"A challenge to a federal law that authorized intercepting international communications involving Americans appeared to face an uphill climb at the Supreme Court..."

"... on Monday, but not one quite as steep as many had anticipated," observes Adam Liptak at the NYT.

The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea....

The possibility that the courts may never rule on the constitutionality of the law seemed to rankle some of the justices. “Is there anybody who has standing?” Justice Sonia Sotomayor asked....

Justice Antonin Scalia [said] “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court... That just proves that under our system of separated powers, it is none of our business.”

Here's the transcript.

Absentee ballots are rejected twice as much as in-person ballots.

2% of these efforts at voting fail, writes the NYT legal correspondent Adam Liptak. Apparently, people make mistakes like failing to put their signature in the right place. Or there's a signature that insufficiently resembles the registration signature. And there's also potential for fraud — which is apparently more likely to occur by mail. It's also the case that more absentee ballots are requested and sent out than are returned.

Liptak suggests the potential for litigation if an election is close:

If the contests next month are close enough to be within what election lawyers call the margin of litigation, the grounds on which they will be fought will not be hanging chads but ballots cast away from the voting booth.

The beginning of the article nudges us to think that the problem is that honest people are tripped up and disenfranchised and that states are somehow causing more people to take the absentee approach to voting and are therefore responsible for these mistakes. Liptak doesn't sketch out any legal argument that would go with that problem. And if you read far enough down in the article, you see that the real problem is fraud:

Election administrators have a shorthand name for a central weakness of voting by mail. They call it granny farming.

“The problem,” said Murray A. Greenberg, a former county attorney in Miami, “is really with the collection of absentee ballots at the senior citizen centers.” In Florida, people affiliated with political campaigns “help people vote absentee,” he said. “And help is in quotation marks.”

Voters in nursing homes can be subjected to subtle pressure, outright intimidation or fraud. The secrecy of their voting is easily compromised. And their ballots can be intercepted both coming and going.

The problem is not limited to the elderly, of course. Absentee ballots also make it much easier to buy and sell votes. In recent years, courts have invalidated mayoral elections in Illinois and Indiana because of fraudulent absentee ballots.

In the end, Liptak shifts to the much-discussed topic of voter ID laws, which are aimed at in-person voter fraud — the less likely type of fraud. If voting in person becomes more difficult, more people may switch to absentee form of voting, and there will be more fraud, Liptak tells us, the opposite of what is supposedly intended.

I don't know if Liptak is going to change anyone's mind about voter ID laws — which I suspect is the main purpose of this article. But he did make me feel terrible about absentee voter fraud. Let's crack down on it! Making in-person voting easier isn't going to help much. Those nursing home targets aren't going to stop voting absentee. 

NYT/CBS poll shows low approval rating of the Supreme Court... but why?

A poll of 976 adults shows 44% approve of "the way the Supreme Court is handling its job," 36% disapprove, and 20% judiciously opine that they don't know. When asked if "the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?," 76% give the answer that is obviously prompted by the question: They sometimes let their own personal or political views influence their decisions.

You really have to be naive or to restate the question in your head before answering to resist the "sometimes" and say legal analysis only, but 13% did. 7% had the wits to quibble with or qualify the question and say that some of the Justices do or "it depends." The restrained "don't know" crowd dwindles to 4% at this point (which I think suggests that they took advantage of the "sometimes" prompt in the question and jumped on the obvious "yes").

Here's the analysis in the NYT by Adam Liptak and Allison Kopicki, who stress that the approval level is as low as it's been in a quarter century. But why is approval on the decline? Is it because of the new Obama appointees and what's going on with the liberal wing of the Court? Or is it John Roberts and the coterie of conservatives that the NYT would like to push back? The poll questions do not attempt to extract this particularity.

They don't ask, for example: 1. Do you think that the Supreme Court should strike down statutes that exceed the Framers idea of limited, enumerated powers?, 2. Do you think that the Court should define constitutional rights to accord with evolving notions of equality and individual autonomy?, 3. Can you name a Supreme Court Justice who is accurately applying legal analysis without regard to his or her own personal or political views?, 4. Can you name a Supreme Court Justice who has allowed his or her personal or political views to influence decisionmaking?

Different answers to questions like that could take us in quite different directions. But Liptak and Kopecki seem to assume that the conservatives are the problem:

The decline... could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions....

But:

On the highest-profile issue now facing the court, the poll found that more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care law when it rules, probably this month. There was scant difference in the court’s approval rating between supporters and opponents of the law.

