"I loved the D.C. Circuit... and I could've stayed there. But I think I got maneuvered into this job. And then I had a really bad interview."

Said Clarence Thomas in this wonderful hour-long conversation with Harvard Law School Dean Martha Minow. The Harvard law students give him a standing ovation as he arrives in the room, and he jokes "I should quit while I'm ahead."

In fact, he goes on to be warm, interesting, deep, smart, and there's just way too much good stuff in here for me to quote everything that jumps out, because, really, everything jumps out. If you skip over the long introduction and get to the first question, he talks about growing up among illiterate but good and loving people and then discovering reading at a segregated library in Savannah. The librarians introduced him to Dr. Seuss.



Minow and Thomas talk about their mutual love for a book about introversion called "Quiet," and Thomas characterizes himself as very introverted. He talks about working in all 3 branches of government and greatly preferring the judiciary because in the EEOC and in the legislature, though he loved the people, it was too political. "I don't understand politics.... It made my head hurt.... It was like new math."

ADDED: He says Ruth Bader Ginsburg and Elena Kagan are delightful. When Kagan arrived, he said to her: "You know, it's going to be a joy disagreeing with you for years to come."

AND: At oral arguments, Justice Breyer doodles stick figures. The 2 of them sit together at oral argument and share jokes and laugh. "You know, he's very smart, but he's sort of a moving around smart," he says, making a gesture as if he were moving Breyer's little stick figures around. "And I tend to be someone, I lock into something, I want to think it through for a long time, and he likes to move around, and I sort of rein him in. Every so often, what I'll is I'll say, 'What about this, Steve?' and he'll pop up and ask and a question." So that's how Clarence Thomas asks questions at oral argument. Thomas laughs because it's "just something I'm throwing out," and Breyer makes it into a question.

What happens if states turn down the Medicaid expansion money and decline to set up the health-insurance exchanges.

Michael D. Tanner explains the surprisingly extreme consequences.

[I]f a state doesn't expand its Medicaid program, most of those who would've been eligible for Medicaid will now become eligible for subsidies through ObamaCare's health-insurance exchanges. And those subsidies are paid in full by the feds.

Thus, New York, for example, would shift most of that $52 billion in new costs back to the federal government.

Of course, if states do shift those costs back to the feds, that will cause the federal cost of ObamaCare to skyrocket. If every state were to refuse to expand its Medicaid program, the feds would save roughly $130 billion in their share of Medicaid costs in 2014, but would have to pay $230 billion more in new exchange-based subsidies — for a net added cost of $100 billion. And that's just for the first year...

ObamaCare gives the feds the authority to step in, setting up and operating an exchange in any state that doesn't set up its own... [But f]ederal subsidies are available only through exchanges that the states set up. The feds can't offer subsidies through a federally run exchange.

Thus, if states neither expanded Medicaid nor set up exchanges, that would effectively block most of ObamaCare's new entitlement spending.

Given the potential for chaos in the Obamacare scheme if the states decline to participate, it's surprising that Justices Breyer and Kagan went along with the Chief Justice's opinion on the spending power.  The original legislation had the states locked in, because they'd lose all their Medicaid funding if they didn't participate. That was held to be coercive, and thus not supportable by the spending power, which requires that states be given a choice whether to run federal programs and accept various related conditions. Under the Court's ruling, the states only lose the funding for the expansion of Medicaid, which makes it possible for them to say no, as many seem to be doing.

There's an elaborate set of moves in the future, and I wonder how far ahead the Chief Justice looked when he chose his position. Perhaps Obamacare is doomed by the seemingly modest, miminalist hit it took on the spending power issue. But wouldn't Breyer and Kagan have seen ahead too? Why did they join him? I'm not ready to give him genius points for skillful playing of the long game.

How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?
Basically, Citizens United. Why do people think the Court is political because it valued free speech rights above a congressional effort to squelch speech 60 days before an election? Because elite lawprofs like Friedman have been telling people over and over that Citizens United was political, and you know how much people trust elite lawprof commentators... manipulating the perceptions of American people since... never.

Let's back up a minute. Citizens United came in 2010, the year that "marked the beginning of the current downward slide." Here's something else that happened in 2010: Elena Kagan joined the Court. The year before, Sonia Sotomayor joined. 2 Obama appointments in 2 years. Friedman talks about those 2 appointments, but only in the context of saying that after Kagan replaced Justice Stevens, it became true for the first time since 1953 that all the liberals are appointees of Democratic Presidents, and all the conservatives are appointees of Republican Presidents. (Stevens had been appointed by Gerald Ford and, Souter, whom Sotomayor replaced, had been appointed by George H.W. Bush. You have to go back really, really far to get to a Justice who went conservative on a Democratic President!)

