The Obama administration's brief in the Supreme Court's DOMA case.

Lyle Denniston summarizes the briefs filed yesterday in United States v.Windsor — the case attacking the federal law that excludes same-sex couples, married under state law, from being treated as married for the purposes of federal benefits and tax laws.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians.  Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.”  And Friday’s brief defended that approach energetically.



This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court.  The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard.  “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.”  While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”

More detail about the argument for heightened scrutiny at the link, and you can read the whole brief here (PDF).

There's a second pending Supreme Court case dealing with California's Proposition 8, and although the administration hasn't filed a brief in that case, the brief Windsor refers to Prop 8 as it makes the argument for heightening scrutiny, which — under standard equal protection doctrine — looks at a number of factors including whether a group has been excluded from political power.  From the brief:

Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action....

[There is no] convincing record of political power rendering protection unnecessary.

The brief cites various recent successful political efforts against same-sex marriage, including this footnoted reference to Prop 8:

By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage.... In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.

My guess is the Court won't heighten scrutiny, but it will find an equal protection violation in both of the cases. I predict a 6-3 decision.

Speaking of being called to a higher law and speaking of speaking....

In the previous post, we're talking about what Jesus wrote in the sand and what he said out loud, in the New Testament story where the scribes and Pharisees present Jesus with the question of what to do with a woman who was caught in the act of adultery. In the Gospel text, we're told Jesus that wrote on the ground, but not what he wrote, and we're told that he subsequently spoke and said "Let him who is without sin among you be the first to throw a stone at her."

I'm putting up a separate post because I found the scene that sydney said he loved in the movie "The King of Kings." Made in 1927, it's a silent movie, so no one is saying anything out loud. We see what Jesus says written out on the intertitles, and we also see what he writes in the sand.



Beautiful filmmaking, particularly as the sand-words, not written in Roman letters, transform into our English words, naming the sins that the men in the crowd realize they've committed, and that's why they all turn and walk away.

That's not an accurate depiction of what happens in the biblical text though. The movie shows a mob on the verge of stoning the woman and Jesus intervenes and announces his rule about casting the first stone. Only thereafter, does he write the names of the sins in the sand. But in the Bible story, there is no angry mob with stones in hand. There are scribes and Pharisees demanding that Jesus deliver a legal opinion. Jesus bends down and writes on the ground instead of answering the question.  Only after they persist does he stand up and pronounce his new rule, which causes the scribes and Pharisees to walk away — "beginning with the older ones." The movie would have you see the members of the mob acknowledging their sins and their consequent lack of qualification to cast the first stone. But the text has intellectuals trying to box Jesus in on a question of law, and Jesus getting the better of a conversation he didn't want to have in the first place.

It's not surprising that a movie plays up the visible drama, and it's also not surprising that when I — a law professor — read the text, I see something akin to a law school class. The professors try to stump the student and the student transcends their tricky game. To me, the part where Jesus bends over and writes in the sand is like what happens in a law school class when the lawprof poses a difficult hypothetical and the students bend their heads down and go through motions of writing. They don't want to answer. It's not that they're writing something magically revelatory and startling. But if the lawprof keeps pushing and calls on someone, an answer will be spoken out loud.

I guess the law-professorly interpretation of the text isn't terribly cinematic. It's no wonder the movies present an angry mob with stones in hand and Jesus miraculously knowing and changing the hearts of the sinners. (And the adulteress is an actress evincing exactly the form of sexiness that was fashionable in the year the movie was made. I love the eyeliner!)

But to me the lawprof interpretation is thrilling and dramatic. The professors think they've got the upper hand. They know the legal text and it's tough. And then the brilliant student who will soon be the greatest professor of all gets on top of the dialogue and says something they must accept as correct: If you're going to have strict rules and severe mechanisms of enforcement, you must apply them equally to everyone. This is the structural safeguard of equal protection of the laws that is the necessary component of a democratic system. If there can't be exceptions and special treatment for preferred people, legislatures will resist imposing harsh rules and painful punishments.

In this context, let me give you my favorite Justice Scalia quote, which happens to include one of the key words of Christianity: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."

What did Jesus write in the sand? (Or: things I should have learned in church that I figured out from the Althouse comments.)

