First Monday 2014

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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75 Responses

  1. From the point of view of someone who supports ssm, what’s the worst that can happen if the court hears the cases? How much can it limit/roll back what the court’s already done? I suppose in theory, it could overturn Windsor, etc., entirely, but I suspect the court wouldn’t overturn a ruling so soon after it was issued. I’m asking more about what could happen?Report

    • James Hanley in reply to Gabriel Conroy says:

      About all the could happen, I think, is that they’d say the states aren’t bound to allow SSM, that they can ban it. That would leave it as a statewide issue within the purview of state-level politics and constitutions.

      Some states where a lower level court has overturned bans would probably re-file their cases to the lower court to have those rulings overturned based on the SCOTUS ruling. But in some of those the issue probably is already declining in political salience, so they might not bother to fight to restore their bans.

      If they did, and won–as they probably would in such a scenario–they’d have the problem of some SSM marriages in their state, while not allowing others, which would lead to a renewed round of legal challenges on slightly different legal grounds.Report

      • Road Scholar in reply to James Hanley says:

        I wouldn’t be terribly surprised over a ruling that said, in effect, that states can prevent you from becoming married in that state but nonetheless have to recognize ssm marriages from other states. Being legally married here but not over there just has too many screwed up legal consequences to let stand.

        We had an interesting brou-ha-ha a few years ago over a similar question. The age of consent is a year or two lower in Nebraska than Kansas. So a couple of teenagers ran away from their home in Kansas, crossed the line into Nebraska and got married. When they returned to Kansas, at the girls’ parents insistence, the boy was arrested and charged with statutory rape. To complicate things of course, she was pregnant.

        I don’t recall how the thing was ultimately resolved, but there was a lot of public sympathy for the kids on the basis that while they shouldn’t oughta done what they done is it really the best thing to throw baby-daddy in jail?Report

      • James Hanley in reply to James Hanley says:


        That could happen, but it would be weird in that the Court has never put marriage into Full Faith and Credit Clause territory, but has treated it under their made-up Public Policy Exception. So as logical as it sounds as a result, the underlying rejection of precedent would be a significant legal change in itself.Report

      • Road Scholar in reply to James Hanley says:

        Update: As of today we have ssm in Kansas thanks to a federal judge. Woo-hoo!Report

      • James Hanley in reply to James Hanley says:

        And all the people said, “Amen!”Report

      • Amen! Congratulations to Kansas and the happy soon-to-be-married Kansans!Report

  2. Michael Cain says:

    Probably happening later this month will be another matter related to the question of how much power voters can take away from their state legislature. Colorado’s Tax-payer bill of rights amendment (TABOR) back in the 1990s removed the legislature’s power to raise taxes; all they can do is put a proposed increase on the ballet for the voters to approve/disapprove. A few years back some members of the legislature challenged TABOR in federal court on the grounds of the Establishment Clause, that setting tax rates is such a fundamentally important government role that Colorado no longer has a “republican form of government”. The state’s half-hearted defense of TABOR has been based on (a) it’s a political question and (b) the SCOTUS has (implicitly) said that the Establishment Guarantee Clause is solely a matter for Congress, not the courts. So far, the District Court, a three-judge panel of the Appeals Court, and the Appeals Court en banc have said that the SCOTUS hasn’t put the Establishment Guarantee Clause outside the reach of the courts and that this case is sufficiently different from the precedents to go forward to trial. By my reckoning, the state has until October 22 to appeal to the SCOTUS, or things go back to the District Court. I don’t see the appeal not happening.Report

  3. Vikram Bath says:

    is “mere possession” of this weapon a “violent” felony?

    This doesn’t even seem like an interesting question. Still, I’m sure we’ll have at least one dissenting opinion that argues that it is through some mangling of what the word “violent” means.

    In North Carolina, a vehicle can drive with only one working brake light, so there was no equipment violation. Should the evidence gathered after the stop be suppressed?

    I think it’s fair to say that at least over the past ten years, the Court has never seen a search it didn’t like. I don’t follow their decisions that closely, but every time I have heard a ruling on this type of issue the Court sides with the police though Scalia will give us a nice rousing dissent into the aether about how freedom is supposed to be an actual thing.Report

    • Road Scholar in reply to Vikram Bath says:

      I think it’s fair to say that at least over the past ten years, the Court has never seen a search it didn’t like.