Friedman concludes:

The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. 

See how that works? There are 5 conservatives and 4 liberals. The liberals, though they are the minority, need to win a whole lot more if the Court wants to recover the approval of the people. And that — if the Court were to buy it — would shift the Court to the liberal side without needing another appointment.

But here's the test of Professor Friedman's actual belief in his theory. What if President Obama gets the opportunity to replace one of the 5 conservative Justices? Would Friedman publish an op-ed pressuring the liberal Justices to vote with the conservatives in order to bolster respect for the Supreme Court? Or would he be cheering hooray for the liberal majority?

Oh, it's not that I think he (and his fellow elite lawprofs) would publish op-eds saying that out loud. I just think we'd be flooded with academic-sounding praise for all the thoughtful, well-reasoned opinions.

The Supreme Court's new double jeopardy case divided 6-3 on gender lines: was this "some sort of gender-related 'empathy'"?

Lawprof Mark Tushnet wonders, noting the dissent limited to the 3 female Justices — Ginsburg, Kagan, and Sotomayor — and expressing the belief that "this is the first case in which the Court has divided along gender lines." I don't think he's taking account of instances when Justice O'Connor (or Justice Ginsburg) was the only woman on the Court and dissented alone. It is striking to see the 3 women segmented off, but really, what is the big deal? They are the liberal wing of the Court, so it's just a matter of whether or not Justice Breyer joins them. I suppose one might wonder whether there's something male about Breyer's defection from the usual group of liberals.

The case in question, Blueford v. Arkansas, found the 3 women championing the rights of a man accused of murder after a 1-year-old boy died of a severe head injury while in his care. Nothing particularly appealing to females there, as Tushnet notes.

Perhaps what's at work is some sort of gender-related "empathy" triggered by the prosecutor's decision to "overcharge," as the three justices might have thought, and then to continue to try to obtain a conviction on an unjustified charge. (I can also imagine -- I stress the word, because I have absolutely no inside information -- Justice Kagan thinking the case close on the merits and deciding that it would be neat to have the Court line up along gender lines. For what it's worth, I note my personal judgment that Justice Sotomayor's dissent is tighter than the Chief Justice's opinion for the Court.)

Tighter?! I hope that's not a gender-related notion, professor. I've read both opinions, and I think the Chief Justice's majority opinion is plenty tight.

Anyway... neat to have the Court line up along gender lines. Tushnet can imagine Kagan thinking that. I can't.  (And why is Kagan running the show? It's Sotomayor's opinon.)

"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."

Laurence Tribe says Obama "didn't say what he meant" about the Supreme Court and needs to "clarify."

"I don’t think anything was gained by his making these comments and I don’t think any harm was done... except by public confusion."

ADDED: Remember when Larry Tribe pushed Obama (his former student) to nominate Elena Kagan to the Supreme Court because "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind"?

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

I wonder how well Kagan is doing scaling the convolutions of Kennedy's brain these days. As I said at the time: "if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played."

Reports from Day 3 of the Obamacare oral argument, now in progress.

The argument today is about severability — that is, whether, if a portion of the Act is struck down, some or all of the rest of the Act must fall along with it. Kevin Russell reports, following Paul Clement's argument (boldface added):

The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly  Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.

And from Amy Howe:

Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.

But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)

Thus, it sounds like the parts of the Act that would destroy the private insurance companies will go down along with the individual mandate — that these provisions of the Act are not severable (which seems obvious to me). The harder question was whether the entire Act will fall.

Are we supposed to go through the whole 2700 pages? Ha ha. Why should they? The members of Congress didn't. Obama didn't. (Signing the bill, he said: "... you know the feeling of signing your name to pages of barely understandable fine print").

And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.

When it comes to the Obamacare case, you just can't lose.

Let me state the obvious and not belabor it: Whoever loses will easily and powerfully leverage that loss in the political arena.

If Obama loses, look what he will be able to say to the American voters as they contemplate his reelection:

1. I brought you a wonderful solution to a terrible problem. (What he won't say: It would have been a disaster, and fortunately, you will now not need to experience it and see that it was not wonderful, but terrible.)

2. My opponent has been arguing for months and months that you need to elect him to get Obamacare repealed. The Supreme Court already did that work, so that major issue is gone. Move on!

3. There are 5 activist conservatives on the Supreme Court, and if you elect a Republican, by the end of his term, there might be 7. The Court will skew far right, destabilizing the law as we know it. There is a great danger here that you must guard against by keeping me in the position to nominate the next Supreme Court Justices and thereby to rebalance the Court.

