the Tough Decisions, SCOTUS has gained undue power and its Justices, especially that obtuse baboon Antonin Scalia and his troglodytic Quasimodo, Justice Thomas, both of whom have repeatedly overstepped their roles as rational arbiters, left off justic-ing and gone to politicking. They ought to be censured, if not impeached.Report

              • Reading up on all the corruption and vote buying that happens in state supreme courts quickly cured me of any notion that you’d want to introduce direct electoral politics into the federal bench.Report

              • I recommend John Grisham’s “The Appeal” which touches on this subject heavily. It’s essentially an argument in novel form (but not one of those where the characters tell you what to think).Report

              • I have that on my book shelf….

                Doesn’t everyone who’s ever taken the LSAT tided themselves over by reading John Grisham novels?

                (though my favorite Grisham novel is actually “Playing for Pizza” which isn’t about law or lawyers at all!)Report

              • Avatar BlaiseP in reply to Pyre says:

                We already have the will of the mob in their nomination process. Perhaps, like Caligula, some future President will nominate his favourite horse for SCOTUS. Justice Incitatus, lifetime appointment.Report

              • Avatar Ryan Noonan in reply to BlaiseP says:

                It’s rare that I find myself in agreement with Blaise on both substance AND form, but +1 to this. I really sincerely hope Hillary gets elected in 2016 with a filibuster-proof Senate and nominates the family dog or something.Report

              • Avatar BlaiseP in reply to Ryan Noonan says:

                Caligula Speaks

                Among all the citizens of Rome
                I loved only one
                Incitatus–a horse

                when he entered the Senate
                the unstainable toga of his coat
                gleamed in the midst
                of purple-lined assassins

                Incitatus possessed many merits
                he never made speeches
                had a stoic temperament
                I think at night in the stable he read the philosophers.

                Zbigniew Herbert, trans. Oriana IvyReport

              • There is a very obvious joke about the current Supreme Court that follows from this, but I am not quite willing to make it.Report

              • Avatar Pyre in reply to Ryan Noonan says:

                Why have a Supreme Court at all then? Let’s just use Direct Democracy to decide all the cases. Once a year, we’ll have the lawyers present the facts and, then, as a nation, we vote on what the outcome of the USSC cases should be.

                I know that I would rest better knowing that these issues are decided by the same people who gave Jersey Shore 6 seasons and Meet The Kardashians 7 seasons (thus far).Report

              • Avatar BlaiseP in reply to Ryan Noonan says:

                Heh. Guess you got my drift, Ryan….Report

              • I can see a use for a Supreme Court. Arbitration of legal claims requires a kind of expertise Congress doesn’t possess. We need judges in general, which means we probably need a set of very high-level judges to put a final stamp on things.

                For that matter, most of our government is predicated on the notion that you vote for someone who then casts votes on your behalf. There’s a large gap between exposing our judicial system to actual democracy and just turning everything into a ballot initiative.

                It doesn’t follow from this that we should have the Supreme Court we have.Report

              • Avatar BlaiseP in reply to Ryan Noonan says:

                Why do we need SCOTUS? The UK manages without a constitution but they do now feel the need for a Supreme Court

                Usually, wiki-wisdom is just a borrowed coat, an ersatz appeal to authority — but this article does a good job of laying out the necessity of such a body, even without a constitution.Report

        • Avatar BlaiseP in reply to Burt Likko says:

          This isn’t a question of Voting Wrong. This is a question of judicial misconduct. This is prejudicial error. If this were some two bit judge saying True but irrelevant in a case like this, he’d get his teeth knocked out in appellate court. But since it’s SCOTUS, if a baboon survived nomination on a partisan basis, do we have to let him run around and shit where he likes?Report

          • Avatar Barry in reply to BlaiseP says:

            One of the few truthful statements to pass Scalia’s lips was something like ‘we’re not final because we’re correct; we’re correct because we are final’.

            And more and more Scalia is leaning on that.Report

    • Avatar James Hanley in reply to BlaiseP says:

      Yes, a SCOTUS justice can be impeached. A few federal judges have been impeached, but no member of SCOTUS. One was on the verge of being impeached (and simultaneously on the verge of being appointed CJ!) but resigned–that was Abe Fortas, a brilliant lawyer (he won the Gideon v. Wainwright case that guaranteed public defenders for all) who had some kind of unsavory slush fund that may have been linked to organized crime.

      Theoretically, federal judges should only be impeached for actual crimes or perhaps for utterly failing any sense of judicial neutrality (not in the Scalia, “I don’t think gay is a civil rights issue” kind of way, but in the “He’s a Jew so he loses to the Christian in a case where religion isn’t even an issue” kind of way). They shouldn’t be impeached for rulings that are politically unpopular, or we don’t even need to bother with the pretense of an independent judiciary. For example, there was lots of public pressure in the South to impeach Earl Warren, but Congress never took the idea seriously.

      On the other hand, though, there is no recourse for an impeached party, so effectively an impeachable offense is whatever the House and Senate agree it is.Report

      • we don’t even need to bother with the pretense of an independent judiciary

        Quoted out of context for truth.Report

        • Avatar James Hanley in reply to Ryan Noonan says:

          Heh, gotta like that. But honestly, we really do have an independent judiciary, and thank agnostic god for that. It’s not totally independent of public opinion (as the old saying goes, “the court follows the election returns), but that probably helps prevent the counter-majoritarian problem from erupting into full-bore revolt against the judiciary, but the justices can make their own minds–whether wisely or foolishly–without having to worry about politicians booting them out. Maybe they’re only looking at long-range public opinion as opposed to politicians looking at short-range public opinion, but that’s still better than what the politicians are doing, and it makes the rule of law less of a chimera than it otherwise would be (or I should say, than it otherwise is in countries that lack an independent judiciary).Report

      • A few federal judges have been impeached, but no member of SCOTUS.

