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The Supreme Court as of 2010
How do justices decide?
In an earlier diary, Who Can Put A SCOTUS Justice In A Box?, I questioned the reasoning of TPM's Salil Kapur, who sees Chief Justice Roberts as trying to put Justice Kennedy "in a box" in the DOMA case, U.S. v. Windsor. As I explained in that diary, putting SCOTUS justices in boxes is an impossible task. But the underpinnings of that analysis is an understanding that justices don't look at the law then decide cases on the merits. They look at the results they want to achieve and work backward from there.

In analyzing the Windsor case, who doubts the votes of Justices Scalia, Alito and Thomas (federalism "concerns" notwithstanding)? These votes are not based on legal principle. They are based on results—they have personal abhorrence for marriage equality. If anything, their professed concerns for federalism should drive their legal analysis—does DOMA's Section 3 impinge on states' rights?

`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'.
Arguably, DOMA intrudes on a traditional function of states. Certainly more so than Medicaid expansion does. Now, who thinks Scalia, Thomas and Alito will give this argument more than a minute's thought? If you do, I have a bridge to sell you.

But let's get to the two players on the Court who are subject of Kapur's ruminations, Roberts and Kennedy. Follow me to the other side to examine how results and political considerations will drive their judging process in Windsor.

Let's consider Kapur's arguments on the interplay between Roberts and Kennedy at oral argument in Windsor:

To recap, some conservative DOMA opponents — still unprepared to embrace the liberal view that the Constitution requires the federal government to treat gay and straight married couples equally — have suggested the law infringes on states’ rights. At times during the oral arguments, Kennedy appeared to join their ranks. Thus, though the liberal justices articulated a more straightforward argument, rooted in the 14th Amendment, that DOMA denies gay couples equal protection under the law, the federalist argument presented them a clearer path to a 5-4 majority to strike down the law.

Enter Chief Justice Roberts, who repeatedly sought to knock down the more circuitous 10th Amendment argument, and present Kennedy a choice: You’re either with us, or with the liberals.

Is that what Roberts did? Or instead is Roberts signalling to Republican conservatives that he still is one of them? I vote the latter. Why?

Because Roberts took a lot of guff about his ACA decision. Consider these statements from the Radical Right evangelical wing of the party:

“I certainly think his credentials were tarnished with the ObamaCare decision,” said Tony Perkins, president of the Family Research Council. “Does he care about his standing with conservatives? I don’t know.”

Gary Bauer, president of American Values and a former president of the Family Research Council, said Roberts shouldn’t be considered a conservative if he sides with the proponents of same-sex marriage after casting the deciding vote on healthcare.
If Roberts breaks with conservatives “on another major issue … then I think the whole understanding of the current makeup of the Supreme Court would be in question,” Bauer said.

He said the court would have to be seen as having a liberal majority, at least on hot-button political and social issues. Conservatives don’t necessarily think Roberts owes them a debt because of healthcare, but they’re still not convinced the ruling was a one-off event, Bauer said.

Roberts is, first and foremost, a Republican. While the Republican Party likely faces a day of reckoning on marriage equality (and any number of other issues), Roberts does not want to be the person who brings that day forward. His questioning, and I predict, his decision, will avoid being the cause of the great GOP rift on social issues.

Interestingly, I think Kennedy also wants to avoid being the bringer of the great conflagration, though perhaps on a broader scale than Roberts fears. Kennedy's record on gay rights issues is remarkably good for a conservative justice. See Lawrence and Romer.

But he also has convinced himself that he is a principled defender of states' rights and federalism. He is also a newly minted believer in limits to the Commerce Clause power. See ACA dissent (PDF).

Justice Kennedy's course, given the result he wants to achieve, is set forth by his stated views—strike down DOMA's Section 3 under the rubric of states' rights. Avoid the marriage equality question in its entirety.

This result strikes Kennedy's vanity on many levels: He will not vote to uphold, nor even defend rhetorically, discrimination against gays. He will protect his place in history. And he will also serve his stated federalism views by relying on states' rights as the basis for striking down DOMA's Section 3.

In normal circumstances, this result should appeal to Chief Justice Roberts as well. After all, he is a clever man and knows which way the wind is blowing on marriage equality. But he is under a cloud of suspicion in conservative circles at this time because of his ACA decision. He can't join this result. Because, as Gary Bauer stated, for conservatives, Roberts joining Kennedy would signal:

[I]f he sides with the proponents of same-sex marriage after casting the deciding vote on healthcare. If Roberts breaks with conservatives “on another major issue … then I think the whole understanding of the current makeup of the Supreme Court would be in question,” Bauer said.

He said the court would have to be seen as having a liberal majority, at least on hot-button political and social issues. Conservatives don’t necessarily think Roberts owes them a debt because of healthcare, but they’re still not convinced the ruling was a one-off event, Bauer said.

Does this reasoning sound "too political" for the Supreme Court? Well, welcome to the real world, the Legal Realist world that understands that the Court is a political institution, that justices act politically and that results dictate opinions as much as opinions dictate results.
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Comment Preferences

  •  Sounds spot-on to me. (16+ / 0-)

    Roberts I take to be truly a traditional Pocketbook Conservative, and not (like Scalia) instinctively one of the Underwear Republicans (who believe passionately that nothing is more important that what happens in other people's pants).  

