Showing posts from March, 2013

The "Defense of Children Act": Making More Sense of the Freestanding Federalism Argument in Windsor

By Mike Dorf Thanks to readers for a lively debate on my post on the federalism argument in the DOMA case.  As I noted in the original post and in reply to various comments, I'm not persuaded by the federalism argument standing alone (as opposed to the argument that federalism issues knock out potentially otherwise-legitimate grounds for states barring SSM.  That seems to me a stronger argument, but I have a hard time evaluating it because I think the potentially otherwise-legitimate grounds do not in fact justify laws barring SSM).  However, some commenters suggested that the freestanding federalism argument is crazy or incomprehensible.  I don't go that far so I've been trying to think of a hypothetical example that might make the case for the freestanding federalism argument more forcefully.  I've come up with the following: Suppose that, following United States v.   Lopez , Congress enacted the "Defense of Children Act" (or DOCA).  DOCA defines marria

Vegan Wine (Cross-Posting with the Society of Wine & Jurisprudence)

By Mike Dorf The leaders of the Society of Wine & Jurisprudence at Cornell Law School--yes, that is a real organization--asked me to write something for their blog .  I agreed to write about vegan wine.  Hence the following post appeared there  a couple of days ago and I'm cross-posting here today. ---------------------------------------------------------------------------------------------------------- As an ethical vegan, I am often asked strange questions.  “Would you eat roadkill?”  “If you were in a lifeboat with a cow, a chicken and Dick Cheney, which one would you eat first?”  Etc. These questions are not silly merely because they are hypothetical.  Lord knows that as a law professor, much of what I do is ask my students hypothetical questions, often quite bizarre ones .  I do so to test the principle that a court or a student has espoused (e.g., “the federal government lacks the power to regulate inactivity”) by exploring circumstances in which the intuition unde

Political Analysis From Deliberately Unqualified Sources

-- Posted by Neil H. Buchanan In my Verdict column yesterday , I returned to the familiar territory of debunking conservative talking points about the federal budget deficit.  This week's column, therefore, complements my analysis in last week's Verdict column, where I focused on whether there is any content at all to the "principles" that Republicans claim guide them in their crusade against modern government.  Last week's column was about the lack of content in Republicans' attempts at substantive arguments about deficits, while this week's column was mostly about the absurdity of the political talking points that Republicans have been endlessly repeating. My favorite such talking point -- and, because the Republicans have such tightly controlled "message discipline," you can find any number of members of Congress, think tanks, party organizations, and so on repeating these points -- is that "we can't borrow money that we don

Art Imitates Life, Life Imitates Art: Some Thoughts on DOMA

By Lisa McElroy The best episode of the best series ever on television, way back on March 24, 2004 (pretty much exactly nine years ago, when only Massachusetts allowed gay marriage), came to mind today as I was reviewing the coverage of the DOMA arguments.  OK, I’ll admit it, I find pretty much any excuse to watch The Supremes , a fifth-season episode of The West Wing in which President Bartlet must fill a suddenly vacant seat on the Supreme Court.  I make my Supreme Court seminar students watch it every year when we talk about appointments, and now that my children are in middle school, I’ll probably subject them to it, too. But this post is not about how much I wish that President Bartlet had really served our country as President, with Josh and Toby and CJ backing him up in advancing progressive causes.  It’s about how DOMA has been a much-talked about issue for many, many years, and how it is critical that the Supreme Court decide this issue now. Let’s start by setting the s

The Federalism Argument That Should Have Been Made in the DOMA Case

By Mike Dorf The potentially crucial moments in yesterday's oral argument in United States v. Windsor came during two painful exchanges.  Under questioning from CJ Roberts, SG Verrilli appeared to say that the Justice Dep't was not denying that the federal government has the affirmative power to define the term "marriage," as used in various federal statutes, in a way that differs from how the states define it.  I say "appeared" because, after making the concession to the Chief Justice, SG Verrilli then took it back in response to a question from Justice Kennedy.  Justice Kagan then tried to help him out and the SG grabbed at the lifeline.  The SG finally said that the fact that the federal government lacks the plenary power to regulate family affairs in the way that states do, means that the federal government cannot advance all of the same sorts of interests to defend DOMA that a state may advance to defend a state law banning same-sex marriage--and the

Pretend friends, housekeepers, and nannies

By Sherry F. Colb This week on Justia's Verdict, you can find Part 2 of my two-part series of columns examining the constitutionality of routinely sampling DNA from people who are under arrest.  In this post, I want to raise a related question -- the question of "pretend friends."  As I discussed in my 2002 Stanford Law Review article, What Is A Search? , the Supreme Court has long treated the sharing of one's privacy with a third party as tantamount to relinquishing that privacy, for various purposes.  I discussed some of the ramifications of that relinquishment in my  last week's post  here, Gathering versus Mining Evidence: DNA, heat waves, garbage, and urine . The Court's "pretend friend" cases include Hoffa v. United States  and United States v. White .  In these cases, the Court held that the government may send an agent to insinuate himself or herself into your life and listen to (and record and electronically transmit) your confidential

When Did Laws Banning SSM Become Unconstitutional? What Ted Olson Might Have Said with More Time