        Might I suggest this be amended to read: “but no member of SCOTUS in the modern era.”

        Justice Samuel Chase was impeached (but not convicted by the Senate) in 1804.Report

  8. Avatar Jaybird says:

    There are multitudes of things to find irritating as hell about his statement and an attempt to list them all will probably fail. The one currently irritating me:

    The fact that there “isn’t an answer” (despite the fact that there is) should be seen as a dog that isn’t barking. It’d be quite a feat to have as much data as I’m sure he’d admit that we actually have and yet still not be able to reach a conclusion about harmfulness. As such, we’ve got enough information to put it in the “laws that forbid this are infringing more freedom than harm is created by laws that allow it”. (Of course, implicit is the idea that freedoms infringed constitutes harm in and of itself.)

    I mean, it doesn’t matter. He’s going to vote in the direction of “Italian Catholic” the way that he always tends to. He used to be smarter about telegraphing such things, however.

    On the bright side, if one goes back and reads Bowers v. Hardwick, one sees shit written down that widens one’s eyes and makes one ask “they were aware that the job title is ‘judge’ and not ‘deacon’, right?”

    So even if we do have a 5-4 decision that isn’t in favor of national recognition of all of the same-sex marriages out there, it will be couched in terms more like “this is something that isn’t a national issue (yet) and we should kick this can down the road” rather than “I totally just talked to God and we hammered out some handy definitions of ‘sin’ that we’re going to discuss for a while.”

    Which means that the question will be one of “when?” rather than “if”.

    Which is, I suppose, cold comfort. But there it is.Report

  9. Avatar Stillwater says:

    A little reflection is causing me to hold off judgment on this. The quote attributed to Scalia is just too confused/incoherent for me to believe it came from his mouth. I think it must be a garbled paraphrase or something.Report

    • I was a wee bit worried that I was misrepresenting the quote when I first posted this. Sadly, after having checked the transcript it is clear that he is, indeed, saying there is no scientific answer to the question of whether being raised by same-sex parents harms children.

      [Edited to add: the relevant context is pages 19-20.]Report

      • Avatar Stillwater in reply to Russell Saunders says:

        Thanks for the link. What’s interesting about the line of questioning Scalia is pursuing is that he’s trying to make the argument that changing the definition of marriage to include gays would permit gays to engage in a practice potentially harmful to children (being raised by gays) even tho gays can already legally adopt in California. Ginsburg busted him hard on the irrelevance of the argument, tho Scalia just kept pushing it. The argument then moved on to lack of evidence of the long term effects of the gay adoption “experiment”.

        But you are correct, sir: he said “there is no answer to that scientific question at this time”, when in fact there is one.Report

    • Avatar North in reply to Stillwater says:

      I’m with Stillwater. I’m hoping not even Scalia would say something this dumb. I’m hoping he’s being misquoted or badly paraphrased.Report

      • Avatar Morat20 in reply to North says:

        Scalia doesn’t fire on all his mental cylinders on this topic. It seems to bring his vitriol to the surface while supressing his ability to make logical, coherent, legal arguments.Report

        • Avatar Will H. in reply to Morat20 says:

          I don’t think it’s as bad as all that.
          I see Kennedy makes similar assumptions, and Ginsburg trying to confine the argument to Calif. only. But when she does, Cooper drops the ball (top of p. 21).
          It seems reasonable to assume if the study was admissible as evidence, it would have been admitted, and there would have been argument on it then. I’m having difficulty finding that.Report

          • Avatar Morat20 in reply to Will H. says:

            The study that just came out like last week? Way too late to be admitted in any brief? That confirmed pretty much every other study?

            One real problem here is pretty simple: There’s a single demographic that is much, much, MUCH more anti-gay than any other. And that happens to be the demographic that also makes up most, if not all, of the Supreme Court. (You know. Boomers and older).

            It’ll be interesting to see how many of them grasp how much the US has changed in even the last twenty years — and left them behind. Kennedy’s probably got the biggest problem, since a lot of his legacy leans on Lawrence (which was sweeping in terms of gay rights) and he has to know, at least intellectually, that this is gonna play out exactly like interracial marriage did in the long run.

            Which makes me think he’ll punt. I don’t think he can pull the trigger, but he doesn’t want to tarnish Lawrence.Report

        • Avatar Dave in reply to Morat20 says:

          Scalia doesn’t fire on all his mental cylinders on this topic. It seems to bring his vitriol to the surface while supressing his ability to make logical, coherent, legal arguments.

          That’s too bad that you think that way because this makes the perfect opportunity to show that he is in fact making cogent arguments and then expose the myriad of weaknesses in them.

          I don’t know about you, but I’m certainly up for doing that.Report

      • Avatar Stillwater in reply to North says:

        North, context takes out some of the apparent incoherence of the quotation Russell posted in the OP, but is accurate wrt the factual claims Scalia is presumably making.Report

      • Avatar North in reply to North says:

        And on followups it seems my hope was in vain. With Scalia has always been a spiteful bugger on the subject of us gays.Report

  10. Avatar Bob2 says:

    Quote of the Day

    Gerard N. Magliocca

    Courtesy of a live blog from the WSJ:

    JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?

    TED OLSON: When did it become unconstitutional to ban interracial marriage?

    JUSTICE SCALIA: Don’t try to answer my question with your own question.

    Posted 12:25 PM by Gerard N. Magliocca [link]Report

      • Avatar Morat20 in reply to Pub Editor says:

        And honestly, predictable. Scalia should have had something for that.

        High School kids could have seen Oldson’s response coming a mile away.Report

      • Avatar Barry in reply to Pub Editor says:

        Oh, yea. Scalia don’t want to go there, methinks (and furthermore, because it’s pretty clear that he probably figures Loving v. Virginia and Brown v. Board of Education were not ‘correctly’ decided).Report

    • Avatar Burt Likko in reply to Bob2 says:

      The direct answer, of course, is 1791 as to the Federal government, see Bolling v. Sharpe, 347 U.S. 497 (1954), and not later than 1868 for the states, see Loving v. Virginia, 388 U.S. 1 (1967) and Perez v. Sharp, 198 P.2d 17 (Cal. 1948).

      And it doesn’t matter to me all that much that the Framers of the Fifth and Fourteenth Amendments weren’t thinking about same-sex marriage. What matters to me is the words that they used. Due process and equal protection are the law, and what you or I might guess a bunch of long-dead people were thinking about when they used those words is interesting but not dispositive with regards to interpreting those phrases.Report

      • Avatar Will H. in reply to Burt Likko says:

        If you look at the caselaw surrounding 42 USC 1985(3), “any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws” means precisely a class-based racial animus.

        When they decided to gut that law, they gutted it well.Report

    • Avatar Tod Kelly in reply to Bob2 says:

      Though to be fair, the actual exchange went quite a bit differently than this edited paraphrase suggests:

      • Avatar Jaybird in reply to Tod Kelly says:

        Yeah, I was wondering if (laughter) appeared in the actual transcript. I’m pleased to see that it did.

        I’m hoping that that little exchange is illuminating.

        Though, honestly, it won’t surprise me if all that happens is that Prop 8 is overturned and that’s it.

        At this point, is that a victory or a defeat?Report

        • Avatar Ryan Noonan in reply to Jaybird says:

          At worst, it’s whatever the opposite of a Pyrrhic victory is. The mail is in on this one, and even the lawyer for the petitioners knew it today.Report

        • Avatar Mike Schilling in reply to Jaybird says:

          Scalia’s answer has interesting consequences, though. The 14th was adopted in 1868 by people who almost without exception would have denied that it protected interracial marriage. The Court denied it unanimously in Pace vs. Alabama, 1874. It took another 90 years and a famously liberal Court to find that it did. 45 years after that, the consensus is that it’s an obvious truth.

          So, Nino, tell me again about the deadness of the Constitution.Report

          • Avatar Stillwater in reply to Mike Schilling says:

            Mike, the constitution should be dead. Everyone agrees with this. The only purpose it’s aliveness serves is to reveal the essential core principles which should timelessly – deadly! – comprise it. Whatever they might be! How else could we get things right?

            So, even tho we need a living constitution, everyone wants a dead one.Report

          • At the danger of repeating myself, I, uh, repeat myself:

            And it doesn’t matter to me all that much that the Framers of the Fifth and Fourteenth Amendments weren’t thinking about same-sex marriage. What matters to me is the words that they used. Due process and equal protection are the law, and what you or I might guess a bunch of long-dead people were thinking about when they used those words is interesting but not dispositive with regards to interpreting those phrases.

            Maybe it matters to Justice Scalia. Maybe he has a time machine that lets him go interview the Framers and ask them what they meant. And if those Framers were even half as wise as we give them credit for, their response ought to be, “What, does everyone become simple in the future? Do you all stop using English at some point and everyone just forgot? Go figure it out.Report

            • This gets at something that has always bugged me about Scalia. He claims to be a textualist and, with respect to the Constitution at least, an originalist. One of the cornerstones of his announced philosophy with respect to statutory interpretation is that the “intent” of the legislation is more or less irrelevant, and his scorn for legislative history is legendary. Intent, he would say (quite often correctly, IMHO), cannot alter the language of the statute; indeed, I recall him going so far as to suggest that legislative intent outside of the text is an oxymoron, since legislation is fundamentally an act of compromise in which every legislator who votes for it has a slightly different intent.

              Yet when it comes to his use of textualism with respect to the Constitution, he seems to effectively reject this philosophy (though he claims he does not) by being willing to alter the words on the page in order to render them ineffective outside of what he deems to be the specific intent of the ratifiers. He seems to try to get out of this by saying he’s not interested in the ratifiers’ or drafters’ intent, only the public meaning as understood at the time, but this only makes sense if he’s trying to figure out the public meaning of specific words on the page. In a lot of cases, including this one, though, he’s not using his understanding of public meaning to simply give meaning to the words on the page; he’s quite overtly using it to insert a whole slew of additional words – mostly caveats and restrictions – onto the page. In effect, he’s just using what he claims to be the “public meaning” as a synonym for the drafters’ intent, which of course is actually unknowable.Report

              • Avatar Jaybird in reply to Mark Thompson says:

                One of Scalia’s great zingers is (paraphrased, mostly) “Some people urge a Moderate reading of the Constitution. What is that, really? Halfway between what is says and what you wish that it said?”

