Today, the Second Circuit Court of Appeals struck down a major part of the Defense of Marriage Act (DOMA). Since DOMA had already been held unconstitutional by the First Circuit, on one level this doesn't change anything, since the case was almost certainly headed to the Supreme Court anyway. But today's opinion is important because the theory underlying the court's holding goes much further than the First Circuit did.
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court's conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court's interpretation of the Constitution's commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can't toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. "You have built a fantasy mansion on the Commerce Clause," the lawyer tells Smith.
U.S. District Court Judge Jeffrey White's recent opinion holding a key provision of the Defense of Marriage Act unconstitutional presents an interesting contrast to Judge Stephen Reinhardt's recent opinion on California's Proposition 8. Reinhardt, trying to maximize the chances that his opinion would not be overruled and therefore create a bad Supreme Court precedent, wrote a cautious and narrow opinion closely tailored to the unique facts of the case at hand. Judge White, conversely, wrote a broad (though clearly argued) opinion that would have much wider implications. Whether White's opinion can survive further appellate review remains to be seen.
Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona—the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question.
Many progressive legal commentators, including Dahlia Lithwick and Garrett Epps, have praised Judge Stephen Reinhardt’s opinion holding that California’s Proposition 8—a referendum passed in 2008 making same-sex marriage illegal—is unconstitutional. The praise, however, has not been unanimous.
Along with his fellow Republicans, Jeff Sessions spent much of the first day of Elena Kagan's confirmation hearings weirdly taking aim at the storied judicial career of Thurgood Marshall. Why? Because Marshall was an enemy of originalists, and the senators wanted to portray Kagan, who clerked for him, as cut from the same ideological cloth.