The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.

You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases. That combination of attitudes is perfectly sensible. In addition, it's natural for human beings to perceive that the judges who aren't doing it right are the ones who are reaching the outcomes that they don't like. That's how the mind works. It's so banal I'm a little embarrassed to put it down in plain words.

And yet, I expect you to argue with me about it. I expect comments that will demonstrate exactly the thing that I just said was natural for human beings to perceive.

"No part of your argument has to do with racial or ethnic profiling?" asked Chief Justice Roberts, and the SG agreed.

The Arizona immigration case is emphatically not about the issue that seems to be all people opposed to the law argue about in the political sphere.

As in the Affordable Care Act case, it was Solicitor General Donald B. Verrilli and former Solicitor General Paul D. Clement arguing on opposite sides. Unlike in that case and because the law under attack is a state law, Verrilli is arguing against the choice of the democratic majority, and Clement is arguing to uphold it.

Mr. Clements [sic] said the state was making an effort to address an emergency situation with a law that complemented federal immigration policy. “Arizona borrowed the federal standards as its own,” he said.

Mr. Verrilli countered that Arizona’s approach was in conflict with the federal efforts. “The Constitution vests executive authority over immigration with the national government,” he said.

That is, it's a federalism case, not a constitutional rights case. The question is the allocation of power between the federal and state government. (The Affordable Care Act case is also a federalism, and not a rights case, even though in the political sphere, people opposed to the individual mandate concentrate on the imposition on the individual, not misallocation of power as between the federal and state governments.)

“What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia asked.

Chief Justice Roberts said the state law merely requires that the federal government be informed of immigration violations and leaves enforcement decisions to it. “It seems to me that the federal government just doesn’t want to know who is here illegally and who’s not,” he said....

Chief Justice Roberts, writing for four of the justices in the majority, said the state law under review “simply seeks to enforce” a federal ban on hiring illegal workers. “Arizona went the extra mile,” he wrote last year, “in ensuring that its law closely tracks” the federal one.

That was from the Adam Liptak article in the NYT. Here's Lyle Denniston at SCOTUSblog:

In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally.  And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active....

The Court’s three more liberal Justices — Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — offered what appeared to be a less than enthusiastic support for the federal government’s challenge....

Kagan has recused herself, by the way. It seems rather obvious that Arizona will win this case. The first quote in Liptak's article is Sotomayor saying to Verrilli: "You can see it’s not selling very well."

Adam Liptak — at the NYT — says the SG tried to appeal to Justice Kennedy's idea of liberty.

Liptak refers to the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty:

“There will be millions of people with chronic conditions like diabetes and heart disease... and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”

"Liberty" is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn't mean they're going to love everything you slap a "liberty" label on!

Liptak points to the oral argument transcript where Justice Kennedy asked the SG to "identify for us some limits on the commerce clause?"

Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Obviously, that's exactly not the kind of liberty the SG was talking about.

But there is another strain to Justice Kennedy’s conception of liberty, one that may help Mr. Verrilli. “When you think about liberty relative to Kennedy,” Professor [Helen J.] Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner."...

As Ilya Shapiro wrote in The Harvard Journal of Law and Public Policy in 2010, “Justice Kennedy’s jurisprudence is a constant struggle to find the right balance between liberty and responsibility.”...

In 1992, joining with Justices Sandra Day O’Connor and David H. Souter to uphold the core of the constitutional right to abortion identified in Roe v. Wade, Justice Kennedy wrote by way of explanation that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

Interesting and important quotes, but I don't see how they get us anywhere near connecting Kennedy's ideas about liberty to the policy of compelling the individual to take responsibility by requiring him to do one particular thing that the government has decided is the one thing that should be done.

As long as Liptak brought up abortion. Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child. Here's freedom for you: Take responsibility by doing what the majority has decided is responsible.

Or reverse that: Imagine the government deciding who was ready to bear a child and imposing a penalty on those who failed to have abortions... and imagine the government proclaiming that it was all in the name of liberty.

To say that no choice is choice. That compulsion is liberty. Freedom is slavery.

Reports from this morning's oral argument in the Obamacare case.

Tom Goldstein, mid-argument:

It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant....

When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. 

And at the end of the argument, Kennedy asked "the most important question," whether "the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment." Goldstein added: "But he didn’t overtly embrace that. It will be close. Very close."