                Well, here we see Scalia engaging in moderation.Report

              • Avatar Dave in reply to Mark Thompson says:


                Justice Scalia has always been a faint-hearted originalist and I think he’s even admitted to this himself.

                As you and I have both danced around the subject of constitutional law in years past, what do you think about dispensing with the notion that Scalia is a liar or a fool and argue that what he’s really doing here is almost textbook judicial restraint, to the point where there’s even the slightest controversy in fact patterns, he punts on the issue. I remember this being a major sticking point in Gonzales v Carhart (the Court took the legislative findings of fact and deferred to them without considering evidence to the contrary).

                For the record, I strongly dislike his approach here, but it’s nothing new. His comment about same-sex adoption bans being a result of disputes amongst sociologists was more obnoxious than what’s shown above IMO.Report

        • Avatar Stillwater in reply to Jaybird says:

          I think the issue is the argument justifying overturning it. If it’s that states don’t have the right to exclude gays from marrying, then it’s a victory. If it’s some technicality based on the merits that would permit states to prohibit SSM via some other rationale, then it’s still a victory, just less so. (For example, that referendum isn’t a legitimate method to enact these types of restrictions, or something along those lines.)

          Personally, I don’t see how they can sustain Prop 8. And I don’t see how they can reject it with an argument narrowly enough to permit anti-SSM legislation in other states. But these guys are smart and clever(!) so I’m sure I’ll be surprised by the final ruling and opinions.Report

  11. Avatar North says:

    I’m inclined to agree with Sully: the kind of course change that a Sweeping Supreme Court decision represents strikes me as a bad idea to root for when the SSM issue seems to be on such a good roll in such a good direction.

    The partisan Democratic hack in me also notes that a Supreme Court edict would also give the GOP cover to try and paper over the rift that is developing in the party between their intelligentsia/business wings and their social con base. Having writhed my way in anguish through the 2004 elections on this issue I really don’t feel like throwing them a lifeline here.Report

    • Avatar James Hanley in reply to North says:

      Eh, it seems to me that these types of changes have happened so often before that worrying about another one is pretty weak tea. It smacks of, “Sure, we’ve never gone off the rails before, despite all our warnings, but this time we really will!” It’s especially weak tea, when the sweeping change is in the direction of just treating people equally, which is in itself a pretty strongly stated constitutional principle.Report

  12. Avatar Jason says:

    Obviously a child as better of in loving ss parent home rather then abandoned, abusive os parent up home, or maybe even divorced home. Modeling aloving relationship is important. BUT ther are differences. Whether it is social indifferences, psychological gender roles or sexuality influence. Everyone is influenced by others around them.

    Like stats they say a child/person is x times more likely to be violent/harmed due to certain games/weapons in the home is subjective to who is performing the study.Report

    • Avatar Patrick Cahalan in reply to Jason says:

      … is subjective to who is performing the study.

      Not if they’re good studies, they aren’t. Now granted, not every study can be good. And there really shouldn’t be anything wrong with publishing results that have very limited findings.

      Finding something that seems interesting but can’t be generalized is very often the first step towards finding something that actually is interesting, after all. It’s the follow-up studies that matter.

      The crap part is when people take findings with limited generalizablity and ignore that the findings are limited (frequently, you also see them discard follow-up studies that discredit the original study based upon their own ideology rather than the methodology or the findings).

      Our news media does it every day in science reporting. It probably contributes more to the inability of Americans to parse science data than bad schooling.Report

  13. Avatar Ryan Noonan says:

    I’m sort of glad more and more people are beginning to realize what an awful hack Scalia is. For a really long time, he sort of coasted on this notion that he was a super smart conservative with whom we could agree to disagree or whatever. It’s always been just total baloney. He’s a right-wing maniac, and what’s much worse, he’s just plain cruel. He is a mean, small person who deserves nothing but contempt.Report

    • Avatar Jaybird in reply to Ryan Noonan says:

      Not always is he part of the problem, though. Read Florida v. Jardines (hot off the presses!) and you’ll see that he and Ginsburg are on the side of the angels.

      He’s very, very good when he’s very, very good.Report

      • Avatar Ryan Noonan in reply to Jaybird says:

        That’s only because the dog wasn’t sniffing anyone’s panties.Report

      • Avatar Patrick Cahalan in reply to Jaybird says:

        Case in point, from today:

        “We think a typical person would find it `a cause for great alarm’ to find a stranger snooping about his front porch with or without a dog,” Scalia said. “The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base path, to use a baseball analogy – so long as they `stick to the path that is typically used to approach a front door, such as a paved walkway.’ From that vantage point they can presumably peer into the house with binoculars with impunity. That is not the law, as even the state concedes.”