Yesterday, when many blogs were talking about the Islamist Facebook page with a cartoon showing how to stone a person who had committed adultery, I added the New Testament story, from John 8, in which Jesus said: "Let him who is without sin among you be the first to throw a stone at her." Jesus had just been teaching some people, and the scribes and the Pharisees, looking for a way to trip him up — they wanted to bring charges against him — present Jesus with a woman who had been caught in the act of adultery and remind him that the Law of Moses commanded that she should be stoned. "So what do you say?" Instead of answering, Jesus bends over and writes in the dirt. They keep pushing for an answer, and it's only then that he says: "Let him who is without sin among you be the first to throw a stone at her."

I didn't include the next few sentences, but the story was very familiar. After Jesus makes his brilliant remark — which finds a new way into the question — the crowd disperses and Jesus tells the woman to "go and... sin no more."

Some of the commenters focused on what it was that Jesus wrote on the ground. I'd always assumed that what Jesus was writing was irrelevant and that he was simply gesturing I'm not going to talk to you. He invoked his right to remain silent, as we say in the United States of America. He knew whatever he said would be used against him. Later, when he arrives at the New Testament doctrine — the higher law — he speaks up and articulates it pithily. He doesn't write it. Jesus isn't the put-it-in-writing type. The scribes are the bad guys here, and he's about talking to the people. The Word is spoken. (It's only written down later.)

But, reading the comments, I see interest in the subject of what Jesus wrote.

Sydney says: "In the movie The King of Kings, each accuser comes up to Jesus and sees written in the dirt his own sin, and turns and walks away. I love that scene." Is that the standard theory of what Jesus wrote?

And Chip Ahoy, linking here, says: "But what did he write in the sand?" At the link, we get added details from The Urantia Book (which I'd never heard of). There, the idea is that Jesus knew the woman's husband was a "troublemaker" and "perceived" that he'd forced the woman into prostitution and that the husband was now cooperating with the Pharisees to get Jesus to say something that could be used to arrest him. In this version of the story, Jesus doesn't just bend over and write in the dirt right where he is. He walks over to the troublemaker husband and writes something in front of him that makes him rush off. Jesus comes back to his original place and writes on the ground again, and the men, "one by one," leave. Last to go, is "the woman's companion in evil," who gets his own special message written in the dirt.

Kentuckyliz gives us the Old Testament quotes (the law of Moses, which is what the Pharisees threw at Jesus to trip him up):

Deuteronomy 22:22 "If a man is found sleeping with another man's wife, both the man who slept with her and the woman must die."

Leviticus 20:10 "If a man commits adultery with another man's wife — with the wife of his neighbor — both the adulterer and the adulteress must be put to death."

Kentuckyliz adds:

What's interesting about the Jesus scene, is that the law had become misogynistic in practice. The man is not being stoned according to the mandates of the law. In fact, I suspect he was standing in the crowd holding a stone.

Note that even in the extremely concise story told in John 8, we hear that the woman was "caught in the act." Whether he was in the crowd or not, the adulterer was known. Why aren't the authorities proposing to stone both the man and the woman? Kentuckyliz doesn't refer to what Jesus wrote in the sand, but this made me imagine that Jesus wrote "the man and the woman." And if the woman was a prostitute, all of the men who had ever slept with her would deserve stoning too.

In this scenario, Jesus acknowledges the written law of Moses by writing it. That's the Old Testament, which Jesus won't reject, even as his enemies are trying to lure him into rejecting it. He's showing that he knows the law, and in very few words, he's made it obvious to the legal experts that they are getting the law wrong and making them see their own faint-heartedness about equal justice, applying the strict law strictly on its written terms and to everyone. Then Jesus speaks, and the spoken word is the New Testament, calling us to a higher place, above the strict rules, under which we are all sinners. The New Testament demands that we look at our own sins. Go and sin no more.

That ought to keep you busy for the rest of your life. Now, leave other people alone.

ADDED: A second post includes the "King of Kings" clip and more.

"If we consider this to be a civil right, and I do, I don’t think civil rights ought to be left up to a state-by-state approach."

"I think we should have a national policy on this."

Here comes the pull from the left on same-sex marriage. That's James Clyburn, who ranks 3rd among Democrats in the House.