    But, would Roberts ever be that willing to face the outcry from abandoning the Underwear contingent of his party?  I seriously doubt it.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Tue Apr 02, 2013 at 04:36:23 PM PDT

    •  Right on Kennedy, Maybe Not on Roberts (7+ / 0-)

      I have argued in the Supreme Court and had a number of cases there as Counsel of Record, and while Roberts was in private practice at the firm that was then Hogan & Hartson he did a moot court for one of my cases before his partner argued it at the Court the next day.  He has a very conservative and church-Catholic view of society that shades his principles and ideals as to how our republic should function and the roles of its institutions.  There is a tension among his paternalistic rules setting (e.g., federalism), his party-Republicanism (e.g., campaign finance), and his historical concern for the institution he leads (e.g., the ACA-saving vote).  My suspicion, actually only a guess, is that the latter trumps as to DOMA.  If you are right about Kennedy and the willingness of the four liberals to concur with his result, then Roberts will not want this historical decision to be made on a 5-4 vote and he will find a way to write his own concurrence and the result will overturn DOMA on a 6-3 vote.  Roberts' desire for the Court to regain some of its standing with the public, or his interest in avoiding the taint of further politicization, will trump his personal conservatism so the Court is not seen as so badly and politically split as a 5-4 decision would indicate.  History will sweep Roberts along, too.

      •  I agree. (2+ / 0-)
        Recommended by:
        lostboyjim, Ian S

        I think a problem with the OP's analysis is that once you're the Chief Justice, you're not going anywhere else before retirement. Partisanship won't vanish, but the Chief Justice doesn't have to worry about party support to keep his job, and is far more likely to be worried about his place in history.

        Workers of the world, unite! You have nothing to lose but your shackles. It is by the picket line and direct action that true freedom will be won, not by electing people who promise to screw us less than the other guy.

        by rhonan on Wed Apr 03, 2013 at 12:18:03 AM PDT

        [ Parent ]

        •  Indeed (0+ / 0-)

          As far as CJ Roberts goes: career wise he has reached the summit/pinnacle of a judicial career. He has got life tenure and is pretty much the head of the judiciary. So why would he care what others think of him? It's not as if his career depends on it.

          Obama-Biden in 2012: four more years!

          by Frederik on Wed Apr 03, 2013 at 02:04:14 AM PDT

          [ Parent ]

      •  Split decision? (1+ / 0-)
        Recommended by:
        lgmcp

        Perhaps a split decision may be coming? DOMA struck down on federalism issues whereas prop 8 survives under the same theory: it’s up to the states to define what marriage constitutes and California was within her right to do so with regards to Prop 8. That way both Kennedy and Roberts might save face and still hold the conservative mantle.

        Obama-Biden in 2012: four more years!

        by Frederik on Wed Apr 03, 2013 at 01:59:08 AM PDT

        [ Parent ]

    •  Why would Roberts or any Justice care... (1+ / 0-)
      Recommended by:
      lostboyjim

      about what other people in his party think?  It's not like they're up for re-appointment.  Roberts cares about the Court's legacy and popular credibility, I suspect, based on his vote to uphold Obamacare.  But that's not the same as caring about what the Gary Bauer's of the GOP think.

      "Happiness is the only good. The place to be happy is here. The time to be happy is now. The way to be happy is to make others so." - Robert Ingersoll

      by dackmont on Tue Apr 02, 2013 at 10:11:29 PM PDT

      [ Parent ]

  •  Great analysis. nt (5+ / 0-)

    "For we, the people, understand that our country cannot succeed when a shrinking few do very well and a growing many barely make it." - President Barack Obama, Second Inaugural Address, January 21, 2013.

    by surfermom on Tue Apr 02, 2013 at 04:38:09 PM PDT

  •  But why would Roberts care what the Republican (10+ / 0-)

    base thinks? He does not need to be elected. I know it is a political institution, but Roberts would not be the first justice whose performance on the bench deviated from expectations.

    We must not confuse dissent with disloyalty - Edward R. Murrow

    by Susan Grigsby on Tue Apr 02, 2013 at 04:38:29 PM PDT

    •  As I wrote (7+ / 0-)

      "Roberts is, first and foremost, a Republican. While the Republican Party likely faces a day of reckoning on marriage equality (and any number of other issues), Roberts does not want to be the person who brings that day forward. His questioning, and I predict, his decision, will avoid being the cause of the great GOP rift on social issues."

      •  Certainly, his opinion will test this (2+ / 0-)
        Recommended by:
        lgmcp, Armando

        We'll see if his opinion is ultimately consistant with your hypothesis.  But if I was taking bets (from your sports posts on TalkLeft, I'd guess you do) I'd agree it's the right way to bet.

        Quote of the week: "They call themselves bipartisan because they're able to buy members of both parties," (R. Eskow, Campaign for America's Future.)

        by mbayrob on Tue Apr 02, 2013 at 04:49:49 PM PDT

        [ Parent ]

        •  He only appears to be a NE fiscal conservative (2+ / 0-)
          Recommended by:
          Armando, Kayakbiker

          With a soft spot for our corporate citizens...

          But he suckles Roman Catholic orthodoxy like some romans suckled other things.

          I agree he doesn't overturn it.

          He could justify obamacare to his church on biblical grounds least...

          Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

          by No Exit on Tue Apr 02, 2013 at 05:25:43 PM PDT

          [ Parent ]

      •  Do you think his ACA ruling was similar? (2+ / 0-)
        Recommended by:
        Armando, 207wickedgood

        Things had already changed drastically for sick and disabled (pre-existing condition) children.  If he had tossed ACA his party would have faced a reckoning, a sea of faces of sick children who were given a glimmer of hope and now had it snatched away would have hit the media and would still be hitting media.

        •  I think it was similar (4+ / 0-)

          in that Roberts feared a conflagration against the conservative Court.

          He still has work to do gutting civil rights.

          •  But if Roberts fears a conflagration... (0+ / 0-)

            ... and if he really does have a historical perspective on the Court, then he has to know that a SCOTUS decision upholding Prop 8 and reversing the district and circuit courts would be the Dred Scott of the 21st Century.  It would permanently stain the legacy of every justice in the majority in that case. Roberts can't vote that way. He either has to vote to dismiss the haters' appeal on procedural grounds (standing), or find some other way (DIG) to make the Prop 8 case just go away.

            On DOMA, I don't see Roberts being eager to leave it intact. As much as Roberts might like to appease his rabid "friends" on the right, based on his background he surely believes that the federal government has no authority to define marriage. A Roberts vote to uphold Section 3 of DOMA would expose him as wholly unprincipled.

            Please help to fight hunger with a donation to Feeding America.

            by MJB on Tue Apr 02, 2013 at 09:35:05 PM PDT

            [ Parent ]

            •  Split? (0+ / 0-)

              Perhaps a split decision may be coming. DOMA struck down on federalism issues whereas prop 8 survives under the same theory: it’s up to the states to define what marriage constitutes and California was within her right to do so with regards to Prop 8. That way both Kennedy and Roberts might save face and still hold the conservative mantle. And with Roberts or Kennedy in the majority, they being the most senior justices of a possible majority, it would probably either one of them be who holds the pen and thus forges the content of the decision.

              Obama-Biden in 2012: four more years!

              by Frederik on Wed Apr 03, 2013 at 02:01:50 AM PDT

              [ Parent ]

      •  I think he is first and foremost a corporatist (3+ / 0-)
        Recommended by:
        eparrot, Misterpuff, Glenn45

        and thus his vote on keeping the ACA in place , which is beneficial to the insurance companies

        •  My experience with ACA and insurance (1+ / 0-)
          Recommended by:
          wilderness voice

          Companies is that they want nothing to do with it.  Tricare South fought us on covering our 22 year old daughter again even after it became law.  They claimed the law was unclear and they were unable to meet the deadline to cover those older children.  They are very upset that my sons doctor now decides what he needs and doesn't have to fight with nurses they employ over the phone over the need of each procedure.  They especially hate their profit margins being defined by the legislation and they especially hate having to cover a pre-existing condition.

          I read over and over again that ACA was a give away to the insurance companies and Obama is a blankety blank blank for doing it, and that just isn't accurate.  Is it good legislation?  Time will tell.  It is going to be all about what we fight for and build on.

          Some people have said life would be great if only we had Hillarycare.  They forget that some of us did get Hillarycare, the military got Hillarycare.  And it has been gutted and morphed so many times it scarcely resembles its original version.

      •  that's just assuming the answer (0+ / 0-)

        Did anyone doubt that Sandra Day O'connor was a liberal justice just because she was appointed by a Republican?  Maybe Roberts has decided he isn't first and foremost a Republican.  You may still be right, but I think the situation is much murkier than your are implying.  Maybe Roberts felt spurned by the Republican party in the wake of the ACA backlash and no longer feels like he owes them anything.  His decisions will still tend to lean conservative, but the Republican orthodoxy of various issues isn't always the conservative view if you know what I mean.

        If Roberts sides with marriage equality in these cases, then I think that will signal a sea change.  Roberts will need to be seen as a legitimate swing vote in a lot of cases.

    •  Tribalism? (3+ / 0-)
      Recommended by:
      Armando, Susan from 29, MJB

      We all have it, to some degree.

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Tue Apr 02, 2013 at 04:40:27 PM PDT

      [ Parent ]

    •  Multiple reasons. (3+ / 0-)
      Recommended by:
      Armando, Naniboujou, 207wickedgood

      Roberts does not live in a vacuum.  He certainly has a life outside the court.  He could risk being shut out of any number of conservative groups.  He could be shunned by his church.  And, if nothing else, he could risk losing lots of invitations to speak to conservative groups, which pay rather nice spekers' fees.  (Ask Scalia about those.)

      -5.13,-5.64; If you gave [Jerry Falwell] an enema, you could bury him in a matchbox. -- Christopher Hitchens

      by gizmo59 on Tue Apr 02, 2013 at 04:59:45 PM PDT

      [ Parent ]

    •  He's a scumbag (0+ / 0-)

      without any convictions, much less the courage thereof.

      IOW, a typical Rethug.

      Irony takes a worse beating from Republicans than Wile E. Coyote does from Acme. --Tara the Antisocial Social Worker

      by Youffraita on Tue Apr 02, 2013 at 05:03:30 PM PDT

      [ Parent ]

  •  Legal Realism (5+ / 0-)
    But the underpinnings of that analysis is an understanding that justices don't look at the law then decide cases on the merits. They look at the results they want to achieve and work backward from there.
    Somewhere, Karl Llewellyn is smiling ...
  •  Bush v Gore (6+ / 0-)

    Was that about States' rights?  Or do states rights come into play only when the political outcome matches the justices partisan outcomes?