      Well… didn’t they just recently declare that a search warrant was needed to search your cell-phone? That’s positive at least. But it does seem that they’re pretty loose on the whole “probable cause” thingy. In particular, they’ve been pretty generous to the police vis-a-vis precisely how contraband was discovered and whether such evidence should be suppressed. I’m not optimistic.Report

      • Ah, good point. I do remember that now that you point it out. I think my subconscious thought that that ruling was “obvious” (to me), so it wasn’t coming up when I was recalling recent cases. They do deserve credit for that.Report

    • James Hanley in reply to Vikram Bath says:

      Also, they ruled that the police can’t walk a dog up to your front porch to sniff for drugs, and get a warrant based on that.

      Not that I want to suggest the Court’s been particularly good on the 4th Amendment.Report

      • Road Scholar in reply to James Hanley says:

        I hadn’t heard about that one. It seems the distinction they like to make is between a deliberate search for something and an incidental discovery, even if the latter is in a questionable context.Report

    • Burt Likko in reply to Vikram Bath says:

      I dunno, @vikram-bath . Given that a prosecutor chose to charge for the sentencing enhancement, I’d say the issue is interesting to at least some people. Taking the prosecutor’s side of this arguendo, is there some sort of use of a short-barreled shotgun that is not violent? Seems like the short barrel would make it a poor choice for skeet.Report

      • Mad Rocket Scientist in reply to Burt Likko says:

        Technically, the length of the barrel has nothing at all to do with violent action. One could argue that a short barrel indicates nefarious intent (in making the shotgun a bit more concealable while severely degrading the accuracy & effective range), but that in & of itself is not violent.

        I worry about the extension of such language to cover intent, since it can lead to bad places. Or should we outlaw cars with big engines, or off-road trucks, because the owner might buy such with the intent of being able to evade the police? How about encrypted cell phones?Report

      • Vikram Bath in reply to Burt Likko says:

        is there some sort of use of a short-barreled shotgun that is not violent?

        Technically yes: possessing it. 🙂Report

      • Collecting firearms is common enough, and hardly violent. Not that this particular defendant was likely to have been collecting, but I don’t agree with MRS that we shouldn’t be taking intent into account for purposes of determining whether a felony is “violent.” Either it’s violent or it’s not. And it’s not as if the guy gets off scot-free if the answer to this is no – he just avoids qualifying for the enhancement.Report

      • Tod Kelly in reply to Burt Likko says:

        I’ll dive down the slope again here.

        If the guy had been found with his station wagon full of fertilizer, propane tanks and gasoline, would it be ok to assume violent intent?

        I’m not sure that my opinion on this case differs from anyone’s here, but I must confess I’m a little more sympathetic than everyone else to the idea that a white supremacist just released from prison being caught illegally carrying around a sawed off shot gun might show up to a prosecutor as something requiring more than whatever penalties my dad mailing me a skeet gun might warrant.Report

      • Mad Rocket Scientist in reply to Burt Likko says:


        I think you misunderstand me. I’m not saying that intent can not be used, only that it should used carefully. Illegal possession of a firearm absent any other factors should not be considered a violent felony.

        For instance, a guy busted with said shotgun while driving to his moms house – non-violent.
        If they have evidence that he was intending to blow mom away once he got there, and they can make that case (what would that be, conspiracy to commit murder?, or just assault?), then I could see an argument for treating the possession as violent, since immediate violence was intended.Report

      • Mad Rocket Scientist in reply to Burt Likko says:


        That depends, does said person have a legitimate reason to be hauling around lots of fertilizer, diesel, & propane (like, say, he’s a farmer, or he’s in the business of selling these items, or he has a hobby farm outside of town he is setting up).

        Of course, this example pushes into another area of regulation that I find offensive, that of Constructive Possession, wherein the very act of owning the components of something prohibited is used as evidence of trying to own said prohibited item.

        The BATFE uses this a lot, and gets slapped around by the courts from time to time for stretching the bounds of reason with it (most recently with a case of a guy having the tools & materials to build a suppressor, but no actual suppressors, or partially built suppressors were found). Personally I find the limits of Constructive Possession to be far too broad, since a showing of intent is not usually required, AFAIK.Report

      • Tod Kelly in reply to Burt Likko says:

        @mad-rocket-scientist “That depends, does said person have a legitimate reason to be hauling around lots of fertilizer, diesel, & propane (like, say, he’s a farmer, or he’s in the business of selling these items, or he has a hobby farm outside of town he is setting up).”