Marriage is actually unusually hard to handle at the state level — which was why Congress passed the Defense of Marriage Act. If any state permits same-sex marriage, couples who want to marry can travel to that state. Are you going to allow individual states to decide whether to recognize that marriage? DOMA was a decision to say yes, but Obama has said he believes DOMA to be unconstitutional, and he withdrew from defending it in court. Presumably, in appointing federal judges, he hopes to find individuals who share that legal opinion. And the federal government uses marriage status for many purposes. It must either accept the same-sex marriages from the states or not.

So the federalism solution really doesn't work. I know I said — just this morning — that "Leave it to the states is a fine — truly excellent — way to package the issue and set it to the side." It's not as though I'm not aware of the legal problem. I teach the topic in law school classes frequently. It's only that I think the issue can be politically packaged that way. But I must acknowledge that a truly probing questioner would succeed in opening that package back up, and Clyburn is encouraging that inquiry.

This week, Paul Clement argues that a federal statute is constitutional.

After last week's superb performance attacking the constitutionality of the Affordable Care Act in the Supreme Court, former Solicitor General Paul Clement was in federal court — the 1st Circuit Court of Appeals — yesterday, defending the constitutionality of the Defense of Marriage Act.

There are 2 cases on appeal:

In the case brought by Martha Coakley, the Massachusetts attorney general, [Feder District] Judge Tauro found in 2010 that DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to federal benefits. In that case, Judge Tauro agreed in 2010 that the law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

On the equal protection ground, Clement argued that Congress's legitimate interest was to have "a uniform definition" of marriage rather than to use state law, which varied from state to state (even though marriage laws have always varies from state to state, and Congress otherwise relies on state law to determine who counts as married for federal purposes).

Maura Healey, the assistant attorney general who argued on behalf of Ms. Coakley, told the panel that DOMA requires Massachusetts “to live with two distinct and unequal forms of marriage.” She added, “This is a burden that Congress has imposed on Massachusetts simply because it doesn’t like the fact that gay people are getting married.”

Stuart F. Delery, the Justice Department’s acting assistant attorney general for the civil division, also argued before the panel, saying that the court should hold DOMA to heightened scrutiny because it targets “a group with a long and deep history of discrimination.”

Here's the recorded argument, which I have not yet listened to.

Isn't it wonderful that we have this opportunity to examine what we've been saying for the past week about the role of the judiciary and deference to democratic decisionmaking? I assume many people who want the ACA upheld want DOMA stricken down, and many who want to keep DOMA want ACA crushed. So have at it. And please be consistent.

As a law professor, it's easy for me to argue any of the 4 possibilities, so I'll let you start the conversation. First, a survey:

DOMA and the ACA...
	Both are constitutional.
	Both are unconstitutional.
	DOMA is constitutional but the ACA is not.
	The ACA is constitutional but DOMA is not.
	I haven't done the legal analysis to know.
	The answer is whatever the highest court says in the end.
pollcode.com free polls

Explain your answers in the comments.

Lawsuit seeks equal immigration treatment for same-sex couples.

The NYT headline is "Noncitizens Sue Over U.S. Gay Marriage Ban," but both the citizen and the noncitizen are parties to the suits, and I think it's obvious that the claim of the citizen spouse is stronger. Why is one married American citizen treated differently from another married American citizen with respect to the ease with which her/his spouse can obtain legal residence in the United States?

Under [the Defense of Marriage Act], federal authorities do not recognize same-sex marriages, even from states that allow them. In recent years, as same-sex marriage became legal in several states, gay and lesbian couples have come forward to say they were facing a painful choice: either deportation for the immigrant or exile to life in a foreign country for the American.

“I’m a citizen of this country just like anybody else,” said Heather Morgan, 36, a plaintiff in the lawsuit together with her spouse, María del Mar Verdugo Yañez, 42, who is from Spain. After a 13-year friendship that evolved into a romance, the couple was married in August 2011 in New York City, where they live.

What a lovely couple they've chosen as the face of this lawsuit! I'm absolutely unsurprised that the NYT features the attractive female same-sex couple rather than males.

Here's where it's really going to matter that Samuel Alito has replaced Sandra Day O'Connor.