    Be ashamed to die until you have won some victory for humanity. Horace Mann (and btw, the bike in kayakbiker is a bicycle)

    by Kayakbiker on Tue Apr 02, 2013 at 04:41:54 PM PDT

  •  And why does Roberts need to signal? (3+ / 0-)
    Recommended by:
    Armando, Dave in Northridge, hmi

    He's a Justice in a lifetime gig.  Why does he care what Conservatives think?  Are they going to say something mean?

  •  Hold on, let me grab my faintin' couch... (13+ / 0-)
    ...justices don't look at the law then decide cases on the merits. They look at the results they want to achieve and work backward from there.
  •  Only the conservative 5 decide based on (1+ / 0-)
    Recommended by:
    Glenn45

    what they want to happen rather than the law.  The other four are real judges who uphold their interpretation of the Constitution, not just make shit up to rationalize doing whatever is politically convenient for their agenda.

    Going faster miles an hour, with the radio on.

    by Troubadour on Tue Apr 02, 2013 at 04:51:44 PM PDT

    •  What? Ideological blinders NEVER affect (7+ / 0-)

      those on the left side of the spectrum?  

      Reality indeed has a liberal bias, but that scarcely exonerates all liberals from all biases.  

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Tue Apr 02, 2013 at 04:55:51 PM PDT

      [ Parent ]

      •  I'm stating my observation of the Court. (5+ / 0-)

        The liberals on the Court, to the extent I've seen them, appear to make decisions largely based on their interpretation of the law, not political convenience for their agenda.  The conservatives do the opposite, changing their standards whenever convenient for Republican/conservative politics.

        Going faster miles an hour, with the radio on.

        by Troubadour on Tue Apr 02, 2013 at 05:02:53 PM PDT

        [ Parent ]

        •  True (2+ / 0-)
          Recommended by:
          pico, Beastly Fool

          But that is because of the precedents set between 1937 and 1973.

          •  What precedents? (0+ / 0-)

            Going faster miles an hour, with the radio on.

            by Troubadour on Tue Apr 02, 2013 at 05:08:11 PM PDT

            [ Parent ]

            •  You want me to list them all? (2+ / 0-)
              Recommended by:
              No Exit, Beastly Fool

              There are literally, hundreds of them.

              •  Precedents where liberals on the court (2+ / 0-)
                Recommended by:
                Beastly Fool, Glenn45

                ignored the Constitution in order to advance the liberal agenda?  I'm not aware of any precedents to that effect.

                Going faster miles an hour, with the radio on.

                by Troubadour on Tue Apr 02, 2013 at 05:16:53 PM PDT

                [ Parent ]

                •  Ignored the Constitution? (2+ / 0-)
                  Recommended by:
                  Beastly Fool, lostboyjim

                  I'm not sure any one does that.

                  I've written a lot on Constitutional Interpretation and it hard to give a full response in just a comment.

                •  Precedents where they made quite significant (2+ / 0-)
                  Recommended by:
                  Odysseus, lgmcp

                  revisions to our understanding of the Constitution (the modern interpretation of the Interstate Commerce Clause frankly stretches credulity, but it was what we needed to have a workable national government that responds to modern concerns).

                •  Perhaps you haven't heard (2+ / 0-)
                  Recommended by:
                  wilderness voice, lostboyjim

                  about the emanations from the penumbra. Or was that the penumbra of the emanations? No matter—it led to the desired result. Nothing but pure non-ideological Constitutionalism for J. Douglas, yessir.

                  •  Bc of the abomination of the Slaughterhouse (0+ / 0-)

                    cases.  All Douglas did was recognize that the Court thereafter slowly reached the same result intended by the framers of the 14th A without just biting the bullet and overruling the bs rulings from the 'revenge of the Confederacy' Justices thru the 'let's let industry X buy the next Justice' (the railroads, then coal/steel, the JP Morgan/oil, etc.) Courts.

                    Do you deny that the notion of respect for the personal autonomy of the individual over his own body and mind was at the core of the 13th-15th?

                    •  Are you offering an argument (0+ / 0-)

                      for originalism? Or do we, as is general in law, attempt to stick to the actual language of the law? So, no, I don't think that vague notions of personal autonomy should decide court cases.

                      •  Do you plan on answering MY question or just ducki (0+ / 0-)

                        ng and throwing buzzwords around without any understanding of the history of the constitutinal law at issue here?  Bc it sure seems to be the latter.

                        •  Please reread (0+ / 0-)

                          1) I thought I answered your question. Let me be plainer:
                          No, I do not think that the vague "notion of respect for the personal autonomy of the individual over his own body and mind was at the core of the 13th-15th"—as opposed to notions of political liberty precluding slavery and then of the full extension of civil rights to all citizens.

                          Thanks otherwise for your condescension, but I actually teach philosophy of law, some aspects of constitutional law, and have taught history and written professionally on constitutional issues for textbooks. So, yeah, I think I have some understanding of the history of what is at issue.

                          •  Perhaps you should re-read the abolisionists? (0+ / 0-)

                            Granted, there's alot of 18th C religionist nonsense grafted onto those Englightment views (second great Awakening and all that, you know?), but it remains - as does the enitre Bill of Rights - essentially an Enlightenment view of personhood.  You know, the whole Quaker, Paine, Jeffersonian (ya, I know, ironic) notion of free-willed moral actors of inherent equal value.