        No Dogs Allowed.Report

      • Avatar greginak in reply to Jaybird says:

        “He’s very, very good when he’s very, very good.”
        Well yeah….that guy who bats .214 and hits 1 homer a year looks great when he hits that one dinger.Report

  14. Avatar ktward says:

    Antonin Scalia is either a fool or a liar

    Can’t he be both?
    I mean, one can be both exceptionally learned and intelligent and still be a bloody fool, right? (No shortage of examples there- just google Love. 😉

    It’s surely more laborious to prove Scalia a liar, but I suspect it can be done without breaking too hard a sweat. I say this because it’s long been my observation that ideologues inevitably end up lying at some point as a means of self-preservation. I’ve never seen any significant movement from Scalia that makes me think he’s an exception to that rule, particularly when it comes to religion-oriented issues.Report

  15. Avatar Rufus F. says:

    Honestly, looking around the town where I live, I’m not convinced that heterosexuals make good parents.Report

    • Avatar Stillwater in reply to Rufus F. says:

      Heh. I’ve been waiting for someone to flesh out an argument like this. Of course, the argument against gay marriage isn’t that members of Traditional Marriages can be and very often are disastrously harmful to children. That’s normal! That’s the baseline!

      So that argument wouldn’t really show anything. If gay-parenting harms children in a way that hetero-parenting doesn’t – or this! if gay parenting potentially harms children in a way that hetero-parenting can’t! – permitting it would be a high moral crime against humanity.Report

      • Avatar Jaybird in reply to Stillwater says:

        (Assuming only zeroes and sixes for the sake of brevity)
        Well, one of the main dynamics is that if you get a bunch of heterosexuals together, children just suddenly start showing up like magic. Perhaps even in alarming numbers.

        If you have a similar number of homosexuals intermingling, the number of children that appear is significantly less magical/alarming.

        As such, the homosexual couples that become parents are ones that have sought this status out. They’re the couples best compared to two parents who say “let us have a baby together, you and I”.

        And, all other things being equal, I’m willing to say that the parents who say “let us have a baby together, you and I” are likely to be better parents than the parents who say stuff like “oh, the calendar says that I won’t start ovulating until tomorrow so we don’t have to worry about anything.”Report

        • Avatar Jason Kuznicki in reply to Jaybird says:


          I’ll add that if you choose to adopt, your route to kids is considerably less pleasurable for all involved. I’ve heard all about this “pregnancy” thing, and if I’d had a choice, I’d have done that instead.

          A proper study would compare gay and straight parents, both of whom adopted their children. That would control for parental self-selection and presumably tell us something about respective parenting abilities and the differences, if any, between children so raised.Report

    • Avatar Will H. in reply to Rufus F. says:

      Most of them aren’t.Report

    • “Honestly, looking around the town where I live, I’m not convinced that Ti-Cat fans make good parents.”


  16. Avatar alanstorm says:

    “Antonin Scalia is either a fool or a liar”

    Your statement indicates that you need to relax and examine your premises. Nothing in your statement indicates that Scalia is aware of the study you mention. If that were the case, you might have standing to say that. If it’s not, or unknown, you’re simply making an emotional statement based on nothing.

    I also notice the the AAP statement you quote says that MANY studies support their conclusion. The implies that there are those that don’t, does it not?

    I’m not saying that you’re wrong, but nothing in your post indicates anything other than an attitude of “I believe this, therefore everyone else should too!”Report

    • Nothing in your statement indicates that Scalia is aware of the study you mention.

      1) That would make him a fool for pronouncing in ignorance on a scientific question.

      2) It is not a study. It is a policy statement that references other studies, accumulated over the span of the past three decades or so.

      I also notice the the AAP statement you quote says that MANY studies support their conclusion. The implies that there are those that don’t, does it not?

      None that I am aware of, beyond the already-referenced, widely-discredited Regnerus study. Please feel free to cite another if you are aware of one. You will, in the meantime, have to forgive my skepticism.

      nothing in your post indicates anything other than an attitude of “I believe this, therefore everyone else should too!”

      What a confounding thing to say, particularly in light of what I wrote yesterday. I believe this, not only because it comports with my own sentiments and observations, but because (as the AAP statement makes explicit) there is ample scientific evidence to support it. Did you read the OP?Report

      • Avatar Patrick Cahalan in reply to Russell Saunders says:

        Not to mention the fact that there’s typically oodles and oodles of amicus briefs filed in these cases, particularly for the purpose of informing the judges of the non-legal information that is relevant to the case in point.

        So maybe he’s not a fool or a liar, he just didn’t do his homework.Report

  17. Avatar Rufus F. says:

    Something I’m wondering that’s probably a bit off-topic: if the studies seem to show that children of gay couples are equally likely to turn out well-adjusted as kids with married straight parents, are the kids equally likely to be gay when they grow up or is there any difference there.Report

    • I used to have a citation handy to answer that very question, as I hate to give “trust me!” answers to that kind of question, but I don’t remember it off the top of my head. (I had it at the ready when I testified in favor of marriage equality in Maine in 2009.) But the answer is that children raised in same-sex parented households are no more likely to be gay or lesbian than those raised in “traditional” homes.Report

      • Oh, you testified in Maine? My dad lives on an island off Portland. I asked him once about same-sex marriage because he’s an old Reagan Republican and his answer was, “Well, my neighbors are lesbians and I don’t see why they shouldn’t be able to get married, so sure.” I was pretty surprised that it took a couple tries there.Report

        • You can see my testimony if you search for it using my real name.

          I think we lost in 2009 because it was an off year for major elections. It was a total punch in the gut. The Better Half and I just attending the annual EqualityMaine banquet this past Saturday night. During the festivities they played a very well-done video charting the course of the various electoral outcomes, and the bit from 2009 was still kind of tough to watch.

