"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.

When Roe v. Wade came out, Justice Ginsburg believed the motivation behind it was fighting overpopulation.

Emily Bazelon gets clarification directly from the Justice about a remark she made in 2009 that seemed perhaps to favor abortion for population control. Justice Ginsburg reframed her point this way:

“I was surprised that the court went as far as it did in Roe v. Wade, and I did think that with the Medicaid reimbursement cases down the road that perhaps the court was thinking it did want more women to have access to reproductive choice. At the time, there was a concern about too many people inhabiting our planet. There was an organization called Zero Population Growth.... In the press, there were articles about the danger of crowding our planet. So there was at the time of Roe v. Wade considerable concern about overpopulation.”

That is, she intuited the Court's motivation, which she says she was wrong about — as she observed in the old remark and repeats now — because the Supreme Court later, in 1980, upheld the political decision to exclude Medicaid funding for abortion, in Harris v. McRae. Ginsburg's 2009 quote was:

[Roe v. Wade] surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.

These remarks conflate the Supreme Court and Congress. It could have been that concern about overpopulation motivated the Court in Roe, as it pushed back the states' power to ban abortion and put abortion in a relatively positive light as something women had a right to do. That created the political space within which Congress might have opted to fund abortions for poor women. All that happened in Harris v. McRae was acceptance of the political reality that did ensue, the decision not to pay for abortions. The Supreme Court failed to predict the political fallout from Roe. The Court could still, at the time of Roe, have believed that it was enabling Congress to undertake population-control policy. When Harris v. McRae arose, the Court had new information and a new question to answer. It declined to extend Roe to mean that Congress was obligated to fund abortions as part of Medicaid.

Bazelon blithely concludes:

The history lesson is this: There was a feminist women’s rights argument for legal abortion in the 1970s, which the Supreme Court accepted in Roe v. Wade. And there was a separate and distinct argument about preventing population growth by being pro-abortion, made by groups like Zero Population Growth, which the court did not accept, not in Roe and not later.

The women's rights argument is presentable and defensible. Abortion for population control was and is too ugly — and too close to racism — for comfort. What is uncomfortable is suppressed. In that sense the denial is admirable. But Bazelon's instruction on the "history lesson" is too pat and too sanitized to be taken uncritically.

"A second Obama term could kill the Second Amendment."

Says James Taranto, inviting Obamans to make gun control a big campaign issue. The Supreme Court's recent cases finding an individual right to bear arms were decided by a 5-man majority, 2 of whom (Antonin Scalia and Anthony Kennedy) are in their late 70s. Ruth Bader Ginsburg (who's 79) and Stephen Breyer (who's 73) dissented. We don't know whether any (or all!) of them will leave the Court in the next 4 years or whether the Court will revisit its Second Amendment jurisprudence, but the point is, if gun control becomes an issue, those who care about gun rights might be induced to get quite excited over Supreme Court appointments.

Now, it's my perception that the gun control issue has already played out. There had to be that clamor that we heard over the weekend, but it was a clamor without legs.

Their coats were brushed, their faces washed,

Their shoes were clean and neat —

And this was odd, because, you know,

They hadn't any feet.

Chief Justice Roberts writes an opinion limiting the commerce power and the spending power.

This is an important opinion about federalism and the scope of Congress's enumerated powers. Even as the individual mandate was upheld under taxing power — and Roberts wrote about the expansiveness of that power — we have an opinion that limiting those other 2 powers. I want to begin to talk about the Chief Justice's contribution to constitutional law as he writes about these 2 powers.

Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

What I want to do first, now that I have my hands on the opinion, is analyze the Commerce Clause doctrine.

ADDED: The Commerce Clause discussion is in Section III-A of the Chief Justice's opinion:

The guaranteed-issue and community-rating reforms do not... address the issue of healthy individuals who choose not to purchase insurance to cover potential health care needs. In fact, the reforms sharply exacerbate that problem, by providing an incentive for individuals to delay purchasing health insurance until they become sick, relying on the promise of guaranteed and affordable coverage. The reforms also threaten to impose massive new costs on insurers, who are required to accept unhealthy individuals but prohibited from charging them rates necessary to pay for their coverage. This will lead insurers to significantly increase premiums on everyone. See Brief for America’s Health Insurance Plans et al. as Amici Curiae in No. 11–393 etc. 8–9.