        I think you’re actually underscoring my point here.

        The prosecutor didn’t arbitrarily charge Samuel James Johnson with violent intent; they added that on because of who he was and what he had been convicted of in the past.

        My point is that Samuel James Johnson is actually the kind of person I would insist we detain were he caught with a car foul of fertilizer, propane and gasoline — because waiting until he’s blown up a building to prove he intended to do bad things seems like a really, really terrible idea. And I confess, I kind of feel the same about him being caught with a sawed-off shotgun. To me, it’s not remotely the same as some gun collector having an unusual firearm hanging on his wall.

        Does that create a kind of Constitutional double standard for people like Samuel James Johnson? It does, obviously. And while I’m not so sure that I would rule against him in this particular case, I have a sense that folks here are wondering why someone would even support that kind of move by a prosecutor. And Im just saying, I actually do get why someone would support it. I’m totally leaning on that fence, even if i’m not willing to climb over it.

        This one’s not so black and white to me as it is everyone else here. (no pun intended)Report

      • kenB in reply to Burt Likko says:

        I’m with Vikram — this seems like a no-brainer. He wasn’t convicted of possession with intent to commit a violent act, he was convicted for possession. Treating this as a “violent” felony because of supposed intent would be punishing him for something that was never established in court.Report

      • Mad Rocket Scientist in reply to Burt Likko says:


        Oh I get why a DA would charge him like that, I just don’t think we should allow a DA to do so. Not because I have any special sympathy for people with felony records who are dumb enough to touch a gun when they clearly should know better, but rather because I don’t trust that a DA would only use such in the case of clearly dangerous people.

        Nope, I firmly believe there are an abundance of DAs who love padding their conviction records with weapons & terrorism convictions (and drugs), and I am loathe to make their job easier by letting them over charge people who made mistakes but did no harm, or who really, truly were acting with no ill intent, but can’t field a high end defense attorney.Report

      • @mad-rocket-scientist I overstated my point a bit there for purposes of brevity – obviously intent is something that can be taken into consideration; what I should have said was that there needs to be some sort of judicial determination as to intent beyond a reasonable doubt in order to say that the felony was a “violent felony” if there was no actual violence committed. That is not the case here, obviously.

        @tod-kelly I can understand why the prosecutor made the argument, and in the context of the 8th Circuit, the prosecutor was probably even correct in doing so. But that doesn’t mean the 8th Circuit was right in the first place (not that you’re saying they were) – it seems that it had previously ruled that possession of a sawed-off shotgun was a violent felony, despite the weight of authority in other circuits and despite some strong guidance from SCOTUS itself. So the issue is less with the prosecutor here than it is with the prior case(s) in the 8th Circuit (and, potentially, with the prosecutor in the prior case(s), though I don’t know any specifics about that case(s) to say anything definitive).

        It’s also worth re-emphasizing that the question here is not whether the guy had a legal right to be in possession of this, or even whether he should evade jail time. He clearly did not have a right to be in possession of it – it’s a felony for anyone to possess a functional sawed-off shotgun in the State of Minnesota, and it’s a federal crime for convicted felons to be in possession of a firearm. The issue is instead whether he should be subjected to a statutory maximum penalty of 10 years or a mandatory minimum penalty of 15 years. It seems pretty clear that possession of a sawed off shotgun is not, in and of itself, an act of violence.Report

      • Burt Likko in reply to Burt Likko says:

        Quibble: I think the barrel was manufactured that way, so technically it’s not a “sawed-off” shotgun.Report

      • Kolohe in reply to Burt Likko says:

        “How about encrypted cell phones?”

        Remember ‘the clipper chip’? It’s making a comebackReport

      • Tod Kelly in reply to Burt Likko says:

        @burt-likko Actually, I believe “sawed off” is interchangeable with “short-barelled,” and is used whether it was manufactured that way or modified by the owner.

        If memory serves, “short-barelled” is a relatively recent term that was coined by lobbyists and Congress to make NFA laws that governed sawed-offs sound less odious to the public.Report

      • Vikram Bath in reply to Burt Likko says:

        If the guy had been found with his station wagon full of fertilizer, propane tanks and gasoline, would it be ok to assume violent intent?