If Obama wins, the GOP candidate — presumably Mitt Romney — will be able to say:

1. Obamacare is a terrible disaster looming and bearing down on us. You may have thought the Supreme Court would save us from this dire consequence, but it did not. Alarm! Alarm!

2. The Supreme Court left this matter to the political processes, and it is therefore imperative that the political process work — by electing me — to make a repeal possible.

3. There are 5 activist liberals on the Supreme Court, including the 2 liberal Justices chosen by Obama to rubberstamp his liberal agenda. If you reelect Obama, by the end of his second term, there might be 7. The Court will skew far left, destabilizing the law as we know it. Do you want Kagan II and Sotomayor II joining the Court? You must elect me to restore balance.

ADDED: I think that a loss for Obama would be so politically advantageous for him that he might prefer it. Here's where I play with the idea that he's secretly trying to lose, and that's why the SG's argument yesterday was so bad.

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.

Only 28% of likely voters rate the Supreme Court "excellent" or "good."

This is the lowest Rasmussen has recorded (since it began tracking this question in 2006.)

Voters from all party affiliations give the Supreme Court similar ratings, but Democrats and unaffiliated voters give slightly higher negatives than Republicans do.

Overall, 33% believe that the Supreme Court is too politically liberal, while 28% say it is too conservative. Nearly as many (25%) say the ideological balance is about right. Another 14% are undecided. Most GOP voters (56%) think the court is too liberal. Most Democrats (54%) say it's too conservative. Unaffiliateds are more narrowly divided.

Ha ha. I find that breakdown funny. It makes me say the Supreme Court is actually doing just fine. Everybody wants it to skew more toward their politics? They don't deserve what they want.

A plurality of all voters (43%) believes the two justices nominated by President Obama are too liberal, showing little change over the past few months. Only seven percent (7%) regard Justices Sonia Sotomayor and Elena Kegan as too conservative, while 36% say their ideologies are about right. Fourteen percent (14%) are undecided.

Fifty-one percent (51%) of politically moderate voters and 65% of liberal voters believe the ideologies of both justices are about right, while most conservatives (75%) believe they are too liberal.

See what I mean?

Now, given that very moderate opinion about the Court generally, it's interesting to see that 69% of voters say that government lacks the constitutional power to require individuals to buy health insurance.

"Maybe there are good legal arguments why Kagan need not recuse herself..."

"... but there is no good reason that she shouldn't at least come forward and publicly explain her decision."

Not doing so suggests that there is something deeply political (and maybe, like Bush vs. Gore, even something partisan) going on, and that possibility could negatively infect what many of us on the left hope to be Supreme Court affirmation of the constitutional validity of the Affordable Care Act.

"So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the [Obamacare] case..."

"... while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case."

Eric Segall in Slate.

C-SPAN chairman Brian Lamb asks Chief Justice John Roberts to televise the Obamacare oral arguments.

Though the Court releases audio recordings of oral recording, it has never gone on TV. Should Court accept cameras for this momentous case?

"We believe the public interest is best served by live television coverage of this particular oral argument," Lamb wrote. "It is a case which will affect every American's life, our economy, and will certainly be an issue in the upcoming presidential campaign."

Lamb added that "a five-and-a-half hour argument begs for camera coverage." He said that "interested citizens would be understandably challeged to adequately follow audio-only coverage of an event of this length with all the justices and various counsel participating."

Justice Antonin Scalia criticized the idea of televised Supreme Court proceedings during a recent appearance before the Senate Judiciary Committee. "For every ten people who sat through our proceedings, gavel to gavel, there would be ten thousand who would see nothing but a 30 second takeout from one of the proceedings" he said, "which I guarantee you would not be representative of what we do." Scalia added that such soundbites would leave viewers with "a misimpression" of Supreme Court operations.

We already have the soundbites! And audio clips are played on radio and TV all the time. And we have text transcripts, from which we select quotes. So what is Scalia talking about? Perhaps it's that more people will pay attention if there is video, but how dare he hold his position of power and argue that his work should be monitored by fewer people? I think the real reason is that the Justices don't want us to see how they look as the sit for hours listening to arguments. They'd look grumpy and drowsy and puffy and wrinkly. They'd have to wear makeup. But even with makeup, they'd be far less camera-ready than the talking heads we're used to seeing on camera.

I've blogged a few times about the Supreme Court going on TV:

In "Where is the 9,000-foot cow?"/"What do you think about Satan?"/"What did James Madison think about video games?," I disagreed with Justice Ginsburg who noted some weird questions that Justices have asked at oral arguments and used them as a reason to exclude TV. Yeah, we'd be able to make hilarious YouTube videos splicing together things that sound ridiculous ripped out of context. But it's important in America to make fun of people who wield power. If you can't take it, you don't deserve the power. Judges may like us to think that they merely humbly channel the power that inheres in the law, so there's no point in looking at them as if they have a will of their own. We'll be the judge of that.

