A Supreme Court Prediction

You'll drag me outta here when hell freezes over. (Flickr/DonkeyHotey)

Barack Obama has made two appointments to the Supreme Court, both of which involved replacing reliably liberal justices (Souter and Stevens) with presumably liberal justices (Sotomayor and Kagan). If Obama is re-elected, there's a fair chance he'll get at least one one more appointment. Four of the justices are in their 70s, and you never know when one might get ill or just decide that enough is enough.

So here's my prediction: If Obama wins a second term, and one of the five conservative justices on the Supreme Court retires, Republicans will, for the first time, insist publicly that the president absolutely, positively must appoint a justice who reflects the ideology of the person s/he is replacing.

That no one has argued this before will be irrelevant, as will Republicans' own satisfaction with appointments like Clarence Thomas, one of the most conservative justices in history, replacing Thurgood Marshall, one of the most liberal. Republican senators, legal eagles, and commentators will thunder that appointing someone who reflects Obama's own views is an unconscionable power grab on the part of this socialist big-government usurper, and the only way to avoid tearing this country asunder and making a mockery of the rule of law is appoint a conservative. Mark my words.

How will Obama respond? The easy answer is that he'll meet them in the middle by appointing a moderate, leaving Democrats steaming and Republicans unappeased. But who knows?

Pirates of the Corporation

Let’s play make-believe (sorry, lawyers call it “counterfactual”) with Justice Stephen J. Breyer. Imagine that Edward Teach, known as Blackbeard, had incorporated his buccaneering business as Pirates, Inc. Now Blackbeard is captured.

And sued. “Do you think in the 18th century if they'd brought Pirates, Incorporated [to court], and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation—do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home[?]”

Our Anti-Government Hypocrisy


Americans, the political scientists (and common sense) tell us, are ideologically conservative and operationally liberal. On the level of ideology, they’re opposed to government’s intervention in the economy. On the level of daily life, they support such universal government programs as Social Security and Medicare.

Taking Anti-LGBT Discrimination Seriously


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.

The Court That Walks Off Cliffs


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.

Ho-Hum, Another Day, Another DOMA Defeat

Earlier this week I wrote about how quickly gay people are winning, just at the same time that women are losing. Speak of the devil! Yesterday, ho-hum, yet another federal district court judge ruled that a key portion of the Defense of Marriage Act was unconstitutional, in Golinski v. Office of Personnel Management. Karen Golinski is a lawyer who works for the Ninth Circuit in San Francisco (nice touch, yes?).

Trying to Win Beyond Virginia

I wrote earlier this week that Virginia's mandatory ultrasound law was proving to be highly unpopular. But though many its Republican supporters were clearly spooked by the level of opposition, I didn't think it very likely that Governor Bob McDonnell would withdraw his support. Happily, I was wrong. McDonnell came out against the provision, and it will presumably be deleted from the final legislation.  

The Right to Tell Lies


Most Supreme Court arguments last one hour—30 minutes for each side.  At unpredictable intervals, however, the Court grants one party several extra millennia of agony as a once-solid case disintegrates in full view of the entire courtroom.

The End of Affirmative Action in College


As my colleague Jamelle Bouie noted yesterday, the Supreme Court agreed to hear Fisher v. UT Austin, a challenge to the use of affirmative action for undergraduate admissions at the University of Texas. I wish I could make a case for more optimism, but I have to agree with the conventional wisdom that Grutter v.

Luck Not Be a Lady

You know those odd moments in animated cartoons when a character's head seems to be boiling and popping, one eye getting bigger, then smaller, and so on? As a journalist who focuses on gender and sexuality, that's how I feel lately: happy, sad, shocked, celebratory—all at the same time.  

Bare Minimum Wage

Big business lobbyists work to prevent any rise in workers' paychecks.


The federal minimum for an hourly wage was $3.35 in 1982 and now it’s $7.25, up 120 percent. Inflation, meanwhile, has climbed during that period by 135 percent. Eight states, including New York, Connecticut, and New Jersey, are considering legislation to boost the base wage. Advocates say that such state measures are fair and make good economic sense: Putting more money in the hands of workers means more demand—good news for small businesses struggling to overcome poor sales. Then there’s politics. More than two-thirds of Americans favor raising the hourly wage to at least $10.

Not in Montana


At the opening of each oral argument session, a Supreme Court clerk announces, “All those having business before this honorable Court draw nigh and you shall be heard.”But does the Court really listen?

No Celebrity Gossip Here


United States v. Alvarez, which I wrote about yesterday, is fascinating in its complexity. The government in this case has asked the Court to hold that it can punish people who lie, regardless of whether they lie to extort money, win political office, or just to impress people at the corner tavern.  The principle is breathtaking in its sweep. In the past, the Court has approved statutes that punish knowingly reckless false statements of fact—but only when those statements cause some measurable harm.

The New Freedom Riders

A multiracial group of young people are fighting to end the NYPD's stop-and-frisk program.

(Flickr/Tim Drivas)

Two things struck William Rivera about the 30 protesters who, after an hour of chanting and speechifying to cameras, cops, and the curious, were now marching deeper into the Bronx on an overcast January afternoon. The first was that somebody was finally speaking out against the New York Police Department’s stop-and-frisk policy, a tactic in which officers pat down and question people on the street without a warrant. The second was that a lot of those somebodies were white.

“Hell, yeah, I’m surprised that white people come out here fighting for us,” says Rivera, 24. Police, he says, stop him three or four times a week, and he now automatically assumes the “shirt up” position whenever officers cross his path.

Damn Lies and Double Jeopardy


The Supreme Court comes back into session Tuesday. On that day, the Justices will earn their salaries (and then some) by considering the following questions: