Arlen Specter has died.

He was 82.

ADDED: He played an important role in Supreme Court nominations:

Arriving on Capitol Hill in 1981, he became a dominant force during the Judiciary Committee’s rancorous Supreme Court nomination battles. More than anyone else, he helped defeat conservative nominee Robert Bork in 1987, and his aggressive questioning of law professor Anita Hill four years later — he accused her of “flat-out perjury” — helped secure Clarence Thomas’s confirmation....

“He was a Rockefeller Republican, a liberal Republican, and was willing to take on Presidents Reagan and Bush, and became a true leader in the bipartisan efforts that strengthened all the civil rights laws and defeated Bork,” said Ralph G. Neas, a longtime civil rights and health-care advocate.

“Then you had a line of demarcation,” Neas said, beginning with Thomas’s Supreme Court nomination and continuing with the Republican majorities in the House and the Senate after the 1994 midterm elections. “Arlen Specter became an especially cautious politician,” Neas said....

After Sen. Specter warned President George W. Bush not to nominate judges who would overturn Roe v. Wade — the 1973 Supreme Court case that essentially legalized abortion rights — conservative Republicans protested his appointment to the Judiciary Committee. Sen. Specter later said he would not use a “litmus test” to deny confirmation to abortion opponents.

He presided over the confirmations of Supreme Court Justices John G. Roberts Jr. and Samuel A. Alito Jr. and was a key force behind passage of some of the Bush administration’s controversial anti-terrorism laws, including the Patriot Act. But as controversy erupted over the government’s handling of detainees at Guantanamo Bay, Cuba, Sen. Specter became a leading proponent of habeas corpus rights for unlawful combatants.

I was just watching old clips from the Bork and the Thomas nomination hearings — because, after the VP debate, I wanted to review Joe Biden's performance.

"So what you're saying is that what counts is race above all.... You want underprivileged of a certain race and privileged of a certain race. So that's race."

Said Justice Anthony Kennedy at during the oral argument over the the University of Texas affirmative action policy. UT, following state law, automatically admits everyone who graduates from a Texas high school in the top 10%, a colorblind policy that produces a certain amount of racial diversity, especially since there are many high schools in Texas that have a very high proportion of black or Hispanic students.

So why does UT do any additional affirmative action as it fills up the portion of the entering class not admitted through the 10% program? You've already got a lot of diversity, so why do you need more? The additional affirmative action is precisely to bring in privileged black and Hispanic students, that is, the black and Hispanic students who did not attend racially isolated schools. If white students get too many of the top 10% spots at those schools, then the 10% program does not bring enough of these minority students into UT.

The university says... that the highest-ranked students at a disadvantaged school have lower SAT scores than some in the middle of the pack at a more competitive suburban high school. UT's affirmative-action program aims to open doors for minority applicants from middle-class or professional families. Such students can "help dispel stereotypical assumptions…which actually may be reinforced" by minorities admitted only because of the top-10% plan, UT said in its brief.

Justice Samuel Alito seized on that point. "I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," he said.

Actually, under the Court's case law, the diversity that is considered a compelling interest (which is what the state needs to defend race discrimination) is not about boosting the underprivileged. In Grutter v. Bollinger, the majority approved of the idea of  assembling a class that includes "a 'critical mass' of minority students," which does not mean "racial balancing, which is patently unconstitutional" but is "defined by reference to the educational benefits that diversity is designed to produce."

These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.”...These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” ...

The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.”... To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.

If it's about breaking down stereotypes, the 10% approach creates a problem: The minority students in the classroom tend to come from the racially isolated schools, the less privileged Texans. So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint."

Obviously, there were dissenting opinions in Grutter. For example, Justice Scalia scoffed at that idea of the compelling interest: The lesson taught by classroom diversity is "essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens."

I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional. (Do not assume you know what I think. You don't.) All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.