                            As for your qualifications- they neither appear nor are reflected in the content of your comment.  Rather, all that is there is a rightwing buzzword ('originalism') with no actual content (or did you mean 'original intent', an entirely different animal?) and a means of statutory construction of little real value in Constitutional construction except again in rightwing world (what do the Founders say about GPS? rockets? drones? cloning? abortion?  Zip. Nada. Zilch.)  Likewise, your offhand and pejorative dismissal of Douglas, one the great liberal Justices of the 20th C (and imo wholy unwarranted and wongheaded dismissed: sure, 'pernumbra' sounds silly but the central concept - that the Bill of Rights and 13-15th Amends shared and expressed core concepts of what the American system finds uniquely valuable in individual humans is amply supportable by the various Framers writings, congressional record for the BofR/13-15, views in popular media/opinions, etc.  And sure, you can find contra evidence.  Makes the wordl go round, you got your opinion, I got mine and both stink like aresholes, 'Goodnight, johnboy!')

                            But, no, I didn't - and still don't - find your prior comment 'answered' anything.  Brief and flippant, specious, repeating rightwing buzzwords, yes.  But, 'answer'?  Not so much.

                            As for your second comments 'answer' of it: I beleive you short-change the document, its framers and adopters, the voters of the times, and all of us today if you truly see the 13th-15th as only based on "notions of political libertyprecluding slavery" without asking about the rest of the story, i.e., what they - and we - think are the source, and inherent force and scope of those civil rights thus "fully extended".  IMO, that is an essential different bt a statue and constitution - and especially the portions of same defining the limits of politcs and political and statory power.

                            BTW, I'm not exactly a neophyte on this subject either.  

              •  I miss justices like Douglas, Brennan... (6+ / 0-)

                Marshall and warren....

                Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

                by No Exit on Tue Apr 02, 2013 at 05:28:58 PM PDT

                [ Parent ]

  •  It's dangerous to attempt to determine in advance (8+ / 0-)

    how this court will rule on pretty much anything and even if we can determine HOW they'll rule, it's simply speculation to try and figure out the WHY of it. Whatever we may think of certain individuals who currently serve on the Supreme Court they really are not stupid. Intellectually lazy or dishonest perhaps but not stupid.

    One has to wonder whether the issue on marriage equality will really come down to a "conservative versus liberal" divide or, if it does come down to that, what that actually involves. It very well could be that the political meanings of those terms is in the process of revision.

    It should certainly seem like a slam dunk that DOMA will be struck down one way or the other; there's no conceivable Constitutional justification for it...at least none that could be repeated with a (pardon the expression here) straight face. In fact the whole thing stinks to high heaven. The devil will of course be in the details. And those of us who presume as I do that DOMA is doomed could be proven wrong. We assumed ACA would be overturned and we were mistaken. So until the decision is issued, all we can do is go back to guessing and reading tea leaves.

    •  indeed (1+ / 0-)
      Recommended by:
      sfbob

      entertainment is the best one can say of the exercise

    •  'Radical' is not liberal, so there is no revision. (0+ / 0-)

      Today's cons are not conservative.  The strongest single common thread bt the various con groups is a desire to overthrow the social/political/legal order that evolved over the last 75-100 years (and one could argue on some things, like civil rights, the last 160 years) and replace it with their own utopian corptocracy/theocracy/nihiltocracy/new Fuedalism.

      For historical illustration, Nazism was not conservative, Bolshevism was not liberal.  But both were radically utopian.  

      And it is no coincidence today's cons/Thugs bear more semblance to those two than to the Founding Fathers.

  •  Good analysis, but (2+ / 0-)
    Recommended by:
    Youffraita, dharmafarmer

    The people he's listening to are Tony Perkins of a group SPLC isn't sure is a hate group or not (and who can't seem to make sense about marriage issues on TV any more) and Gary Bauer, who's even less relevant? Fringier and fringier. If you had picked two other commentators, it might have worked better, and if you couldn't find any, then maybe this game really is over.

    -7.75, -8.10; . . . Seneca Falls, Selma and Stonewall (h/t cooper888)

    by Dave in Northridge on Tue Apr 02, 2013 at 04:53:34 PM PDT

  •  how do you solve a problem like scalia? (6+ / 0-)

    how do you hold a moonbeam in your hand?

    Before you diagnose yourself with depression or low self-esteem, first make sure that you are not, in fact, just surrounding yourself with a-holes - William Gibson. (-9.75 / -9.05)

    by doesnotworkorplaywellwithothers on Tue Apr 02, 2013 at 04:55:58 PM PDT

  •  I think Roberts's top 2 concerns are: (10+ / 0-)

    1.  What's good for business; and
    2.  His place in history.

    Not necessarily in that order.  

    •  But whose history? The dfh's or the clergy's? (0+ / 0-)

      Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

      by No Exit on Tue Apr 02, 2013 at 05:35:05 PM PDT

      [ Parent ]

    •  In the wake of the ACA decision, (8+ / 0-)

      it was discussed that Roberts was sensitive to his legacy, to how his tenure would be perceived by history.
      It's clear by the scheduling of the Prop 8 and the Windsor cases back to back as they were, that we're looking at a court very self aware of it's role in this cultural shift, whether the individual players choose to call it that or not.