The Supreme Court just granted cert. in an affirmative action case:

The U.S. Supreme Court today agreed to consider whether the University of Texas at Austin has the right to consider race and ethnicity in admissions decisions. Those bringing the case hope the Supreme Court will restrict or even eliminate the right of colleges to consider race in admissions – a prerogative last affirmed by the Supreme Court in 2003 in a case involving the University of Michigan’s law school.

O'Connor was the 5th vote — joining 4 liberal Justices — to accept the use of race as a factor in admissions.

"[Y]ou have to have a government that both encourages marriage and also supplies wage subsidies to men to make them marriageable."

"If you believe in the centrality of family..."

What?!

"National Merit has never been transparent about, for example, the ethnic diversity of the people who receive National Merit scholarships."

Said William Fitzsimmons, the admissions dean at Harvard, quoted in an article that reports that NYU — like at least 8 other schools — has withdrawn from the National Merit scholarship program, which distributes money based on PSAT scores.

“National Merit has developed a kind of grandeur that is misguided,” said Lawrence Momo, director of college counseling at the private Trinity School... “The mythology that has been created about it in the public imagination is overblown.”

Dropping out of this test-based merit system because of racial/ethic disparities — assuming that's what's going on here — is distinctly different from adopting an affirmative action program to correct for disparities caused by the use of test scores in admissions.

In the Supreme Court case Grutter v. Bollinger, which approved of the University of Michigan Law School's use of race as a "plus factor" in admissions, Justice Clarence Thomas, in dissent, blamed the law school for creating the disparity itself by relying on the standardized test:

[N]o modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body... The Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test....

Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination....

Ending reliance on a standardized test is exactly the solution Clarence Thomas suggested. It does not classify individuals by race or ethnicity.

WI Assemblyman Mark Pocan confronts CEO president Roger Clegg, calling him "some guy" who "came all the way from Virginia" to tell us what "all us flyover country folk don't know."

I've already blogged a few times about the report of the Center for Equal Opportunity — here, here, and here — but what happened today was a hearing at the state Capitol before the Assembly Committee on Colleges and Universities. Clegg was invited to explain the Center's report, which accused the University of Wisconsin undergrad program and law school of violating the Equal Protection Clause of the U.S. Constitution through our use of race as a factor in the admissions process.

Mark Pocan, a Democratic Assemblyman who represents much of Madison, lit into Clegg, as you can see in this clip, shot by Meade. Pocan is saying the report lacks detail on student transfers and academic performance, then yells at Clegg for being "some guy" who has flown in "to pontificate at the importance you brought from the east coast to us." Clegg is a very mild mannered advocate, so the contrast between the 2 men is pretty rich:



Here's the Wisconsin State Journal report on the hearing:

"There is overwhelming evidence that the University of Wisconsin in engaging in racial and ethnic discrimination, and it should stop," Clegg told the committee during a tense hearing. "In a country like ours, the only system that will work is one that plays no racial favorites. Anything else is a recipe for disaster — for division, strife and balkanization."

Paul DeLuca Jr., UW-Madison provost and vice chancellor for academic affairs, stressed that academic performance remains the key factor in admissions. At the same time, though, the school wants to build a diverse student body.

He pointed out that Republican Attorney General J.B. Van Hollen issued a 2007 opinion that found the school's admissions approach complied with a 2003 U.S. Supreme Court ruling that race can be one of many admission considerations. He also pointed out that only 14 percent of UW-Madison students are minorities....

Whether the University complies with the standard laid down in the Supreme Court case law is, of course, crucial, but the state legislature has the power to impose a stricter standard on the University (if it thinks that's a good idea). In addition, it's possible that the CEO plans to use this case to get affirmative action back into the Supreme Court with the hope of changing the legal doctrine.

"Did UW-Madison's diversity chief incite students?"

Deborah Ziff asks:

Talk show host Bill O'Reilly called him "a loon." The head of a conservative think tank said he fed students propaganda and egged on a student "mob."

The comments were directed at UW-Madison's chief diversity officer, Damon Williams, who has been at the center of an admissions maelstrom ever since the Virginia-based Center for Equal Opportunity alleged in a report this month that the university gives preferential treatment to black and Hispanic students.

Learning a day early that the center planned to release its findings at a Madison news conference, Williams and Dean of Students Lori Berquam convened a meeting of students to discuss "a threat to our diversity efforts." The next day, a group of students disrupted the news conference, forcing the center's president and a former UW-Madison professor to leave the room.