In "If everybody could see this, it would make people feel so good about this branch of government and how it’s operating," I quote Justice Elena Kagan, who is quoted by Kenneth Starr in a NYT op-ed arguing for Supreme Court TV. I said I thought that despite the complaints about how people would use video in a superficial way that "we would become involved in the substance of the law and attempt to work through the actual legal problems at a higher level than we do now."

In "Why Congress should impose TV cameras on the Supreme Court," I said I thought TV cameras would put healthy pressure on the Justices who cling to their positions — which they hold for life under the Constitution — as they advance into old age.

So, I've been in favor of Supreme Court TV for a long time. Is it a good idea for the first televised argument to be the most momentous one? I'd say no, which is why I would recommend that the Court bring the cameras in now and make video the norm, before the big 5-and-a-half-hour Obamacare extravaganza.

(Link to the C-SPAN request via Instapundit.)

"If everybody could see this, it would make people feel so good about this branch of government and how it’s operating."

Kenneth W. Starr —  former federal judge, Solicitor General and independent counsel — quotes Justice Elena Kagan in a NYT op-ed arguing — as so many have argued before — that the public deserves video access to the oral arguments in the U.S. Supreme Court.

The main argument against it, as stated by the resistant Justices, is that some Justices would showboat for the cameras and try to get the sound bite of the day. I think an unspoken reason why they resist cameras — when they release audio to the world — is that they don't want us all checking our how they look, particularly if they look tired and old. As I said back in 2005:

The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

This judgment may be unfair. Some Justices, as noted, are better looking than others. Some will subject themselves to hair and makeup specialists, and others won't tolerate it. And getting older damages even the prettiest face. Some Justices love the verbal jousting with the lawyers in the courtroom, while others think that all they need is the written argument and opt out of the live show. With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

But the cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanent but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court.

A new counterargument occurs to me as I reread that. A President with the power to appoint a new Supreme Court Justice will think about how well the nominee will represent the administration's political agenda on TV. He'd want someone who looks and speaks persuasively to the public through the new medium.

Justice Kagan talked about making people feel so good about the judiciary, and, obviously, she intended to convey the notion that the Justices stick to legal arguments and apply themselves to puzzling through the various texts. But if one Justice — say, Elena Kagan — has the skill and charisma to project into the camera and make her approach to interpretation lodge in the minds of the people, those who support the other "side" would want an equivalently powerful voice. That good feeling could be comfort with the abuses of power by the other branches of government or a complacency that whatever we need and want can be provided by a benevolent Court.

And yet, I suspect, that if people had more access to the arguments, we would become involved in the substance of the law and attempt to work through the actual legal problems at a higher level than we do now. I know I would love the ability to make clips from the video to incorporate into blog posts that discuss and explain the issues. Of course, I would jump at the opportunity to extract funny little things for all sorts of diverse bloggerly purposes. But the Court, like the other branches of government, deserves to be laughed at too.

"NPR Devotes Over 4 Min. to Supposed Ethics Issues of Thomas, Scalia, Alito; Barely Touches on Kagan."

Ha. I heard this segment myself the other day, and the intro completely had me thinking that it was going to focus on the issues relating to the liberal justices:

At times of partisan stress in American politics, the Supreme Court can become part of the game, and the ethics of individual justices can come in for criticism. In recent months, liberal groups have chastised conservative justices for attending private conferences put on by conservative political interests, and conservative groups have responded by leveling some criticism in the other direction.

NPR legal affairs correspondent Nina Totenberg has that story.

I kept waiting and waiting for Totenberg to get to the part about the liberal justices. After loads of detail about the conservatives, all we ngot was one sentence:

The conservative watchdog group, Judicial Watch, has also suggested that Obama Supreme Court nominee Elena Kagan should recuse herself from participating in any upcoming case challenging the Obama health care law, because she had been a legal official in the Obama administration.

Ridiculous!

"Justice Kagan's First Dissent."

I admired it myself (for the nicely clear writing), but the Atlantic's Andrew Cohen is downright fawning?

She was even willing to spend some time offering a "hypothetical" to make her point -- just like they taught her at Harvard Law School. Justice Kagan wrote:

Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.

Well, that is really spiffily written, but I don't see enthusing about her being "even willing to spend some time" writing it. Settle down, Andy. But you see why he's excited, don't you? It's been so demoralizing to liberals to have Justice Scalia writing readable, quotable dissents all these years while the other side of the Court has been so... boring.