      And Roberts is right at the discussion's center.
      His closing question in Windsor about the political influence of the gay community and the answer he got regarding the changing culture was very telling. He sees through a political lens. Yet he's very much 'on-camera' when sitting on a case.  That statement, that exchange about our changing culture, resonates. It was a fitting cap to a fascinating two days of argument.

      That Roberts' seeming assumption of the politicians' "falling over themselves" to announce their support of marriage equality - that he assumed this was due to the power of the gay lobby, rather than the maturing of our culture, and that (hopefully) he heard the difference - well, I like to believe it's moments exactly like this that get squared up with Roberts' personal reflections on his historical legacy, and to a lesser extent this is so for Justice Kennedy, though his reflections seem to have more to do with the legacies of justice itself.

      Big business has already weighed in, with briefs in support of equality, so that's working in favor of striking down Prop 8, but likely not too dramatically. As for Windsor, they will not in the end deny an 84 year old woman more than $300,000 that the IRS took from her rightful inheritance. Likewise, they won't continue to deny visitation and survivor's benefits to spouses and children of service men and women. Way too much unequal treatment, even if they might not call it that.

      They watch the news, not just FOX. They know where the culture's headed. If they listened honestly, and if they respond fairly to all that's been presented in the briefs, Roberts and Kennedy, they'll see their way through the labyrinth at least part of the way to the other side.
      And those will be important steps forward for marriage equality, for our culture and for our country...

      "Gun violence places a tremendous burden on America's health care system. Direct medical costs for gunshot wounds total more than six million dollars a day." - The Violence Policy Center

      by Beastly Fool on Tue Apr 02, 2013 at 05:35:18 PM PDT

      [ Parent ]

    •  If you're correct, then that would suggest (0+ / 0-)

      that he's likely to favor ME in the end.

  •  with the present crowd (7+ / 0-)

    on that particular bench, I always figured most of 'em did it the way your worst professor allegedly did -- throw the papers down a flight of stairs, and whatever gets to the bottom passes.

    There is no question that there is an unseen world. The problem is, how far is it from Midtown and how late is it open? -- Woody Allen

    by Mnemosyne on Tue Apr 02, 2013 at 05:02:26 PM PDT

  •  But Perhaps.... (5+ / 0-)

    I don't think there's much doubt that the bashing Roberts took after healthcare was intended to work the refs for future decisions.  Still, these cases present an interesting question for Roberts in another respect.

    Assume that we have Kennedy's vote.  The reasoning behind it may change, but the result is what it is.  Roberts could side with the conservatives in a 5-4 losing battle, or he could vote with Kennedy and decide who writes the opinion.  Last I heard it was still the CJ's prerogative to pick the author so long as he was part of the majority.

    Roberts may see that this issue is on the losing side of history.  10 years from now a vote to uphold DOMA will just be a vote that was out of touch with the world.  On the other hand, if he votes with the majority then he can write the opinion himself on the most narrow grounds possible, leaving lots of Easter Eggs to benefit the conservative cause in future cases.  Of course there would be much broader concurrences from the more liberal wing of the Court, but that's still not an opportunity to be dismissed out of hand.

    •  I think (4+ / 0-)
      Recommended by:
      Militarytracy, catwho, Tod, bythesea

      Roberts sees Kennedy as writing narrowly already and thus has the freedom to pander to conservatives.

    •  I don't know that he can blunt the force of the (0+ / 0-)

      Opinion.  If Kennedy joins i think it will be on state's rights grounds.  That leaves a block of four justices agreeing on a hopefully broad based ruling on equal rights.  I don't believe Roberts will go through so much grief to rule with Kennedy on states rights grounds.  He loses with both sides of this debate if he goes the obamacare route.  Besides he probably does agree with the bigots.  Such a fine catholic.

      Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

      by No Exit on Tue Apr 02, 2013 at 05:40:39 PM PDT

      [ Parent ]

      •  5-4 vs 6-3 (1+ / 0-)
        Recommended by:
        Frederik

        Obamacare was different because without Robert's vote the individual mandate gets defeated, and perhaps the whole thing.  That decision was a real surprise.

        Turning a 5-4 vote into a 6-3 vote doesn't change the result, and gives the CJ a lot of influence.  People used to talk about Warren Berger doing this rather a lot.

        •  I know warren would do it, but one of the four (1+ / 0-)
          Recommended by:
          Tod

          Equal protection grounds justices is going to write a brief that all four sign on to it.  Kennedy can get away with voting on states rights. I don't think Roberts can or wants to.  I still think we will see four votes for ep and anyone not signed on is on the wrong side of history.  It doesn't matter who Roberts picks.

          Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

          by No Exit on Tue Apr 02, 2013 at 06:11:03 PM PDT

          [ Parent ]

  •  I'd like to believe the SCOTUS Republicans are (1+ / 0-)
    Recommended by:
    Armando

    capable of justice and humanity but they aren't. I
    wouldn't be surprised if those stooges were being blackmailed by their 'sponsors'.

    This is a court of law, young man, not a court of justice.--Justice Holmes

  •  I think that on personal freedom issues (2+ / 0-)
    Recommended by:
    Armando, Odysseus

    they aren't really that ideological.  Economic issues, just the opposite.