Did Justice Alito not see that (or was he mainly expressing disapproval)? Here's his quote (along with Justice Kennedy's), put in context, beginning at page 43 of the PDF transcript:

JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before. The top 10 percent plan admits lots of African Americans -- lots of Hispanics and a fair number of African Americans. But you say, well, it's -- it's faulty, because it doesn't admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas. Now, that's your argument? If you have -­ you have an applicant whose parents are -- let's say they're -- one of them is a partner in your law firm in Texas, another one is a part -- is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -­ parents both have graduate degrees. They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?

[GREGORY G. GARRE, counsel for the University of Texas]: No, Your Honor. And let me -­ let me answer the question. First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

JUSTICE ALITO: Well, how that question be no, because being an African American or being a Hispanic is a plus factor.

MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.

JUSTICE KENNEDY: So what you're saying is that what counts is race above all.

MR. GARRE: No, Your Honor, what counts is different experiences -­

JUSTICE KENNEDY: Well, that's the necessary -- that's the necessary response to Justice Alito's question.

MR. GARRE: Well, Your Honor, what we want is different experiences that are going to -- that are going to come on campus -­

JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that's race.

MR. GARRE: No, Your Honors, it's -- it's not race. It's just the opposite. I mean, in the LUAC decision, for example, this Court said that failing to take into account differences among members of the same race does a disservice -­

JUSTICE KENNEDY: But the reason you're reaching for the privileged is so that members of that race who are privileged can be representative, and that's race. I just -­

MR. GARRE: It's -- it's members racial group, Your Honor, bringing different experiences. And to say that -- if you took group, if you had an admissions process that to admit from a -- people from a particular background or perspective, you would want people from different perspectives.

CHIEF JUSTICE ROBERTS: Counsel -­

MR. GARRE: And that's -- that's the interests that we're discussing here. It's the interests that the Harvard plan specifically adopts and lays out -­

"[O]ur Eighth Amend­ment cases are no longer tied to any objective indicia of society’s standards."

"Our Eighth Amendment case law is now entirely inward looking," writes Justice Alito, dissenting today in Miller v. Alabama — PDF — which declared it mandatory life imprisonment to be "cruel and unusual" punishment when imposed on a juvenile.

Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed.

Do you think the Court has a "vision of evolutionary culmination"?

It's nerve-wracking waiting for the Supreme Court this morning.

We don't know if the health-care case will come out in a few minutes, but it might. Here are descriptions of the cases that might be announced today.

And here's where to read about the announcements as close as you can get to real time, with SCOTUSblog.

UPDATE 1: Alito has the opinion in Knox v. SEIU, which is about requiring state workers to pay for the union's political speech. The union lost in a 6-3 decision. There is a free-speech right to opt out. [Here's the PDF.]

UPDATE 2: There's a decision in the case about the new lower sentences for crack cocaine — applying it to sentences imposed after the Act was passed or crimes committed before the Act. This is a Breyer opinion, with 4 dissenting votes.

UPDATE 3: FCC v. Fox opinion written by Justice Kennedy. This is the case about the FCC's rules on "fleeting expletives," which were challenged as vague. "The decision is very narrow. The analysis section of the opinion is only 5 pages long. It says simply that the FCC didn't give advance notice. It doesn't decide the big questions of the constitutionality of the current policy." So it's not a decision on the free speech issue.

UPDATE 4: The excitement is over. The cases we are so nervous about will wait until next week. Relax!

10 highlights of today's Obamacare oral argument.

1. Justice Alito asks Solicitor General Verrilli if he could state "as succinctly as possible" a "limiting principle" on the Commerce Clause doctrine that says "Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce." Transcript (PDF) at 43. Verrilli proceeds to give a 200+ word answer, which I will try to compress into something actually succinct. Actually, I can't, because he doesn't articulate limits, he only makes an assertion about what Congress can do. Congress may force individuals to buy a product "if it is necessary to counteract risks attributable" to "a comprehensive scheme it has the authority to enact," and

Congress can regulate the method of payment by imposing an insurance requirement in advance of the time [when] the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.