By Mike Dorf During today's oral argument  in the Prop 8 case, Justice Scalia asked Ted Olson when it became unconstitutional to exclude same-sex couples from marrying.  Olson initially replied with a couple of questions of his own: when did it become unconstitutional for government to exclude interracial couples from marriage? And when did racially segregated schools become unconstitutional?  Olson thus tried to show that the tacit premise of Justice Scalia's question--that the meaning of a provision of the Constitution is fixed when that provision is adopted--has been properly rejected by the Court's cases. But Justice Scalia replied that those practices were unconstitutional from 1868, the time when the Fourteenth Amendment was adopted, even though the Court's cases did not recognize it until 1967 (for interracial marriage) or 1954 (for segregation).  Justice Scalia thus dared Olson to say that same-sex marriage has been constitutionally obligatory since 1868 as

The Case That Dare Not Speak Its Naim

By Mike Dorf In Sunday's NY Times , Adam Liptak addressed the question of whether fear of another Roe v. Wade  could influence the Supreme Court in its decision of the same-sex marriage cases.  It's certainly possible that one or more Justices will indeed have that fear, but Liptak's article suggests--incorrectly in my view--that this is a realistic fear.   As I wrote last week , I think that both the direction and the intensity of public opinion on SSM makes "massive resistance" to a decision recognizing a right to SSM quite unlikely. The leading expert on backlash w/r/t SSM is Harvard Law Professor Mike Klarman.  In my post last week, I noted that in Klarman's 2012 book, he warns of the possibility of backlash but that it's possible that Klarman has softened (from an already-hedged position) in his calculation of the odds.  Liptak cites Klarman's book and quotes Klarman expressing the view that the intensity of opposition ot SSM is nothing like t

SCOTUS SSM Bracketology

By Mike Dorf If either team had an equal chance of winning each game in the NCAA basketball tournament, the odds  against filling out a perfect bracket would be one out of 2 to the 63rd power, or roughly speaking, a 9 followed by 18 zeroes. (I'm ignoring the play-in games.  If you count them, discount your odds by a further factor of 16).  What are the odds of filling out a perfect "bracket" for the Supreme Court's decisions in the same-sex marriage cases to be argued this week?  That depends on what we mean by a successful prediction, so let me make some simplifying assumptions. There are nine justices and two cases-- Perry (the Prop 8 case) and Windsor  (the DOMA case).  In each case, there are arguably infinitely many possible outcomes, but we can group these outcomes into four basic possibilities: (1) No ruling on the merits because executive non-defense means no case or controversy; (2) Plaintiffs win "big" in the sense that the Court finds that law

Is Pure Partisanship a Principle?

-- Posted by Neil H. Buchanan Due to a timing glitch, my Dorf on Law post yesterday did not go out in a separate email.  Those subscribers who read DoL from an email feed, therefore, might have missed it.  The post, "Principles?" (link here ), discussed my new Verdict column (link here ).  In today's post, I will pick up on the larger theme that I discussed in those two pieces, which is whether there is any "principle" or set of principles that consistently drives the current (I dare not call it "modern"), radicalized Republican Party. One way of looking at recent moves by national Republican leaders is, as I pointed out yesterday, that we are finally seeing what really matters to them.  They are toning down the culture wars stuff (although they are certainly going full-bore on anti-choice legislation at the state level), they have returned to their eternal intra-party struggle between isolationists and global militarists (a debate that was tempo


-- Posted by Neil H. Buchanan In my new Verdict column today , I discuss the claims by Republicans that they must stand up for their "principles," which has so far translated into their becoming even more insane about the federal budget.  By contrast, national Republican leaders have recently been toning down the culture-war craziness -- not abandoning it, by any means, but spending less time gay-bashing, and letting the wars over reproductive rights play out at the state level -- and many have even come out in favor of immigration reforms that they would have decried before the 2012 elections as "amnesty." Where are the principles?  I seem to remember hearing Republicans ask, "What part of 'illegal' don't you understand?"  There is a core principle, they argued, in upholding the rule of law.  Now, however, that principle has given way to the reality that the fast-growing Latino population is turned off by the Republicans, wit

"Oh, shut up."

By Craig Albert Chief Justice Roberts and Justice Alito didn't exactly tell Justice Scalia to sit down and shut up yesterday, but they might as well have.  Scalia's partial dissent in Decker v. Northwest Environmental Defense Center is a twelve-page diatribe repeating familiar Scalian ideas regarding textualism and deference.  The first paragraph of substance -- the one after the obligatory one that spells out which parts of the lead opinion he joins -- is three words long: "Enough is enough." Seven justices (including Thomas and excluding the recused Breyer) joined the Court's opinion; that lead opinion had nothing whatsoever to say about the dissenting polemic.  But Roberts and Alito were apparently annoyed enough with Scalia's exegesis that they went out of their way to say, in law-talk, "You may have a point, but this is neither the time nor the place."  Thomas's concurring silence speaks volumes to me.

Gathering versus Mining Evidence: DNA, heat waves, garbage, and urine

by Sherry F. Colb My column for this week , part one of a two-part series on Justia's Verdict, examines the case of Maryland v. King , in which the U.S. Supreme Court heard argument  on February 26th.  The case asks the question whether taking DNA from people who have been arrested, in the absence of any individualized suspicion to support DNA sampling, violates the Fourth Amendment right against unreasonable searches and seizures.  One of the questions that arose (but went unresolved) during oral argument was whether the Fourth Amendment might impose requirements on the government if it has collected discarded DNA (from a cup that the suspect had used to drink water, for example) and wishes to analyze the DNA for some or all of the information contained within it.  The attorney representing Alonzo Jay King suggested that such an analysis of DNA would count as a Fourth Amendment "search" and would accordingly require justification. In this post, I want to consider th