    "To recognize error, to cut losses, to alter course, is the most repugnant option in government." Historian Barbara Tuchman

    by Publius2008 on Tue Apr 02, 2013 at 05:31:19 PM PDT

  •  States' Rights is the Long Term Play for Roberts (3+ / 0-)
    Recommended by:
    catwho, Odysseus, Frederik

    I'm not much of a Court prognositicator, but it wouldn't surprise me to see Roberts vote to strike down DOMA on states' rights grounds.  He can see which way public opinion (at least overall public opinion, if not state by state) is going and, like in the ACA decision, he may not want to be on the wrong side of history or to cause the Court to be viewed by most of the public as simply another political show.

    So, Roberts either joins Kennedy to form a 6-3 decision striking down DOMA on states' rights grounds or, if Kennedy decides to uphold DOMA, is the swing vote in a 5-4 decision striking down DOMA.  Of course, he'll again be vilified by the Right.

    But here's the upside for him and the Right:  striking down a federal law on 10th Amendment grounds is pretty rare.  And, more importantly, it would signal the Court's intent to let the States have more say in civil rights areas, particularly those civil rights implicating privacy.  

    The DOMA decision would then form the rationale for overturning Roe v. Wade, on the grounds that laws about abortion should be left to the States.  By voting against DOMA and assigning himself to write the decision, Roberts can lay out the rationale for that decision and others in the future, which would greatly weaken the concept of federally-protected basic Constitutional rights.

    Welcome to the future of Federalism.  Federally protected voting rights?  Nah, the Civil War and Jim Crow are over, and the States have traditionally had the right to regulate voting.  Federally protected abortion rights?  Not anymore; it's now up to the States.  Federally protected right to marry?  No such thing, but the States have always taken care of it.

    •  Roberts may well in the end strike down DOMA (2+ / 0-)
      Recommended by:
      eparrot, Odysseus

      on states' rights grounds, but for me the idea that he nurtures some long term agenda around protecting states rights, with this domino having to fall setting up a later possibility, and then a later one and so on - this particular tedium doesn't work for me any more.

      I believe, since ACA, that Roberts is more legacy driven, that while he favors corporate interests, he's coming to terms with the unfettered reality that he is completely free to decide anything.

      In ACA, he abandoned Scalia and his conservative peers at the very last to uphold the law, seemingly because he believed it was the will of the congress and the will of the people, to reduce it to its simplest form.

      Yes, there were the medicaid exceptions under the commerce clause, he finagled that, but he upheld a law that conservatives held in contempt - the lone conservative acting in true conservative manner.

      SOMETHING in the justice's mind wakes up a little now and then, and when it does, we need to heartily fan the flames.

      So, I'm an optimist when it comes to the evolution of the chief justice...

      "Gun violence places a tremendous burden on America's health care system. Direct medical costs for gunshot wounds total more than six million dollars a day." - The Violence Policy Center

      by Beastly Fool on Tue Apr 02, 2013 at 06:06:38 PM PDT

      [ Parent ]

    •  6-3 (0+ / 0-)

      I can see CJ Roberts joining J. Kennedy on the premise of states rights grounds. But if J. Kennedy decides to vote with J. Scalia & co, I don't see CJ Roberts alone jumping the fences to join the liberal bloc. It'll be either a 6-3 majority for the good guys, or a 5-4 majority for the bad guys.

      But it could very well be a split decision. DOMA struck down on federalism issues (6-3) whereas prop 8 survives under the same theory (5-4): it’s up to the states to define what marriage constitutes and California was within her right to do so with regards to Prop 8. That way both Kennedy and Roberts might save face and still hold the conservative mantle.

      Obama-Biden in 2012: four more years!

      by Frederik on Wed Apr 03, 2013 at 02:30:14 AM PDT

      [ Parent ]

  •  SCROTUS (1+ / 0-)
    Recommended by:
    scamperdo

    Not SCOTUS. Bush v. Gore pretty much cost them any credibility with me in any way shape or form.

    •  Don't stop there (0+ / 0-)

      Chief Justice Taney didn't do much for the Court's credibility either.

      Doesn't mean they are incapable of regaining your approval.




      Somebody has to do something, and it's just incredibly pathetic that it has to be us.
      ~ Jerry Garcia

      by DeadHead on Tue Apr 02, 2013 at 06:35:19 PM PDT

      [ Parent ]

    •  very well said (0+ / 0-)

      I was just reviewing that decision the other day for reasons I don't have to go into here and the fraud committed by the 'reasoning' of those five scumbags still kills me. I never got over it.

  •  FWIW, the states rights result here (2+ / 0-)
    Recommended by:
    Matthew D Jones, Odysseus

    could be horrible for the future of marriage equality--especially if the Court avoids affirming the 9th Circuit on the merits. Imagine Congress being powerless to force the red states to recognize all marriages. It's not hard to imagine, because it's the sort of result that prevailed in a legally similar context between the Compromise of 1877 and the Truman Administration.

    Taking Justice Ginsburg's full concurrence in the healthcare cases seriously--and I do--makes me deeply depressed about our current Court. Roberts saved the ACA, but his pound of flesh on the Commerce Clause (remember, he decided that issue when he did not have to) will potentially prove to be a serious problem.