          And if your dad lives in an island off the coast of Portland, he lives in a wicked awesome location. But not one that necessarily reflects the social attitudes of a lot of the state.Report

  18. Avatar Pyre says:

    Perhaps it will not sway Scalia but I’d like to thank you for the link.

    Ages ago, when I was thinking about how I felt about gay marriage, the only sticking point that I could never really resolve in my head was the effect on children. Not the fear-mongering child molestor angle but more along the lines of “What are the effects on a child that is raised by two parents of the opposite gender?” Can two men adequately assist a girl in understanding/coping with the changes that come with puberty? If a boy has issues, does the lack of a male figure in a lesbian relationship have a detrimental effect on the boy’s development?

    Eventually, the answer that I came up with was something of a cop-out. “Well, as long as the boy/girl is raised in a loving household, that’s what’s important.” Every so often, I’d come across something that would address the issue but those articles tended to be championing one side or the other as a premise before they’d come out with “what they found”.

    It is good to see that the question has been analyzed in a politically neutral environment and has been answered scientifically. Thank you for that.Report

    • Avatar BlaiseP in reply to Pyre says:

      I have this theory on raising kids. Every child needs about six people who are absolutely crazy about him/her. Two people just aren’t enough to raise a kid. The Romans used to say “grandparents and grandchildren are natural allies: they already have an enemy in common.” See, parents ought to be the Authority Figures, to the extent authority is needed. But most of what kids need in life doesn’t come down to authority but wisdom and love.

      There are plenty of children of same-sex relationships who manage just fine. On a lighter note, it must be a special sort of merry hell, though, to be raised by two gay men, two guys giving your fashion choices the Ol’ Stink Eye.Report

      • Avatar Barry in reply to BlaiseP says:

        ” The Romans used to say “grandparents and grandchildren are natural allies: they already have an enemy in common.” ”

        That is frikkin’ hilarious!Report

  19. Avatar Barry says:

    BTW, the answer to the original question is ‘Liar’. I’ve been amazed recently that Scalia either doesn’t feel the need to hide behind even pretense of intellectual mumbo-jumbo – or can’t any more.Report

  20. Avatar Ken says:

    Jaybird: Well, one of the main dynamics is that if you get a bunch of heterosexuals together, children just suddenly start showing up like magic.

    Exactly, and that’s the argument that the opponents of SSM are now making. As so memorably inarticulated for us by Charles Cooper today, marriage doesn’t have anything to do with relationships, love, or having a companion for life. It’s not about legal stuff like tax rates and survivor’s benefits and visitation rights. And it certainly isn’t some sort of sacred institution, a recognition by the community that two people are now one in the sight of God.

    No, the only purpose of marriage is so the state can regulate copulation, a power given to it by Article cough Section mumble of the Constitution, the famous “Breeders Clause.”Report

    • Avatar Jaybird in reply to Ken says:

      Please understand: when I say that heterosexuals are prone to make babies, I’m not making an argument as much as trying to state a premise upon which we can all agree.

      The argument that I’d make is that the gay folk who go out of their way to adopt children are much more like the heterosexuals who go out of their way to have children (and, as Jason pointed out, the heterosexuals who adopt map even better).

      Throw in a handful more premises in there and you can end up with something like “life partnerships with two adults who go out of their way to have children are more likely to produce decent parents than heterosexuals who just do that thing that heterosexuals do when it gets cold or boring.”Report

      • Avatar Ken in reply to Jaybird says:

        Oh, I agree with what you are saying. I just find the anti-SSM side’s argument about the purpose of marriage hilarious, since they say they want to defend traditional marriage.Report

      • Avatar Shazbot5 in reply to Jaybird says:

        Gay people can have children naturally to, e.g. a case where a gay many sleeps with a woman in an ill advised affair with a woman, a gay woman gets raped, etc.

        Gay people are not analagous to people who never reproduce accidentally. Rather, they are analagous to people who reproduce accidentally with less frequency than most healthy adults.Report

  21. Avatar Michael Cain says:

    But whatever the outcome in the coming weeks of the Court’s deliberations…

    This is a difficult question. I believe that Roberts sincerely doesn’t want to go into the history books as the Chief Justice under whom the SCOTUS became a purely political beast. There are at least three things where he’s got to try to find a consistent compromise: DOMA, the Ninth Circuit’s decision to overturn Prop 8, and a batch of other states that have now approved same-sex civil unions. Too a lesser extent, a whole bunch of large employers that operate in many states, some of those companies willing to extend spousal benefits to same-sex couples, some not. If he can’t get those reconciled, he’s forced to hear case after case in the future. If forced to bet, I think I’d go with basically the same sort of thing we got with the PPACA: Roberts and the four liberal justices reach some sort of ugly compromise. Kennedy may support them on some parts and not others. The three hard-conservative justices have to settle for writing whiny dissents.Report

  22. Avatar zic says:

    I have been wondering about the politics of this; and in particular, the politics of the Republican Party going forward. (I know, SC judges are not supposed to base decisions on their politics, but let’s pretend they do, anyway.)

    I can see one or more of the conservatives on the bench voting with the liberals, and the court declares discrimination against SSM unconstitutional, for numbers of political reasons, including moving the conversation along so that it stops alienating potential new Republican voters, or (inversely) increasing agitation and activism with time for organization before the next presidential election (appoint more conservative judges), or just to move the question since otherwise, the courts will be hearing it over and over until it’s settled?