Whatever happened to the "purchase" Larry Tribe thought Elena Kagan had on Anthony Kennedy's brain?

Remember that embarrassing sentence in Larry Tribe's letter pushing President Obama to nominate Elena Kagan? "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind." Remember discussing that in the context of a case called Arizona Christian School Tuition Organization v. Winn when it was argued last fall? I wrote:

This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. [Lyle] Denniston begins his description [of the argument] with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.

This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state....

Today, the Supreme Court came out with the decision in the case and there's Kennedy writing for the majority and Kagan  —with (guess who?) Ginsburg, Breyer, and Sotomayor — writing for the dissent.

The majority said there was no standing, which means that it did not reach the Establishment Clause question.

ADDED: Justice Kennedy makes the key distinction between this case and other cases (notably Flast) in which taxpayers had standing to challenge taxing and spending laws using the Establishment Clause:

[T]ax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience. In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture. The connec­tion would exist even if the conscientious dissenter’s tax liability were unaffected or reduced. When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative. And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accor­dance with their own consciences.

Dissenting,  Justice Kagan states the opposing position:

Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.

Still worse, the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other.

I love the clarity of Kagan's writing. But it will take more than that to gain purchase on Kennedy's brain. The truth is that Flast is out of line with a whole lot of other standing cases. Distinguishing this case from Flast may seem like a strain, but it's a more a matter of not letting the anomaly grow. Justices Scalia concurs, with Justice Thomas, to say Flast should be overruled altogether, and not just costrained. Scalia is pulling on one side, and Kagan on the other, and Kennedy maintains his purchase on the center.

The "very effective way" Elena Kagan was told "you’re part of the community, you’re part of the institution."

The new Supreme Court Justice describes the tour of the Court she got from Chief Justice John Roberts, beginning with the robing room:

She noted each wooden locker, including that of Justice John Paul Stevens, had a plaque displaying the name of the individual justice. By the time the 15 minute tour was completed Roberts brought Kagan back to the robbing room and Stevens’ nameplate had been replaced with her own.

ADDED: From the same interview (which will be on C-SPAN this Sunday):



AND: Meade points out the misspelling in the quote above: "robbing room." Ha. Reminds me of Woody Guthrie singing about Pretty Boy Floyd:

Well, as through this world I've rambled
I've seen lots of funny men.
Some will rob you with a six-gun
And some with a fountain pen.

And Bob Dylan picked it up:

Now, a very great man once said
That some people rob you with a fountain pen
It didn’t take too long to find out
Just what he was talkin’ about
A lot of people don’t have much food on their table
But they got a lot of forks ’n’ knives
And they gotta cut somethin’

The Supreme Court leaves Don't Ask Don't Tell in place — with Kagan not participating.

The 9th Circuit stay on the order ending DADT will keep the policy in effect pending appeal. There were no dissenting opinions, and, most interestingly Justice Kagan did not participate:

While it was not a surprise that Justice Kagan had opted not to take part in the order, that was nevertheless a significant development.  It raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it; that is always a risk when only eight Justices are taking part and the issue is a deeply controversial one.  Should the Ninth Circuit Court upheld [sic] the policy, that result would simply be affirmed; without an opinion, if the Justices were actually to divide 4-4 in reaction to it....

If it should turn out that Congress does not repeal the policy, despite the requests by President Obama and some of the Pentagon’s top civilian and uniformed officers, the constitutional challenge in the Log Cabin Republicans’ case would be the only potential way to end the policy, at least for several more years.

If the government gives tax credits for donations that may go to religion, is that essentially the same as government spending on religion?

Lyle Denniston reports on the oral argument today in Arizona Christian School Tuition Organization v. Winn. This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. Denniston begins his description with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.

This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state.

The lawyer defending the Arizona program said it was like tax deductions. People take tax deductions for their contributions to religious organizations all the time. What's different about tax credits? The lawyer arguing against the program "said that the money that is involved in the Arizona program is money raised by a tax; without a tax, there would be no tax credit."

If we view the tax credit as coming from the state's money, amassed by taxing, then the taxpayers who brought the suit probably have standing. But does that also answer the Establishment Clause question? Private citizens decide whether to contribute to a fund and pick from the qualified funds, not all of which exclusively fund religious schools, and the children getting the grants are choosing which school they want to go to. So there are 2 levels of private choice. And the definition of the funds is neutral and not religion-based.

Here's the complete transcript of today's argument.

UPDATE, April 4, 2011: The Supreme Court held that the plaintiffs lack standing.