    Ok, so I read the polls.

    by andgarden on Tue Apr 02, 2013 at 06:12:48 PM PDT

    •  Full Faith and Credit Clause (0+ / 0-)

      Isn't there a clause in article 4 of the Constitution that forces states to recognize decisions by other states?  That would de facto hollow a pro Prop 8 decision because it would still force the state that denies gay marriage to recognize such marriages which were legally performed in a state that acknowledges gay marriage. People would just hop across state lines to get that right.

      Obama-Biden in 2012: four more years!

      by Frederik on Wed Apr 03, 2013 at 02:36:53 AM PDT

      [ Parent ]

  •  Btw... (5+ / 0-)

    I'm delighted that Justices Roberts and Kennedy are grappling with the impact their rulings on gay marriage will have on their legacies.

    That's progress. History does not look kindly on bigots.

    I wish they'd view issues of race through the same prism. Roberts' silly gotcha question to the SG over the VRA  wondering whether the people of the South were more racist than the rest of the country was a cheap rhetorical trick.

    He and Scalia reduced complicated legal issues to lizard-brain tribalism.
    History will judge that too.

  •  Seems to me Kennedy understands the trap in DOMA (0+ / 0-)

    for Prop 8.  If DOMA is unconstitutional due to Am.14, then Prop 8 and the like must be unconstitutional in all 50 states as Kennedy stated, at least if the Court wishes to remain logicvally consistent.  But, as you say, that is not a result he wants.  He wants it unconstitutional only in CA, therefore, to ramain consistent, DOMA must be over ruled on some other, any other, grounds.  Enter Federalism.

    GOP Wars against: Iran, Iraq, Afghanistan, Immigrants, Mexicans, Blacks, Gays, Women, Unions, Workers, Unemployed, Voters, Elderly, Kids, Poor, Sick, Disabled, Dying, Lovers, Kindness, Rationalism, Science, Sanity, Reality.

    by SGWM on Tue Apr 02, 2013 at 09:18:44 PM PDT

    •  Full Faith and Credit Clause (0+ / 0-)

      Yes but when federalism is used to struck down DOMA but to uphold Prop 8, then enters the "Full Faith and Credit Clause" of article 4 of the Constitution:

      Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
      Although the full faith and credit clause was never used to force a state to recognize a marriage it did not wish to recognize., it could very well be used to do exactly that.

      Obama-Biden in 2012: four more years!

      by Frederik on Wed Apr 03, 2013 at 02:40:24 AM PDT

      [ Parent ]

      •  only section III of DOMA. (0+ / 0-)

        All of DOMA won't go down, only Section III.  Section II was the abjuration of full faith and credit.  States can still ignore married couples from other states.

        Minority rights should never be subject to majority vote.

        by lostboyjim on Wed Apr 03, 2013 at 09:34:03 AM PDT

        [ Parent ]

        •  Unconstitutional (0+ / 0-)

          So if section 2 is ever challenged in an other case, it'll be ruled unconstitutional as well. After all, no federal law can negate a section of the constitution, and section 2 directly contravenes article 4.

          Obama-Biden in 2012: four more years!

          by Frederik on Wed Apr 03, 2013 at 01:54:04 PM PDT

          [ Parent ]

          •  I agree. So far SCOTUS does NOT. (0+ / 0-)

            From Wikipedia on DOMA

            In August 2007, the Tenth Circuit Court of Appeals in the case of Finstuen v. Crutcher ordered Oklahoma to issue a revised birth certificate showing both adoptive parents to a child born in Oklahoma who had been adopted by a same-sex couple married elsewhere.[161] By contrast, in 2011 Louisiana in Adar v. Smith successfully defended in federal court its refusal to amend the birth certificate of a child born in Louisiana and adopted in New York by a same-sex married couple who sought to have a new certificate issued with their names as parents as is standard practice for Louisiana-born children adopted by opposite-sex married couples.[162] The Supreme Court refused to hear the case on appeal.[163]

            On October 2, 2009, a Texas judge granted a divorce to two men married in Massachusetts. On August 31, 2010, the Fifth Court of Appeals in Dallas reversed the lower court's ruling.[164][165] On January 7, 2011, the Third Court of Appeals in Austin allowed a divorce granted by a lower court to a lesbian couple married in Massachusetts to stand.[166] Both cases await action by the Texas Supreme Court.[167]

            Minority rights should never be subject to majority vote.

            by lostboyjim on Wed Apr 03, 2013 at 03:57:20 PM PDT

            [ Parent ]

  •  Freedom of religion? (0+ / 0-)

    I could see Roberts writing that no house of worship could be denied following their own beliefs regarding who they are willing to marry - and some are stating publicly in favor of same sex marriage.  There is no reason for the government to involve itself other than equality of taxation.  This is all very fitting with life, liberty, the pursuit of happiness....I'd add a reminder to all our happy singles and couples to file tax returns before the looming deadline to avoid penalty.

    •  No (0+ / 0-)

      I doubt it as both DOMA and Prop 8 aren't argued on freedom of religion grounds, but are either federalism or 14th Amendment issues.

      Nobody on each nside of the argument denies that a church can make its own rules as to whom they want to marry.The state just decided to couple legal consequences to marriage. But that's als why civil marriages also exists: in order to give non religious people or people who can't remarry religiously (for example a divorced person), the posibility to enjoy the legal ramifications of marriage.

      Obama-Biden in 2012: four more years!

      by Frederik on Wed Apr 03, 2013 at 02:44:28 AM PDT

      [ Parent ]

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