Okay. Not succinct at all. And not responsive either. Can the SG state limiting principle? Obviously not.

2. Michael A. Carvin (representing the NFIB) argued that Congress didn't restrict its scheme to the people who actually affect commerce by consuming health care services and failing to pay for it. The regulated category, the uninsured, includes plenty of people who do pay their bills and who are not part of the problem. They are simply being swept in to collect the money to cover the costs of health care. Justice Kennedy — whose vote is crucial — says he agrees "that's what's happening here." Transcript at 104. Then he says, in what I think is his most revealing comment:

And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.

It's all a matter of degree... proximate cause.... He's not buying the bright-line rules. He's getting intuitive about it. I don't think Carvin meets him in the place where, he's revealed, he's making his mind up.

3. Carvin says the government can't compel you to buy "5 gallons of meat." Gallons of meat! Of course not. It's too bizarre. Transcript at 93.

4. Justice Sotomayor seems to have been watching the news lately, because she refers to the "1 percent." (She's talking about the only people who can pay their own health care bills when something catastrophic happens.) Transcript at 22. She also manifests some of that "empathy" Obama said he wanted when he was choosing a Justice. She says:

[W]hat percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance — do you think there's a large percentage of the American population who would stand for the death of that child — if they had an allergic reaction and a simple shot would have saved the child?

Transcript at 98. People don't want children to die... therefore, Congress has the power.

5. Paul Clement, representing the states, argues that the "solution" Congress came up with goes way beyond the problem the SG identifies (which is that uninsured people will consume services that they won't pay for).

If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we'd have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things.

Transcript at 74-75. Soup to nuts! Just slop that into my bucket of meat. You see the point though: There's an argument that it's sensible to characterize the uninsured as already in the market because of the costs that they represent and that they are now shifting onto the people who do pay for healthcare, but they're forced to buy insurance that covers much more than they are really at risk to consume. They're being swept in and exploited to get more money to spread around.

6. When the SG tries to argue that the penalty for failing to buy insurance is actually a tax (and thus within the Taxing Power), Justice Scalia says: "The President said it wasn't a tax, didn't he?" Transcript at 47. (The SG's answer was basically that it didn't matter.) Justice Ginsburg didn't seem to think it was a tax either: "A tax... is a revenue-raising device," but the purpose of the penalty is to get people to buy insurance, and if they do, there will be no revenue. Transcript at 48. (The SG said the tax code is full of provisions that push people to do things to avoid taxes.) Justice Kagan said the question is "whether the determined efforts of Congress not to refer to this as a tax make a difference."

I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?

Transcript at 49. The SG cites a few instances when members of Congress said they were relying on the Taxing Power, at which point the Chief Justice jumps on him: "Why didn't Congress call it a tax, then?" Transcript at 50. The SG admits that they must have thought it would be "more effective" to call it a "penalty."

7. Justice Breyer sounds genuinely angry when Carvin says Congress couldn't — if some terrible disease were "sweeping the country" — require everyone to get inoculated. He's all: "The Federal Government has no power, and if there's — okay, fine. Go ahead. Please turn to Justice Kagan." That felt kind of talk to the hand. Carvin soldiers on, saying it's a local matter. The states would have the power, but not Congress. Then Alito helps Carvin out:

In [Justice Breyer's] hypothetical the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there is cost- shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody,it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

There you have it. Quite pithy. There's a difference between the work of the government and a terrible disease. Transcript at 86-88.

8. If anyone thinks Justice Scalia, because of his concurring opinion in Raich, was susceptible to an argument based on the Necessary and Proper Clause, they should read pages 26 to 29 of the transcript.

The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left?