AND: Lyle Denniston says:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

Denniston thinks the SG failed to convince Kennedy, but the then the lawyers for the challengers somehow undercut their own case in Kennedy's eyes. I need to listen to the recording and read the transcript. I think someone who genuinely hadn't decided might come at the lawyers on both sides with questions containing the doubt that he had about going their way so they could come forward with their strongest arguments.

ALSO: Adam Liptak writes:

“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verilli Jr., only minutes into the argument.

Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.

Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cell phones. And Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.

The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one....

Liptak characterizes the argument as "unusually intense and pointed" — and 2 hours long.

The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."

It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)

In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....

[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”

See how easy it is to dissipate the tension? Why, it's an orgasm of tension relief! The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.

Isn't it fascinating how everything works to bulk up the power of Congress? Congress built political support by not saying tax when the bill was up for a vote, and it claims constitutional power by saying tax at the point when the Court is analyzing the bill after it is passed. What's most frustrating about this it's-not-a-tax-it-is-a-tax turnabout it that when the Court interprets Congress's powers, it exercises restraint, deferring to the political process, because that's where policy decisions are properly made. But  it was at the political, policy-deciding stage where Congress hid the reality of this massive new TAX.

But today is only about the Anti-Injunction Act, and it's key that the challenge is to the requirement that everyone buy health insurance and not just to the penalty that is imposed on those who don't meet the requirement. The requirement isn't a tax, even if the penalty is a tax. But it seems that the Taxing Power argument depends on the characterization that all we really have here is a tax, that the mandate is actually nonexistent. As I was saying the other day, that makes a lot of sense: The penalty is so small in relation to the cost of buying insurance that the requirement operates merely to define who owes the tax.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? Perhaps we'll get a hint of an answer today, as the Justices react to the lawyerly contortions around the Anti-Injunction Act.

The lawsuit against the University of Iowa College of Law for rejecting a conservative applicant for a lawprof job.

The applicant, Teresa R. Wagner, was active in the Right to Life cause, and the associate law school dean is caught in writing saying "Frankly, one thing that worries me is that some people may be opposed to Teresa serving in any role in part at least because they so despise her politics (and especially her activism about it)."

In the NYT, Adam Liptak calls attention to the dissonance conservatives ought to feel about litigation:

“I have serious misgivings about asking the courts to fix this through lawsuits,” [Walter Olson, a fellow at the Cato Institute, said]. “It threatens to intrude on collegiality, empower some with sharp elbows to sue their way into faculty jobs, invite judges into making subjective calls of their own which may reflect their assumptions and biases, all while costing a lot of money and grief.”

“At the same time,” he added, “there’s a karma factor here. Law faculties at Iowa and elsewhere have been enthusiastic advocates of wider liability for other employers that get sued. They’re not really going to ask for an exemption for themselves, are they?”

The Supreme Court will hear the Texas redistricting case — quickly, in time for the 2012 primary.

Adam Liptak reports:

The court stayed orders from a special three-judge court in San Antonio, which issued electoral maps late last month that seemed to help Democrats and Hispanic voters.

“This thrusts the Supreme Court right into the partisan thicket,” said Richard L. Hasen, an election law expert at the University of California, Irvine. “It is no exaggeration to say that with three or four additional Democratic seats at issue under the original court-drawn plan, the decision could help decide control of the House.”

In typical fashion, the NYT forefronts the Supreme Court's intrusion into politics when it runs counter to Democratic Party interests. But the lower court intruded itself into the matter, redrawing districts originally made by the Texas legislature (which is controlled by Republicans). The Supreme Court is reviewing the work of a court that shifted power toward Democrats. Officially — legally — what they're arguing about is whether the Texas legislature shortchanged Hispanic voters under the standards of the Voting Rights Act.

ADDED: From the Austin American-Statesman:

"We are hopeful that the Attorney General and his team will be able to demonstrate to the Court the necessity of throwing out the panel's maps," [said Steve Munisteri, the chairman of the Republican Party of Texas]. "Further, we hope the Court will either restore the original district lines of the Legislature, or at the very least, make revisions to the district court panel's maps which are more in tune with the legislative intent."

Supreme Court takes the Obamacare case.

Oral argument should be in March, with a decision by the end of the term, in time to have a massive impact on the presidential campaign. As I've discussed here, a decision to uphold the law will most likely hurt Obama's campaign for reelection.