    Am I just wishful thinking, or do such things actually happen?

    And in the realm of wishful thinking, when we can expect Scalia to spontaneously combust? Will it be as icky and graphic as when Krook combusts in Dicken’s Bleak House?Report

    • Avatar Will H. in reply to zic says:

      The domestic relations exception is a long-recognized judicial doctrine; which is basically that the federal courts will never become involved in marriage/divorce, child custody & support, and probate matters.
      I think it’s more likely they would declare DOMA to be unconstitutional. I think that was narrowly written though to only apply to the federal gov’t.Report

      • Avatar zic in reply to Will H. says:

        Thanks Will H. I’m very pleased you pretty much always take the time to answer my silly and ignorant legal questions; at least supplying me with the proper search terms to learn more. I’d never heard of domestic relations exception before.Report

        • Avatar Will H. in reply to zic says:

          You’re welcome.
          FTR, I’m not an attorney; just a smart-ass. But I know a little bit . . .

          A bit deeper though . . .
          The domestic relations exception is something of an extension of the doctrine of comity; that federal courts will show respect for the decisions of state courts, & vice versa.
          One of the terrible side effects has been removing the family law courts from more stringent judicial review (for the most part).

          There have been a few notable exceptions. Stern v. Marshall and it’s progeny come to mind. That one evolved from a bankruptcy court though, another court of limited jurisdiction. Odd how those things happen.
          I don’t think bankruptcy courts are bound by the domestic relations exception, come to think of it. I think the family law court is stayed by the bankruptcy.
          I remember seeing a case where an family law attorney was sanctioned by a bankruptcy court for attempting to enforce a support judgment.

          Odd how after so many years of having these laws, there are still so many gray areas.Report

  23. Avatar recovered republican says:

    What angers me more is when he intimated that Loving v Virginia was wrongly decided.

    Scalia isn’t an idiot. He’s a smart, racist, sexist pig. When he dies the nation will be better off and I shall make a special vacation trip to piss on his grave.Report

  24. Avatar Shazbot5 says:

    My favorite part was the weird exchange between Scalia and Olson where Scalia asks the insane question “When did gay marriage become unconstitutional?” Scalia went on to claim (not an argument, really) that he couldn’t decide the case if he didn’t know when it became unconstitutional.

    Olson eventually pointed out that this question can’t be relevant, as it wasn’t relevant in Loving, for example.

    I’d have answered, “It becomes unconstitutional after this court decides it is unconsitutional. As of right now it should be decided to be unconstitutional, by you. Or maybe it has always been unconstitutional, but a thick haze of bigotry and false and unfounded beliefs about the pernicious effects of gay parents blinded justices from seeing that it has always been unconstitutional.”

    I’m not sure if this makes Scalia stupid, but it shows the ridiculous (sometimes clever, sometimes dumb) mental contortions one has to go through to continue believing obviously false things.Report

    • Avatar Mike Schilling in reply to Shazbot5 says:

      Scalia’s implication is that since none of the people who passed the 5th or 14th amendments thought they were furthering SSMs, it’s nonsense to argue that the rights those amendments ensure include SSM. Think of it as a dead Constitution joke. (What’s the difference between a dead Constitution and a trampoline? When you jump on a trampoline, you take your golf shoes off.)Report

      • Avatar Shazbot5 in reply to Mike Schilling says:

        Interestingly, there is a question about whether if you are intentionally furthering X, and unbenownst to you X’ and X” are implications of X, we would be able to say that you were intentionally firthering X’ and X”, even though you didn’t think you were.

        So, I would say the Ancient Ones planned for SSM, they just didn’t think they planned for it.Report

  25. Avatar Shazbot5 says:

    Also, I had a question about the rational basis test.

    At multiple points it was argued that gay parents could, conceivably, have some negative effect on children or gay marriage could, conceivably, have a negative effect on the rate of heterosexual marriage, somehow via “culture.” (At one point they argued this was a disanalogy with Loving where there were more decades of states with interracial marriage and thus more data.)

    Is that all you have to say to pass the rational basis test? If I say that group X voted for law Y because they thought it was conceivably possible that God might destroy the universe over his anger at Y, does that pass the rational basis test?

    And if so, given that any policy Y could conceivably have some monstrously negative effect, no matter how implausible, wouldn’t every policy pass the rational basis test?

    No one challenged this point. I am certain on this: There is no plausible way that gay marriage could have any negative effects on children or heterosexual marriage. It is not the case that we don’t have enough data and so we can’t be sure gay marriage doesn’t have harms. There is no plausible way that gay marriage could be harmful and all of the data we have, which is ample, leans one way. (Also, would Loving have been a bad decision if it had been made earlier, when there was less data? No.)

    I am worried that the court will take a let’s wait and see attitude on the basis that it is rational to think gay marriage could be harmful, when that isn’t rational, if “rational” means “minimally plausible” and not just “conceptually possible” (as it should if the rationa basis test is to mean anything).

    Kennedy will write for the majority, knociking down Prop 8 on narrow grounds.

    This will set up legal battles in states with no civil unions where gay couples will sue for discrimination, and the court will need to determine answers to all of the questions before it, that it already knows the answer to, and marriage equality will come, inexorably, to the south, eventually. It should come earlier to the South bit the court is being politically cowardly.Report

    • Avatar Shazbot5 in reply to Shazbot5 says:

      In other words, shouldn’t the court conclude, “there is no rational basis, even though one day we could discover one” and not “since we might one day discover a rational basis, there is a rational basis right now.”Report

      • Avatar Mark Thompson in reply to Shazbot5 says:

        shouldn’t the court conclude, “there is no rational basis, even though one day we could discover one” and not “since we might one day discover a rational basis, there is a rational basis right now.”