Scalia rejects the SG's answer pointing to those cases that deal with commandeering the states. Scalia wants recognition of the principle of enumerated powers. The SG says Congress isn't "invading the state sphere" because the market in health insurance is so huge. Scalia professed not to understand, then schooled him on the 10th Amendment, which "says the powers not given to the federal government are reserved not just to the States, but too the States and the people." The SG fell back on the generic doctrinal formula — "Congress is regulating economic activity with a substantial effect on interstate commerce" — and uttered the lame phrase "I would submit with all due respect" followed by the last-ditch assertion that any deeper analysis would be to "embark" on "Lochner-style substantive due process" (i.e., would involve the Court in the inappropriate reassessment of legislative judgments). That is, the SG never engaged with Scalia over limited, enumerated powers.

9. Justice Alito corners the SG in this exchange:

JUSTICE ALITO: Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group would consume and figured out the cost of an insurance policy to cover the services that group would consume, the cost of that policy would be much, much less than the kind of policy that these people are now going to be required to purchase under the Affordable Care Act?

GENERAL VERRILLI: Well, while they are young and healthy, that would be true. But they are not going to be young and healthy forever. They are going to be on the other side of that actuarial equation at some point. And of course, you don't know which among that group is the person who's going to be hit by the bus or get the definitive diagnosis. And that -­

JUSTICE ALITO: The point is -- no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly contract or be diagnosed with a disease that -- that is very expensive to treat. But if you take their costs and you calculate that, that's a lot less than the amount that they are going to be required to pay. So that you can't just justify this on the basis of their trying to shift their costs off to other people, can you?

GENERAL VERRILLI: Well, no, the people in that class get benefits, too, Justice Alito. They get the guaranteed-issue benefit that they would not otherwise have, which is an enormously valuable benefit. And in terms of the -- the subsidy rationale, I don't think -- I think it's -- it would be unusual to say that it's an illegitimate exercise of the commerce power for some people to subsidize others.

There you have it. You can see whom the government has chosen to exploit. The young, the healthy must pay for far more than the costs they are accused of shifting to others.

10. Justice Ginsburg finds it "very strange" that the government can't adopt an approach that tries to "preserve a role for the private sector, for the private insurers" but it can "can take over the whole thing." Transcript at 90. Justice Kennedy, back at page 25, puzzling over the Taxing Power, had "assume[d] that [Congress] could use the tax power to raise revenue and to just have a national health service, single payer." If it can do something so drastic, why can't it do something more moderate? Why force the government, if it wants to solve this problem, to do it in a more draconian manner? (You see this is what sparks my conspiracy theory: Perhaps Obama et al. would prefer to lose this case and be told the only path forward is single payer.)

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 Solicitor General argues that failure to comply with the requirement to buy health insurance does not equal a violation of federal law.

I'm at page 47 of the transcript (PDF) of this morning's oral argument, as the Justices explore whether they are dealing with the collection of a "tax" within the meaning of the Anti-Injunction Act. The Affordable Care Act imposes a "penalty" for failure to buy health insurance; it doesn't call the penalty a tax, but it collects the penalty through the individual's tax returns.

Justice Alito asks Solicitor General Verrilli whether the government is saying that in cases where someone is "exempt" from the penalty, it means that the person is "not under the obligation to maintain minimum essential coverage." The SG says that's right. Chief Justice Roberts says those with exemptions are subject to the mandate, just enjoying an exemption from the penalty. The SG says "you cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have the insurance."

Justice Kagan then wants to know about a person who isn't exempt from the penalty but who chooses to pay the penalty rather than to buy the insurance. What if this person then "finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?"

GENERAL VERRILLI: No. Our position is that person should give the answer "no."

JUSTICE KAGAN: And that's because —

GENERAL VERRILLI: That if they don't pay the tax, they violated a federal law.

JUSTICE KAGAN: But as long as they pay the penalty —

GENERAL VERRILLI: If they pay the tax, then compliance with the law.

JUSTICE BREYER: Why do you keep saying tax?

GENERAL VERRILLI: If they pay the tax penalty, they're in compliance with the law.

JUSTICE BREYER: Thank you.

Why "thank you"? Breyer must think he's pinned Verrilli down. This is indeed a tax?

GENERAL VERRILLI: Thank you, Justice Breyer.

JUSTICE BREYER: The penalty.