If the Supreme Court upholds the individual mandate, Republicans will say: Now it's crucial to win the presidency and strong majorities in both houses of Congress so we can repeal this thing. If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem. But would Democrats want to argue that they need to win the presidency and strong majorities in both houses of Congress so they can push through some new health care reform? I doubt it. What a nightmare it was the first time, devastating the path of the Obama presidency and giving rise to the Tea Party!

From the first link, which is to Adam Liptak in the NYT:

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that. That was my prediction a few weeks ago, reading, not the the existing doctrine, but "the political forces at play and assessing the Court's vulnerability to those forces."

"Justice Anthony M. Kennedy... said he aspired to Ernest Hemingway’s stripped-down language..."

Talk about falling short of your aspirations! Of all the Justices on the Court today, I find that Justice Kennedy writes in the least straightforward style. Ah, well. At least he means well. Or is he conning us with this Hemingway talk?

The linked article — by Adam Liptak, in the NYT — links to this set of long recorded interviews with Supreme Court Justices about how they write and how they want lawyers to write.

Justice Ginsburg said she had learned much from a course Nabokov taught at Cornell on European literature.

“He was a man in love with the sound of words,” she said of her former professor. “He changed the way I read, the way I write.”

Justice Thomas, on the other hand, cited only a single author, and then only by way of contrast. “It’s not a mystery novel,” he said of a good brief. “People can’t think, ‘I’m Agatha Christie,’ or something like that.”

Ginsburg and Nabokov. Thomas and Christie. What do you think of Liptak's juxtaposition? It's a literary device. Would you put it at the Nabokov level? The Christie level? Somewhere lower?

ADDED: Both Nabokov and Agatha Christie are discussed in the Wikipedia article "Unreliable Narrator":

A controversial example of an unreliable narrator occurs in Agatha Christie's novel The Murder of Roger Ackroyd, where the narrator hides essential truths in the text (mainly through evasion, omission, and obfuscation) without ever overtly lying. Many readers at the time felt that the plot twist at the climax of the novel was nevertheless unfair....

Humbert Humbert, the main character and narrator of Vladimir Nabokov's Lolita, often tells the story in such a way as to justify his pedophilic fixation on young girls, in particular his sexual relationship with his 12-year-old stepdaughter....

Now, you want your judges and lawyers to be reliable narrators when they tell you about the facts of the case and interpret and apply the law. Thomas said don't be like Agatha Christie. You need to tell it straight. But Ginsburg said she learned from Nabokov, learned to love the sound of the words. Liptak — I think — intended to make Ginsburg look good and Thomas bad, but it didn't quite work out that way.

Why is the New York Times just noticing this?

Liberals (including President Obama) think the Supreme Court was wrong in Citizens United to say that corporations have free speech rights, but newspaper and book publishers are corporations. For some reason, the NYT is acting like it took a year to notice this hitch (which has been perfectly evident since the Citizens United litgation began in the lower courts). I guess the excuse for pretending not to see what was obvious is that it has been hoping to rely on the notion that some corporations have more rights than others. This new piece — a column by Adam Liptak — begins to concede that is an unworkable argument.

“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Kennedy wrote in Citizens United....

Eugene Volokh, a law professor at the University of California, Los Angeles, has reviewed the historical evidence. The bottom line, he said, is this: “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.”

But Liptak's column peters out with a quote from a lawprof who calls it a "difficult question" and...

There good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.

Yes, yes, it's obvious what the answer needs to be, and yet the debate must go on and on because it's so important to restrict the speech of people who organize themselves into corporations. Some of them. The bad guys. Not the good guys, like the ones who take a year to getting around to half-conceding the crushingly obvious.

Jan Crawford interviews Justice Scalia at the Federalist Society annual dinner.

David Lat reports:

Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.

Conversation turned to whether the Supreme Court’s opinions offer adequate guidance to the lower courts and litigants — a topic recently raised in this fascinating New York Times article by Adam Liptak, which Crawford explicitly referenced. Scalia appeared to agree with the general thrust of the piece.

“You can write a fuzzy decision that gets nine votes,” Scalia said, “or a very clear decision that gets five votes.”

On the subject of putting Supreme Court oral arguments on video, Scalia said he disapproved. He thought it would mainly lead to out-of-context clips. He thought he'd look great in those clips though: "I could ham it up with the best of them on television... I’d do very well." Lat calls that boasting, but I see modesty. Best of them implies that he doesn't think he is the best oral-argument entertainer. But he is!

On the subject of attending the President's State of the Union Address, he said: “It is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”

On the subject of hiring clerks from Harvard and Yale law schools:

"The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber."