        That sounds like something that is probably already illegal for other reasons. It’s not like if we say that doing that isn’t violent, then the guy is free to go. You can still lock the guy up; you just can’t accurately characterize what he has done to that point as violent. (IMHO)Report

      • Mad Rocket Scientist in reply to Burt Likko says:


        ATF definitions are… entertaining when it comes to firearms. There is a graphic floating about the internet showing just how strange they can be.

        That said, a short barreled shotgun that is manufactured that way, rather than modified, is legal to own, but it must be registered as an AOW (Any Other Weapon). $200 tax stamp & a back ground check & you’re golden. If you modify your shotgun to have a short barrel (under 18″, IIRC), you need to register it as an AOW & pay the tax stamp.Report

      • Mad Rocket Scientist in reply to Burt Likko says:


        At the very least, unsafe transportation of dangerous substances.Report

  4. zic says:

    Just read that the Court opted not to hear any of the SSM cases without comment; weddings to commence soon in those states.Report

  5. Pub Editor says:

    Awesome summary, Burt. I always enjoy these posts.

    Looks like SCOTUS denied cert in all seven SSM petitions. Maybe the justices are waiting for a circuit split.Report

    • Pub Editor in reply to Pub Editor says:

      Oops. Posted before I saw zic’s comments.Report

    • Burt Likko in reply to Pub Editor says:

      There is already a split at the District Court level. So this may be the best guess available for the Supremes turning down review of a dispute that it seems is the very quintessence of what SCOTUS does.Report

      • Is denial of cert something that the Circuit Courts who have not decided one of these cases will have to take notice of? I’m thinking of the Fifth Circuit in particular, where the District Court upheld Louisiana’s ban.Report

      • Burt Likko in reply to Burt Likko says:

        Right, but the Fifth Circuit itself hasn’t sounded off on that yet. It might overrule the district court, and thus avoid creating a split with the Seventh Circuit.Report

      • That’s an answer, but not the opinion I was asking you (and the other real lawyers here) for :^) In making its decision, will denial of cert for appeals of similar cases in other circuits be something that the Fifth Circuit should/must take into consideration? Perhaps even just as a matter of form?Report

      • Burt Likko in reply to Burt Likko says:

        I can hardly see how the Fifth wouldn’t take that into account. Check out Lyle Denniston’s latest on this; I think he get it just about right, and pretty quickly under the circumstances — with SCOTUS having granted stays belaying implementation of SSM previously, there may have been some mixed signals, but this signal is definitely pro-SSM.

        Another thought I have, supplemental to rather than dissenting from Mr. Denniston, is SCOTUS may also be willing to let SSM get enacted on a circuit-by-circuit basis and not sound off itself on the issue, thus avoiding risking its political capital, until and unless a circuit gets out of line. As it stands, it’ll be easier to count the number of states that don’t have SSM after today’s orders and the anticipated circuit orders: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas. Note that this consists of the entirety of the Fifth, Sixth, and Eleventh Circuits, and five of the seven states in the Eighth Circuit (Minnesota and Iowa have adopted SSM as matters of pure state law).Report

      • Pub Editor in reply to Burt Likko says:

        SCOTUS may also be willing to let SSM get enacted on a circuit-by-circuit basis and not sound off itself on the issue, thus avoiding risking its political capital, until and unless a circuit gets out of line.

        Ann Althouse reached the same conclusion earlier today.

        I think the Sixth Circuit is getting ready to rule on a SSM appeal (they heard oral arguments back in August), and I expect that the Sixth Circuit will fall in line with the other Circuit Courts. This will further reduce the number of members in the list of states that don’t have SSM.Report

      • …SCOTUS may also be willing to let SSM get enacted on a circuit-by-circuit basis… thus avoiding risking its political capital…

        I think this is an excellent point, particularly with this court. My perception is that CJ Roberts wants to be sure that “his” court doesn’t get caught on the wrong side of certain social issues, by which I mean the Court rules one way while public opinion is moving rapidly in the opposite direction. SSM is one of those. I would argue that last term’s decision on regulating GHG emissions from stationary sources is another one — a tortured piece of work to get to the point of “Yes, regulate big power plants, coal-burners in particular, but nothing more.”Report

      • Stillwater in reply to Burt Likko says:

        thus avoiding risking its political capital,

        Sounds about right to me. But what do I know Iaskya(don’tanswerthat)?Report

  6. James Hanley says:

    I’ll make my wager on the non-delegation clause case now. The opinion for the court will repeat the hoary old trope that of course delegation of legislative authority isn’t allowed, but for reasons explained through an arcane mandarin reading of past precedent this, like all other delegations, isn’t really a delegation.Report