GENERAL VERRILLI: Right. That's right.

Hmm. So the SG is saying the only legal requirement is to pay the tax if you owe the tax, which you do if you haven't bought the insurance (and don't have some exemption). There's more discussion and Breyer returns at page 52 to say:

So is your point that the tax -- so, what we want to do is get money from these people. Most of them get the money by buying the insurance and that will help pay. But if they don't, they are going to pay this penalty, and that will help,too. And the fact that we put the latter in brings it within the taxing power. And as far as [the Anti-Injunctions] Act is concerned about the injunction, they called it a penalty and not a tax for a reason. They wanted it to fall outside that, it's in a different chapter, et cetera. Is that what the heart of what you are saying?

GENERAL VERRILLI: That's the essence they called it a penalty. They didn't give any other textural [sic] instruction in the Affordable Care Act or in the Internal Revenue Code or that that penalty should be treated as a tax for the Anti-Injunction Act purpose.

Roberts presses him: One purpose of the penalty is to raise revenue? Yes, says the SG, but because the ACA lacks "textural [sic] instruction in the statute that this penalty should be treated as a tax for Anti-Injunction Act purposes," it's not within the Anti-Injunction Act. Get it? Something needs to be specifically called a tax for the Anti-Injunction Act to apply, but when it comes to assessing Congress's enumerated power to tax, specific textual reference to "tax" isn't needed.

I think Justice Breyer was buying that argument.

The Supreme Court Justices "seemed to be all on the same page looking for a way to go ahead and decide the case even though they had different views on what theory to use."

A first report from today's oral argument about the applicability of the Anti-Injunction Act to the Obamacare litigation. Kevin Russell says that there was "skeptical questioning from at least 5 Justices." They all seemed to want to get over the purported threshold barrier and on to the substantive merits of the case, though they seemed to  who were offering different theories about why they should go forward with the case.

According to Russell, Justices Breyer and Sotomayor focused on the idea that the penalty for failure to buy insurance is not a tax. Justice Scalia gravitated toward a rule of statutory construction: jurisdictional limits are usually construed narrowly. Justice Alito looked at the government's failure to raise the Anti-Injunction Act bar, which could constitute a waiver of the bar that would be effective as long as the Act isn't considered a jurisdictional limitation (that is, a limit on the judicial power that the courts must observe whether the parties want them to or not).

The Chief Justice asked the Solicitor General (representing the U.S. government) to waive the Anti-Injunction Act (which would be effective only if the bar is not jurisdictional), but he refused. The Chief pressed him: Why would it not be in the interest of the United States to waive the Act? From Russell's report, it sound like the SG's answer stress the importance in other cases of having the act work as a jurisdictional bar. (That is, it helps the U.S. collect taxes if it lacks the power to waive the limitation, because in those other cases, the government's lawyers may fail to raise the bar in time to avoid waiver and then later want to invoke it.)

UPDATE: You can listen to the oral argument and read the transcript here.

UPDATE 2: On page 35 of the transcript, I detect eagerness in Justice Ginsburg to say that the Act does not apply in order to avoid the question whether the act is jurisdictional. When the SG agrees with her that the question could indeed be avoided, Justice Kennedy says "Don't you want to know the answer?" and gets a laugh. Kennedy then bears down: You just said "it would be very troubling to say that it's not jurisdictional," but why don't you think the opposite: That it would be good to know that the Act is waivable? The answer is that the government wants to be able to use the act as a bar in cases where the government's lawyers may have inadvertently waived it. (This point is in the original post, and I think Russell or the transcript misidentifies the Justice asking the questions. Was it Roberts or Kennedy?)

"How Not to Listen to the State of the Union."

Not turn it on?

No, seriously... from TNR's Jonathan Bernstein:

You can see the typical press approach in The New York Times preview of the speech earlier this week. The piece is almost entirely focused on Barack Obama’s strategies to win the American public to his side; we’re told that he’s expected to “dra[w] a stark contrast between the parties” and to “define the election” in various ways. The Washington Post says that “how he delivers the argument will test his rhetorical dexterity and set the tone for the year ahead,” and focuses on the speech as a campaign document.