Read the whole thing. Who knows the causal connection between the meeting one day and the disruption the next? My point — and I'm quoted toward the end of this piece — is that the University should not act scared about this. It should not concede that the CEO's activity is a threat. Presumably, the admissions policies are aligned with the case law and within the range permitted under the Equal Protection Clause. Why stir up negative emotion and anxiety?

The appropriate attitude is confidence and pride, demonstrating a belief in the chosen policy. The organization that has attacked us is serious and hardworking. It's not a random swipe at us that deserves no attention. We should respond in a way that suits a public university and have a reasonable, vigorous debate, including a conversation with the people of the state. The people have the power to trump the University's policy choice by legislation, so simple political sense ought to make us want to make a good argument aimed at them. But quite apart from political pragmatism, we should, as a matter of principle, show that we care about the citizens of Wisconsin who were excluded in the admissions process. As a university, we should take advantage of what is an opportunity to teach and to demonstrate a love for debate and weighing diverse viewpoints.

I mean, diversity is supposed to be the central value. And — here's a lesson in what the Supreme Court has said the Equal Protection Clause means — the diversity that justifies the use of racial classification "is defined by reference to the educational benefits that diversity is designed to produce."

The reason the Court has allowed some flexibility to use race in admissions is that it supposedly connects to the University's educational mission. If that connection is real, it ought to show.

6th Circuit says Michigan's ban on affirmative action violates Equal Protection.

"The court’s 2-to-1 ruling, which is likely to be appealed, said the voter-approved ban 'unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.'"

Here's the opinion (PDF). Excerpt:

[Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), and Hunter v. Erickson, 393 U.S. 385 (1969),] expounded the rule that an enactment deprives minority groups of equal protection of the laws when it: (1) has a racial focus, targeting a goal or program that “inures primarily to the benefit of the minority”; and (2) works a reallocation of political power or reordering of the decisionmaking process that places “special burdens” on a minority group’s ability to achieve its goals through that process...

Proposal 2, like Initiative 350, has a “racial focus,” because the Michigan universities’ affirmative-action programs “inure[] primarily to the benefit of the minority, and [are] designed for that purpose,” for the reasons articulated by the Court in Seattle. Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities’ representation at many public schools, race-conscious admissions policies increase racial minorities’ representation at institutions of higher education, see, e.g., Grutter, 539 U.S. at 316, 328-33 (describing the University of Michigan Law School’s minority-student-enrollment aims); Gratz, 539 U.S. at 253-56 (describing admissions policies at the University of Michigan regarding underrepresented minority groups).

I thought the "diversity" interest counted as compelling in Grutter was for the educational benefit of all of the students in the classroom. Under Grutter and Gratz, an interest in benefiting the minority would not support the state's choice to have affirmative action, so how can it work as the basis for saying that the state can't choose not to have it? The Seattle and Hunter cases are a bit strange, and I would not be surprised if the Supreme Court took this case and not only reversed but reframed the doctrine.

What will the unions do now?

Probing into the unions' strategy here in Wisconsin, the Milwaukee Journal Sentinel only comes up with 2 things:

1. The recall elections. The article mentions the "so-called in-kind work" which "gives union members the ability to go door-to-door lobbying to defeat Republican senators facing recall." Gives union members the ability...? You mean allows unions to pay people to do door-to-door work. [ADDED: That sentence should end in a question mark. I really don't understand whether the members are paid to perform this "in-kind work" for candidates. Are they volunteers?] If you're in a recall district, steel yourself for paid [?] union activists coming to your door. Or maybe you already have the homeowner policy that I have: I don't answer the door unless I know who's there and want to see them. By the way, how many of the protesters in February and March were paid by the unions?

2. The federal court lawsuit challenging the collective bargaining legislation on equal protection grounds, the absurdly weak theory being that the state can't treat different categories of its own employees differently.

Walker's bill exempted firefighters and police officers, as well as some transit workers, from the legislation. The unions say, at least in the cases of the police and firefighters, that was political payback for their support of Walker in the gubernatorial election.