    • Jim Heffman in reply to James Hanley says:

      Which would be reasoning in keeping with NFIB v. Sebelius, where they ruled that while Congress might or might not have the authority to mandate purchase of a particular good or service, it did have the authority to institute new taxes, and that’s what the ACA did.Report

  7. Kolohe says:

    Maybe the court didn’t want the Bostics hogging up the docket.Report

  8. North says:

    If the courts don’t take up SSM, as it appears they’re not, that is de facto legalization in an absolute ton of states. Maggie’s head must be spinning like a top.Report

  9. Kazzy says:

    “Problem here is not the search of the vehicle after the traffic stop — the problem is the officer got the law wrong. In North Carolina, a vehicle can drive with only one working brake light, so there was no equipment violation. Should the evidence gathered after the stop be suppressed?”

    Pardon my French, but fuck yes the evidence should be suppressed. Ignorance of the law is not a defense for the accused. It sure as hell should not be an excuse for those charged with enforcing and upholding laws. Jesus fucking Christ… I don’t know why, but this is making me really angry right now.

    If the evidence is not suppressed, it opens the door to cops stopping anyone for anything, insisting they thought the stop was legal, and gaining fruits from the poisoned tree of Constitutional violations. No. Stop.Report

    • aaron david in reply to Kazzy says:

      It’s not making me really angry right now, as that seems to be how the entirety of the gov’t works and I have been really angry about that for years, but other than that, spot on.Report

    • Burt Likko in reply to Kazzy says:

      Yeah, and there’s some other hinckey things going on with the traffic stop, too — as in, the officer felt something suspicious was going on with the driver, although he could not articulate what that was at the preliminary hearing: the driver was staying in his lane, had his hands at the ten and two o’clock positions, and was driving approximately at the speed limit. In other words, we may be below the threshold of even reasonable suspicion here, much less probable cause. If the Fourth Amendment still means anything at all, the officer needs more than a hunch.Report

    • Tod Kelly in reply to Kazzy says:

      @kazzy @burt-likko @aaron-david I tend to agree with the three of you, but out of curiosity I’ll push this one further down the slope.

      If, rather than having seen a baggie that had led to a search that found cocaine, the cop had seen very bloody children’s clothes that had led to discovering a living or dead body in the trunk, would we still have the same angry reaction — or for that matter, even the same preference for ruling?Report

      • Burt Likko in reply to Tod Kelly says:

        Nice change of hypo! Keeps the legal issue the same but totally changes the sympathies.

        The legal issue being the same, the answer must remain the same. And I predict the answer would be the same as in @tod-kelly ‘s hypo rather than the one we all seem sympathetic for when it’s just drugs — it’ll come out in favor of admissibility, on something akin to the “exigent circumstances” of the “inherent evanescence” of evidence located within a vehicle.

        Then again, my first prediction for the term was already wrong, so take that for what it’s worth.Report

      • aaron david in reply to Tod Kelly says:

        One of the reasons that lawyers go to town over the exact wording of a law is (as I am sure you know) the fact that it is the actual law that matters, not the sympathies of an officer or jury. Weather it is a bag of dope, a smoking gun or bloody clown suit, an illegal search is an illegal search. Especially when someone, who is supposed to be the representative of the gov’t in such matters as tail light enforcement, doesn’t know the actual law they are using to gain a doorway into the land of permissible searches.Report

      • Kazzy in reply to Tod Kelly says:


        I’d be glad we found the (hopefully living) victim and chagrined that we had to let the guy walk.Report

  10. James Hanley says:

    much like Tom Brady, she intends to stay until she can’t do a good job anymore

    You hate Brady and/or the Patriots and/or Michigan so much that you passed up a perfectly good opportunity to criticize Rehnquist?