But the truth is that presidential speeches rarely have much effect on public opinion. For one thing, most people already have opinions about the president, so they’re not particularly open to changing their mind even when they hear something they like....

So it’s unlikely that the State of the Union can produce any short-term bump in any president’s approval ratings. Even less likely is that the speech could have any effect on voter choice in the upcoming elections, which are still over nine months away....

Which is a reason to ignore the whole thing, but Bernstein says it's worth paying attention to because "the State of the Union is usually a reliable guide to White House priorities for the next legislative year and even beyond."

But I don't have to watch (or listen) to get that. The State of the Union is usually very tedious because of all the applauding and standing ovations... with half the people in the audience grimly enduring it. Maybe the first 5 minutes are worth it. I like to check out which Supreme Court Justices are there.

They're required to sit there, right in front and act like they are completely disaggregated from politics. But Obama might chastise them, and maybe one of them will silently mouth a simple response and get all the attention the next day. Will Samuel Alito be there tonight? Frankly, the interaction with the Supreme Court is the only aspect of the speech that interests me. With the big Obamacare case coming up this year and a pending decision that will have an impact on the fall election, I'm wondering what Obama might do.

When "the Government trespassorily inserted the information-gathering device" on a car, it was a search within the meaning of the 4th Amendment.

Says the Supreme Court, this morning, in United States v. Jones. Scalia writes the privacy-protecting opinion, joined by Roberts, Kennedy, Thomas, and Sotomayor.

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information....

The text of the Fourth Amendment reflects its close connection to property...

Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century....

Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy”....

Despite the deviation — which worked to protect people using public phones and so forth — the Court rejects the Government's argument that Jones had no "reasonable expectation of privacy" with respect to the underside of his Jeep and where the Jeep was when it was driving about on the public roads. The Katz test was about extending the scope of an individual's privacy, not cutting back on traditional property-based protections.

There's no dissent, but Alito writes a concurring opinion which is joined by Ginsburg, Breyer, and Kagan. Alito characterizes the majority of using "18th-century tort law" to interpret the 4th Amendment and says the question should be analyzed in terms of reasonable expectations of privacy.

"A professor lost his long legal fight to keep thousands of foreign musical scores, books, and other copyrighted works in the public domain..."

"... when the U.S. Supreme Court ruled against him on Wednesday in a case that will affect scholars and artists around the country."

The scholar is Lawrence Golan, a music professor and conductor at the University of Denver. He argued that the U.S. Congress did not have the legal authority to remove works from the public domain. It did so in 1994, when the Congress changed U.S. copyright law to conform with an international copyright agreement. The new law reapplied copyright to millions of works that had long been free for anyone to use without permission.

It's really Congress's fault, but the Court might have saved us from this unpleasant legislative imposition. There were 2 dissenters, 2 of my favorite Supreme Court Justices, Stephen Breyer and Samuel Alito — one liberal and one conservative, which makes 2 seem like more than 2.

"Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," declared the majority opinion, which was written by Justice Ruth Bader Ginsburg.

In a dissenting opinion, Justice Stephen G. Breyer, writing for himself and Justice Samuel A. Alito, faulted the Congressional action. "The fact that, by withdrawing material from the public domain, the statute inhibits an important pre-existing flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute," he wrote.

The case is Golan v. Holder. Here's the full text.

Richard Posner says a judge in a hard case may properly "fall back on some strong moral or even religious feeling."

From an interview in the NYRB that you won't be able to access in full if you are not a subscriber:

If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.

Via Christopher Shea in the Wall Street Journal, who characterizes Posner's approach as "an unspeakable opinion these days."

Unspeakable? Really? I hear it all the time... often from the same leftish professors who've made a point of loathing Posner. I've heard a lot of that loathing because my law school lies within the 7th Circuit, where Judge Posner sits... and where he will remain, because the place where his opinion really is unspeakable is (as Shea notes) before the Senate Judiciary Committee, if you want to get confirmed to a new judicial appointment.