Imagine courts striking down legislation on the ground that the political majority drew lines that seemed to favor its supporters! The unions also contend that free speech rights require the state to submit to collective bargaining with its employees. Here's a clue: The First Amendment protects us from compelled speech. It doesn't require it!

So that's it for the unions' strategy. How many people reading the linked article are fooled by all the bluster? The strategy is pitifully weak!

The unions suffered a crushing defeat, and the only way back — not mentioned in the article — is to regain the legislature and the governorship in future regular elections. That's a long time line, and it will give the people of the state a chance to see if the Republicans' budget fix worked.

At this point in the protracted budget battle of 2011, the people of Wisconsin deserve that information before we plunge into another big change. If the unions look too desperate grasping at strategic moves like #1 and #2, above, then Wisconsinites ought to suspect that they are afraid to let us see how good the new policy really is.

The Blutarsky/Feingold Philosophy.

John Belushi as Blutarski in "Animal House":



Russ Feingold at the Wisconsin Capitol last Sunday:



And a few weeks ago, here at the Capitol:



"It's not over until we say it's over." That's the political theory. Meanwhile....

Unions representing public workers in Wisconsin filed a lawsuit in federal court on Wednesday to block the state's new curbs on collective bargaining... [claiming] the controversial measure is unconstitutional because it creates two classes of public workers in the state -- those covered by the new rules and those exempt from them.

What? Treating police differently from teachers is supposed to be an invidious discrimination under the Equal Protection Clause?! There's no suspect or quasi-suspect classification, so the courts will give this minimal scrutiny. How is this anything but a frivolous lawsuit?

Blutarsky/Feingold marches on.

NOTE: The "Animal House" epilogue tells us what ultimately happens to each character, and the biggest joke is that Blutarsky becomes a U.S. Senator! (Thanks to Bruce Hayden, in the comments, for reminding me of that.)

US News Weighs Request to Add the Most Freakishly Manipulable Measure to Law School Rankings.

Weigh well, o wise ones, ye who determine the hierarchy of legal academia. 

ADDED: Under the equal protection case law, we'll need to say our race discrimination is narrowly tailored to serve a compelling state interest. Surely, maintaining our U.S. News rank is compelling, right?

The State Bar of California urges U.S. News to factor racial diversity into its law school rankings — counting for 15% of the score.

Oh, lord, can you imagine the new dimension this would add to gaming the rankings? But

"The deans care dearly about where they rank," said Craig Holden, a partner at Lewis Brisbois Bisgaard & Smith and the chairman of the council, which is spearheading the proposal. "The rankings are a real driver for change — everybody recognizes that — and when you make diversity a sidebar rather a component of the rankings, you're sidelining the issue."

A real driver for change... as if law schools don't already strive for racial diversity!

Making diversity a factor in the rankings would create a solid incentive for law school administrators to bolster their diversity efforts, Holden said...

Diversity for the sake of U.S. News Rankings? I don't remember Grutter v. Bollinger accepting racial decision-making for the purpose of climbing in the U.S. News rankings.

Somehow Scalia gets people talking about him again...

... by saying the same thing he always does.

HuffPo headlines: "Women Don't Have Constitutional Protection Against Discrimination." The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: "That would seem to include protection against exactly the kind of discrimination to which Scalia referred." Thanks for the analysis, Amanda.

Terkel also called up Marcia Greenberger, founder and co-president of the National Women's Law Center, who professed to find Scalia's opinion "shocking" — even though he's been saying it for at least 15 years.

ADDED: Here's the interview with Scalia. From this lawprof's perspective, the most interesting thing he says is about pizza:

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?

I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it's not pizza. It's very good, but ... call it tomato pie or something. ... I'm a traditionalist, what can I tell you?

He's applying his legalistic language fussiness to food, but then what's with "infinitely"? What happened to verbal precision all of a sudden? He's gushing like... a girl.

Justice Stephen Breyer on "Fox News Sunday."

Watch here. Chris Wallace does a great job of needling him about things Breyer's written about constitutional interpretation and, Breyer, as I'd expect, rises to the occasion. Breyer literally waves the Constitution around, in tiny booklet form, and figuratively waves around a bigger book, his book "Making Our Democracy Work."