        Should they? Absolutely. Will they? No. Or at least, probably not.

        There’s two reasons for this – as a general matter, courts will try to avoid questions of constitutionality if they can dispose of a case without reference to such questions. So, if a majority of justices agree there’s no standing then even under ordinary circumstances there’d be an excellent chance they would decline to reach the constitutional question (whether or not the Court should find standing here is a separate question, though I personally think there is or should be standing here). Since it seems likely that the liberals plus Roberts and maybe Kennedy will find a lack of standing, this is probably the outcome we’ll see here.

        BUT the dissenting conservatives almost certainly will find standing,* which means they’ll have to address the rational basis question. They, of course, will find the existence of a rational basis. They’ll be wrong, IMHO, but they’ll be able to justify their argument on the grounds that rational basis review is an exceedingly low bar, which it is – there’s shockingly few examples of laws failing rational basis review. Still, I’m not aware of any cases where the potential for an unspecified and unarticulated harm has constituted a rational basis, and they’ll have to do some serious mental gymnastics to get to that point.

        *I’ll be mildly amused by this when it occurs since I struggle to think of a case where the liberal wing found a lack of standing but the conservative wing found standing.Report

  26. Avatar zic says:

    A tangent question on today’s SC hearings vs. yesterday’s: what are the differences in standing between the two cases? I don’t get it. Yesterday, in hearing Prop 8, there was the question of standing when the Executive branch of the State of California didn’t want to defend the law; and seeming a trend to not hear because of lack of standing. Today, we have another law that Executive branch of the Federal Government doesn’t want to defend.

    Are these the same only different? I feel like I’m missing some nuance here.

    Same again with State’s Rights arguments; they’re entailed in both cases, but the SC seems to use the argument to differing ends based on the outcomes they want.

    A comment (or even better, a post from someone so inclined) would be most helpful in comparing and contrasting the future of SSM as it now rests in the hands of nine men and women on our highest court.Report

    • Avatar Jaybird in reply to zic says:

      Prop 8 was an issue for California but not any of the rest of the states. (On top of that, there was an issue where Gay Marriage was legal for a while, then illegal until Prop 8 passed, and all sorts of sticky Constitutional issues there… but it looks like the issue they’re tackling will be California only.)

      DOMA, on the other hand, involves not just the States but Interstate Dynamics (which may as well be “commerce”) and also Federal attitudes toward Same Sex Couples including taxation, Social Security, and so on. On top of that, there’s the “Full Faith And Credit” thing going on if someone marries in Massachusetts and then moves to, oh, Utah. If Utah doesn’t treat their Massachusetts marriage as valid, does that violate the Full Faith and Credit clause of the Constitution?Report

      • Avatar zic in reply to Jaybird says:

        I get that; but I don’t understand why there would be any difference in standing since in each case the executive branch of the governing body opted not to defend and defense fell to others. Seems like they should both be handled exactly the same way; either the defenders have standing or they don’t in each case.Report

        • Avatar zic in reply to zic says:

          And I think the problem here is that applying the same standard (forgive if I’m mangling legal terms with my non-legal probing here) to each case results on opposing outcomes; no standing means SSM in CA in the Prop 8 case; no standing also means DOMA stands, and that CA marriage gets no federal recognition.

          Then the question of what happens when the CA couple moves to Utah crops up.

          Really it would be easier to recognize that marriage is marriage is marriage and creates a family with shared obligations and shared rights, no matter who’s marrying.Report

          • Avatar Mark Thompson in reply to zic says:

            no standing means SSM in CA in the Prop 8 case; no standing also means DOMA stands, and that CA marriage gets no federal recognition.

            This doesn’t sound right to me. I haven’t read the transcripts, but to my knowledge the standing at issue in the DOMA case is that of John Boehner’s group, not that of the widow. In other words, just as in the California case, it’s not a question of whether there was standing to challenge the law, but rather whether there is standing to appeal the trial court’s ruling. Since DOMA was overturned at the trial court level in Windsor, a finding of no standing would, in effect, leave the trial court decision as the law of the land. This would be the same outcome as a finding of no standing in the California case.

            As for the difference in standing in the two cases, and keeping in mind that I’ve not read the transcripts, the argument would be that Congressional leadership has a vested interest in defending the Constitutionality of its laws in a way that the average citizen does not have.

            I’m not at all convinced that this is a meaningful distinction from the California case, but it’s at least a non-frivolous distinction.Report

        • Avatar Jaybird in reply to zic says:

          Given the number of homosexual couples that are Dual-Income, there’s a lot of money to be made in tax revenues for overturning DOMA. Overturning Prop 8? Eh. Let California worry about California.Report

      • Avatar Mike Schilling in reply to Jaybird says:

        If Utah doesn’t treat their Massachusetts marriage as valid, does that violate the Full Faith and Credit clause of the Constitution?

        Here’s what seems to be to be a first-rate explanation of DOMA and the FFC. Summary: it’s a really complicated question, but ending DOMA does not mean ipso facto that all states must recognize SSMs performed in other states.Report