And thus are we deprived of the very best minds, as Posner — about as good as we can get in a judge — bluntly points out:

One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that.

ADDED: Here's the book the NYRB interview is based on: "How Judges Think." It's excellent. (But it's not available on Kindle, annoyingly.)

IN THE COMMENTS: Don M said:

I would prefer a court like this.

Scalia
Scalia
Roberts
Alito
Alito
Clarence Thomas
Clarence Thomas
Clarence Thomas
Clarence Thomas

In the violent video games case, Scalia notes the irony of Alito's strenuous effort to describe the "astounding" violence.

From the majority opinion in the just-decided case of Brown, Governor of California v. Entertainment Merchants Association:

JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

The Court strikes down a California law that prohibits the sale or rental of "violent video games" to minors. The statute defined violent games in a way that "mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York." But sex and violence are different: "obscenity is not protected expression" under the First and Fourteenth Amendments. California was trying "to create a wholly new category of content-based regulation that is permissible only for speech directed at children." "That is unprecedented and mistaken," the Court says today.

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

I was reading that out loud here at Meadhouse, and somebody said: "The Supreme Court needs spoiler alerts!" 

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187–189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).

That Homer passage still grosses people out. Even after all the horrible movies and video games they've witnessed.

Alito, by the way, does not dissent. (Remember he was the lone dissenter in the Phelps case, showing the most empathy for sensitive people brutalized by ugly expression.) He thinks that "the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie," and he'd prefer to put off the more difficult free speech questions and  "hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires." That would leave room for legislatures to craft better laws designed to protect minors.

ADDED: The 2 dissenting opinions come from Justices Thomas and Breyer. Thomas relies on originalism: "the founding generation" didn't think First Amendment free speech included a right "to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians." I haven't had the chance to read the entire opinion, but I can see that it contains some detailed discussion about the history of ideas about children. I'll leave that for another post.

Justice Breyer's dissenting opinion reject the facial challenge to the law. He says the "case is ultimately less about censorship than it is about education."

Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to mak­ing our system of government work.... Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments.

Justice Alito: "I've never earned an honest living."

He was responding to the charge that he's pro-business:

Alito recalled seeing one television commentator assert that Alito had previously worked for the Chamber of Commerce. "I wondered if I was suffering from amnesia and thought I'd better check my resumé,” Alito said. “The only employers I've ever had have been the Department of Justice and the Supreme Court. I've never earned an honest living."

Justice Stevens, still voting...

... says he would have joined Justice Alito's "powerful dissent" in Snyder v. Phelps.

I'm Bloggingheadsing with Dahlia Lithwick... and it's all about law.

The episode is titled "Funkier Than a Mosquito’s Tweeter" — which is the title of the Tina Turner song I pointed at in my post about Justice Breyer referring to "the tweeter."



Subjects:

The Supreme Court’s real diversity problem
How blogging made Ann bold
Is the real world more of an echo chamber than the Internet?
Do judicial elections make a mockery of justice?
Dahlia: Having three female justices has changed the Court
The problems with France’s anti-burqa law

"On Justice Samuel Alito: Conservatives Can Have Empathy Too!"

The Wall Street Journal law blog acknowledges this Emily Bazelon piece.

This reminds me of what I wrote (in a NYT op-ed) when Bush first nominated Alito. Describing 2 cases in which he "displayed a sensitivity to the needs of adherents of minority religions" that was missing from the Supreme Court decision that, as a lower court judge, he had to apply, I went on to say:

Yes, chances are that a Justice Alito will please conservatives more often than liberals.... Still, [liberals] should give serious study to his record; they may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia.

Speaking of conservatives and empathy, Rush Limbaugh monologued about that last week:

By itself, what does sitting around caring about something accomplish? Now, if it motivates you to do something that's an entirely different thing. I find that most people, particularly people on the left, want plaudits, they want gold stars, they think of themselves as superior people just because they care....