I should reprise that Vonnegut quote from my 10:20 post. What if you had to argue that they do get dumber? I'll bet you could.

Lat says:

Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.

I must chide Lat for not seeing the political incorrectness of saying "the best minds." Or has Allen Ginsberg's "Howl" made "best minds" seem like a standard phrase? "I saw the best minds of my generation destroyed by madness, starving hysterical naked...." That's not innocuous. "Best minds" should prick up our attention and make us feel that something is not right.

Surely, the applicants that Harvard and Yale smile upon are not really our "best minds." Perhaps they are the "best minds" that are applying to law school in any given year, but I don't think even that is true. You have to do too many things right, too diligently, too early in life to hit the law school application sweet spot and get into the most selective schools. The best minds will have resisted acquiring the conventional indicia of career promise.

Come to think of it, Lat is also wrong to say that "highest ranked" is the preferred terminology for law schools. In academia, "highest ranked" implies highest ranked by U.S. News, and it is the proper thing to loathe U.S. News. It lacks the nuance to perceive the subtle qualities that make our favorite law schools so damned special.

Seriously... I think Scalia, being a good writer and speaker, simply believes that short, simple words are... best.

"Adam Liptak has a somewhat puzzling critique of Supreme Court opinions in the New York Times..."

Says Orin Kerr, taking it all very seriously.

"Mr. Sacks, a third-year law student at Georgetown, had set himself a goal, now shattered..."

"... he wanted to be the first person in line for every major argument this term. He brought three advantages to the task. He has no morning classes this semester, he lives pretty close to the court, and he has an unhealthy obsession with it. The name of his blog is a play on his habit of showing up early at the court’s street address."

The blog is First One @ One First, and the student, Mike Sacks, now has it linked in The New York Times. Congrats!

The big case today where he got beaten by "Robert Cumberland and Larken Euliss, two chemists from California," deals with whether the Second Amendment is applicable to the states via the 14th Amendment.

"The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery..."

"... foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era."

Liptak tacks left. Or, uh, the Court tacks right. John Roberts is a big right winger. Just look — look! — at all that incremental minimalism he's insidiously inflicting on us with the assistance of the mushily malleable Anthony Kennedy, that infuriatingly enigmatic Justice whom the smiling villain Roberts controls in ways that neophyte Sonia Sotomayor will never understand.

Was the city required to take race into account and not to take race into account?

Adam Liptak summarizes yesterday's Supreme Court argument in Ricci v. DeStefano, an important affirmative action case:

The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”

Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.

The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.

“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”...

The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”...

Chief Justice John G. Roberts Jr. [asked] the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”

Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.

Read the whole thing. This is genuinely a complicated problem, as the Breyer hypotheticals at the end of the article demonstrate.

"Today there is much focus on our rights. Indeed, I think there is a proliferation of rights."

"I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?"

Said Justice Clarence Thomas, who admits to being "morose sometimes," who retreats to his basement to rewatch "Saving Private Ryan" when things get "particularly routine," and who gets down on his knees and prays for strength, wisdom, and courage — but not the right answer — to decide difficult cases.

The linked article is by Adam Liptak, who curiously fails to see the humor in Thomas's mention of the dormant commerce clause.

"The Heller case is a landmark decision that has not changed very much at all."

Adam Liptak wants you to know that the Supreme Court's gun rights case was pretty much nothing more than an academic exercise.

If the question is whether a life sentence for rape is "cruel and unusual" when imposed on a 13-year-old...

... why highlight the question of whether a particular convict may have been innocent? To answer the question correctly and establish a legal rule on the subject, you have to assume the litigant was guilty. Does the NYT think this is what must be done to interest readers in stories about constitutional law? Or does it really hope to push public opinion on legal issues by stimulating a clutter of emotions?

ADDED: Here's a contemporaneous news report of the sentencing:

Regardless of the boy's age, he deserved the maximum sentence because he has a long criminal history, including an assault on a mental health clinic counselor and a burglary during which he killed a dog, Assistant State Attorney Larry Kaden said.

[Judge Nicholas] Geeker agreed.

"He is beyond help," the judge said. "The juvenile system has been utterly incapable of doing anything with Mr. Sullivan."

Because of the youth's record and other factors, state sentencing guidelines called for the life terms with no provision for parole, Kaden said....

[Sullivan] was accused of breaking into the woman's Pensacola area home when she was away May 4 and stealing jewelry and cash, then returning later the same day to rape her twice at knifepoint.