Now, let's rummage through the transcript. Chris Wallace questions him about "just applying the law as written," and Breyer plugs in the expected elementary lesson about the concision of the phrases in the Constitution and the need to apply them in the changed circumstances of the modern world (airplanes! the internet!), and then Wallace displays the text of the 2d Amendment:

WALLACE: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms" -- the right of the people to keep and bear arms -- "shall not be infringed." Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago. You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.

Breyer, of course, is ready for this:

BREYER: Yes. Yes. That's a wonderful example because, of course, it's not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."  What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, "I've got to get this document ratified," was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.

There's some talk about judges acting like judges and how history can't answer some of the details. How do the old words and the old intent apply to new things? Breyer lists machine guns and torpedoes, and then, deviously, handguns. Wallace responds:

WALLACE: I understand. But it certainly didn't provide for a ban, at least that's what the court's decision was, your court's -- it didn't provide for a ban on all handguns as they have here in Washington, D.C.

BREYER: Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have...

WALLACE: But -- but it's...

BREYER: ... a gun.

WALLACE: ... but that's a policy issue. That's not a constitutional issue.

Breyer chooses not to jump on this point, perhaps because he'd have to say things that conservatives say. He'd have to promote federalism. Let me sketch it out.

If there isn't a right covering this particular subject, then state and local government will be able to legislate the policies that they, as a community, think are best. Yes, it's a policy issue, and — Breyer would say, if he'd gone on — that's why it's appropriate for legislative bodies to make decisions about it. If you don't like those decisions, the great thing about the United States is that you can move around and go to places that have policy preferences that suit your tastes. You have a right to travel and a right to change your residence to another state. And you also have the right to participate in politics, so there's also the alternative of trying to get the law in your state or city changed, so that handguns are not banned. Breyer's approach to the Second Amendment lets the people make the gun control laws what they want them to be and, when they do, they won't get caught up in litigation over the choices they make.

This is what conservatives say all the time about abortion and the separation of church and state (to cite the 2 most glaring examples). But here's Right Wing News — Chris Wysocki — excoriating Breyer for saying "get on the subway and go to Maryland."

Mind-boggling really, isn't it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!

Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right.

But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do. But think of something else, where you think the Court is wrong about saying there's a right — perhaps, for you, abortion — and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?


Wysocki continues:

So mister, what if you are in a wheelchair? This doctor's office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!

Whoa! You think the Constitution obliges private citizens, like doctors, to make their buildings wheelchair accessible?! That's so left-wing! Check your blog's name! What's the "Right Wing News" today, that righties have gone all lefty? That would be news!

***

(I have some more things to say about the Breyer interview, but I'll start a new post for that.)

CORRECTION: Sorry, I had "Chris Matthews" in the first sentence of this post. It's Chris Wallace.

I talk about the appellate argument in the Prop 8 case with Emily Bazelon.

The argument in the 9th Circuit Court of Appeals took place yesterday, and Emily and I gabbed about it this morning for Bloggingheads.

The oral argument in the 9th Circuit in the Prop 8 case is about to begin.

The case is Perry v. Schwarzenegger. You can watch live on C-SPAN. I'll update with comments soon.

UPDATE: You can read some details about the case here. I'll have some of my own impressions in a little while.

UPDATE 2: You can watch the whole oral argument here. The first hour of the argument dealt with the threshold question of standing. California Governor Schwarzenegger and Attorney General Jerry Brown were the original defendants in the case, and they have opted not to appeal. Proponents of Prop 8 (which banned same-sex marriage) need a way to intervene using some other party with a personal stake in the outcome or the decision of the district judge, finding Prop 8 unconstitutional, will be the final word on the subject.

It seems as though there should be appellate review, but the constitutional limits on federal court jurisdiction don't depend on how important it is for an issue to be heard. There are technical requirements, and it seems as though the plaintiffs' lawyers did a clever job of setting things up so a district court decision in their favor would be insulated from appellate review. But listening to the oral argument, I got the impression the judges thought it was too clever.

In the second hour, the substantive question boiled down to whether there was a rational basis for excluding gay people from marriage. The pro-Prop 8 side rested heavily on the fact that only heterosexual couples produce babies accidentally. But that has so little to do with the value of excluding gay people from the status of marriage. It's hard even to understand why reserving marriage to heterosexuals would make them do a better job of deploying their reproductive powers. Why should gay people, who aren't even the problem, bear the burden?