I don't worry about things that I have no control over. I used to, big time. I can't tell you the shackles I had on myself worrying about all kinds of stuff. I was worrying about what might happen next year if I did this or did that. There was nothing more paralyzing in my life than to worry about stuff I had no control over. And in the process, I actually limited what I could control.

The Westboro Baptist Church wins in the Supreme Court in the case about protesting at a soldier's funeral.

"The First Amendment shields Westboro from tort liability for its picketing in this case."

Chief Justice Roberts writes the opinion, with only Justice Alito dissenting. Justice Breyer has a concurring opinion. From the Roberts opinion:

The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence....

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995)....

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield West- boro from tort liability for its picketing in this case.

Clearly, this is the right outcome.

AND: Alito, the lone dissenter, stresses the value of the tort called "intentional infliction of emotional distress":

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.

Breyer's short concurrence makes the point that the decision is limited to in-person picketing about matters of "public concern." In adding that the Court "does not examine in depth the effect of television broadcasting" and "internet postings," I get the sense that he's looking ahead to cases about bullying.

Professor Tribe would like you to know how nonpartisan the Supreme Court Justices are ... I mean, will be, when they decide the individual mandate question the way he would like.

The NYT has an op-ed by lawprof Larry Tribe that purports to demonstrate how obvious it supposedly is that the Supreme Court will find the health care law constitutional.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Of course, the argument Tribe likes was presented, considered, and rejected in the 2 federal court cases. It's a perfectly comprehensible argument, but that doesn't make its success in the Supreme Court a sure thing. Acting as if it does, Tribe says "it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Oh, you terrible people who fail to bow to the obviousness of one side of a constitutional argument! You compound your sins by falling prey to the upsetting belief that the Supreme Court Justices are politically partisan!

To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

That's not sarcasm. Read the whole thing. You'll see, it's not intentional sarcasm. It might be an attempt to sweet-talk Scalia into using the health-care litigation to score some political neutrality points, but it's not sarcasm. It's more: Ah! What a fine Justice, full of integrity and intellect, I will say Justice Scalia is if he decides this case my way!

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. 

Oh! People are sooooo unfair to Justice Kennedy. I, Larry Tribe, will protect him from the scurrilous "swing vote" remarks people make.... when he decides this case my way!

Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. 

I hope they do a better job of pointing at the Lopez case than that NYT link does. Here's the right link, in case anyone cares.

But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. 

Drew a bright line, eh? But the line, if you can call it a line, isn't about "commercial choices." That's Tribe's phrase — as he assures us the line is bright! — and what the Court said was "commercial activity" — which is why the argument about the distinction between activity and inactivity has been so important in the health care litigation. Tribe declares lines to be bright precisely at the point when he is shedding darkness. (If you think you can't shed darkness, I agree. I'm just riffing on the linguistic oddity of the lawyer's expression "bright line." Aren't easy-to-see lines usually dark — like black ink on white paper?)

The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

"Quintessentially" is such a strong word that perhaps you will not notice that it's next to the phrase that is not "economic activity."

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.

Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.

UPDATE: I have 2 more posts about this op-ed, one dealing with Tribe's disapproval of people who fail to take responsibility and one dealing with the meaning of "choice."

Arlen Specter accuses John Roberts and Samuel Alito of violating the oath they took at their confirmation hearings.

The former Republican, on the way out of the Senate, thinks this is worth saying:

"The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedents...

"Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising — thus effectively undermining the basic Democratic principle of the power of one person, one vote...  Chief Justice Roberts promised to just call balls and strikes and then he moved the bases."

Bleh. You just disagree with the call.  I hate this sort of political posturing. It's not the massiveness of the congressional record that makes a statute constitutional. It's fitting within the Constitution.

Specter is acting as if the question at the confirmation hearing was: If we put a really, really huge number of words into the record, do you promise to let us do anything we want? And the answer was: Yes, of course. When I see a lot of pages, I always think, wow, that must be true.