    Hmm, Michigan, yeah, that would make sense.Report

  11. LeeEsq says:

    Ohio v. Clark is an interesting question. Mandatory reporters aren’t technically accusing anybody of child abuse but merely reporting to the police that a particular child might be abused by somebody. My feeling is that they should fall under the Confrontation Clause if their report does result in criminal proceedings being instated against a particular person even if that person wasn’t named in the mandatory report. They aren’t an accuser in the sense that they are saying that somebody did a crime but if the report leads to a criminal trial than the Defendant should be allowed to question them on why they thought the kid was being abused.Report

    • greginak in reply to LeeEsq says:

      Mandatory reporting is usually to local CPS not to the cops. That is significant difference. Child abuse that gets referred to the cops is a fraction of all reported child abuse.Report

  12. Alan Scott says:

    As a soon-to-be educator, I’m not happy to see Ohio v. Clark on that list. If mandated reporting is considered an accusation, we really need to think about how mandated reporter laws work instead of just demanding that teachers show up in courts to defend anything they report, given how low the bar of what they’re supposed to report actually is.Report

  13. Stillwater says:

    I wonder if the court didn’t decide to leave SSM off the docket due to a deference to politics. If they decided that case right now, the itshay would hit the anfay, no matter how they decided the actual issue. And that’s not only because SSM is on everyone’s minds. Seems to me that the only way to deny SSM rights at the federal level, given that inter-racial marriage bans are unconstitutional, is to appeal to some crazy religious principle, which in turn places religious rights above secular ones in ways that I think even the conservative justices prolly view as pretty strained. (Given recent decisions.)Report

    • James Hanley in reply to Stillwater says:

      If they decided that case right now, the itshay would hit the anfay, no matter how they decided the actual issue

      Honestly, I think we’re past that point. The usual suspects would howl and call down the wrath of comic-book Yahweh, but there’s no rioting in the streets of Alabama these days, so I doubt many folks would pay much attention to them.Report

    • greginak in reply to Stillwater says:

      Yeah the supremes let the ACA and voting rights stuff go also, waiting for the politics to work themselves out.Report

      • Stillwater in reply to greginak says:

        To sorta answer you and James simultaneous: my own view is that SSM is so much closer to the hearts and minds of the folks invested in politics that it a decision really would create an itshay ormstay. The ACA was too complicated; voting rights too abstract. Gays marrying is right in yer face.Report

      • greginak in reply to greginak says:

        I thought gay marriage was down my throat and bending me over? You may be correct but it also could be the conservative judges didn’t want to take it on out of fear they inevitable would end up supporting SSM. Saying nothing was better then ending the anti ssm fight. But who knows who or how many judges didn’t want to take it up.Report

      • Stillwater in reply to greginak says:

        You may be correct but it also could be the conservative judges didn’t want to take it on out of fear they inevitable would end up supporting SSM.

        Which I hinted at (or proudly proclaimed, depending) in my initial comment! So, yeah. We agree on that atleast.Report

      • greginak in reply to greginak says:

        I guess we could still argue about agreeing.Report

      • James Hanley in reply to greginak says:

        A majority of the population supports SSM now. Almost half of baby boomers do, and majorities of each age cohort below them do.Among boomers and the silent generation, pluralities support it. A majority of men, and a majority of women, support it. A majority of white mainline Protestants and a majority of Catholics support it (Black Protestants and White Evangelical Protestants don’t, but their support has increased significantly). A majority of Evangelical Millenials support it. A majorit of Millenial Republicans support it. A majority of African-Americans support it. A majority of Hispanics support it. A majority of self-described moderate Republicans, and majorities of independents and Democrats, support it.

        Who’s left to cause a ruckus? Old white Evangelicals, mostly. They matter in Republican primaries and local bond issue votes, and that’s about it.

        I don’t think the Supremes are scared of them. They’ve either decided it’s probably not necessary, given that they accept only about 1/10 of 1% of cases to hear, or they’re waiting for a Circuit Split. Scalia et al probably don’t want to take it because they’re sure how Kennedy will vote.*

        It’s all over but the shouting, and there’ll be surprisingly little of that.
        *Kennedy can be said–in the context of SCOTUS–to have started this path with his opinion in Romer v. Evans back in ’94. Then he wrote the opinion in Lawrence v. Texas in ’03. He wrote the opinion in U.S. v. Windsor in 2013. I’ll wager a bottle of Buffalo Trace that if SCOTUS takes a case he writes the opinion and upholds a constitutional right to SSM. He has to want this–it’s his goddamed legacy–no other set of rulings he’s made will resound through history like these will.Report

  14. Michael Cain says:

    Re Kansas v. Nebraska and Colorado and Stewart and Jasper Orchards v. Jewell… Probably just my prejudices showing through, but I am… bothered that cases involving western water law, which is radically different from eastern water law, is being heard by a group of nine judges with law degrees from Harvard, Yale, and Columbia.Report