The individual mandate was Congress’s solution to these problems. By requiring that individuals purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premiums on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept....

But in fact, as we shall see in the taxing power discussion, these healthy individuals won't have to buy insurance, because they can simply opt to pay the penalty, which they rationally will do because it costs less. And this money goes to the government — it's tax revenue — and not to the insurance companies, who now have those massive new costs.

The Government contends that the individual mandate is within Congress’s power because the failure to purchase insurance “has a substantial and deleterious effect on interstate commerce” by creating the cost-shifting problem. Brief for United States 34. The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549–559 (1995), but it is now well established that Congress has broad authority under the Clause...

Roberts deals with the existing doctrine, which is, he says, "expansive." But this is different, because never before has Congress tried to use it it "to compel individuals not engaged in commerce to purchase an unwanted product."

The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated...

And all the cases finding commerce power refer to some activity that is regulated. This is taking those who are inactive and forcing them to become active.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

It's beyond Wickard v. Filburn because "[t]he farmer in Wickard was at least actively engaged in the production of wheat." Roberts brings up the famous "broccoli" hypothetical: The government might try to force to "buy vegetables." (Later he specifies "broccoli," so broccoli lives on as the hypothetical vegetable in constitutional law.)

Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers....

That strikes me as odd, because it seems that the economists' idea is what is practical, while the action/inaction distinction seems more philosophical.

Next, there's the idea — pushed by the government — that everyone is already somehow “active in the market for health care” even when the use of health care services lies in the future. Eventually, they are going to participate in this market, and what Congress did was regulate their payment for these services they are consuming now or in the future. Roberts sticks to what people are doing currently, as he makes his action/inaction distinction matter. And this is a practical, economic matter, because the point of the mandate is to drag these healthy people into the pool so insurance companies can get premiums from people who don't take out more than they put in. These people are targeted precisely because they are inactive:

It is precisely because these individuals, as an actuarial class, incur relatively low health care costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect.... If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.

Note that as Roberts explains why these people can't be regulated, he's also explaining why the health insurance companies are doomed. (But, you may think, isn't the mandate upheld under the taxing power? Again, what's upheld is the tax imposed for not buying insurance, and that's less expensive than buying insurance, and the money goes to the federal government, not to the insurance companies. Meanwhile — to make it crushingly clear — the insurance companies do have to sell insurance to people with pre-existing conditions. So these people who currently don't buy insurance because it's not worth it can start buying insurance as soon as it is worth it, and under the ACA, they can't be charged more than the people who have been buying insurance all along.)

MORE: To get the other 4 votes for the Commerce Clause position, we need to switch to the joine dissent, written by Justices Scalia, Kennedy, Thomas, and Alito. Scalia-Kennedy-Thomas-Alito track Roberts' activity/inactivity distinction, saying:

The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity....

The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005) .

Remember that Scalia surprised us by concurring in Raich — based on the Necessary and Proper Clause.

That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 15–22. Raich is no precedent for what Congress has done here. That case’s prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. 545 U. S., at 22....

With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance....

AND: Let's go back to the Chief Justice's opinion and to his discussion of the Necessary and Proper Clause. Once Congress decides to get into the immense project of dealing with health care and health insurance — an end that easily fits within the commerce power — why don't we accord it great latitude in determining which means to use to achieve that end? We've seen that Scalia-Kennedy-Thomas-Alito said there are other means, but the case law — notably McCulloch v. Maryland — says that Congress has its choice of means. In McCulloch, Chief Justice Marshall said that the Constitution "does not profess to enumerate the means by which the powers it confers may be executed," so "the ordinary means of execution" are implied. The chosen means doesn't have to be "absolutely necessary," and "narrow construction" would make the assigned work of government "impracticab[le]," which can't be what was intended. Marshall approves of means that are "appropriate" and "plainly adapted" to the enumerated ends, if they are — and here's the mystery phrase that Scalia-Kennedy-Thomas-Alito  quoted — "consist[ent] with the letter and spirit of the constitution."

Chief Justice Roberts says that the Court has been "very deferential to Congress’s determination that a regulation is 'necessary'" — but it still looks for consistency with — that phrase again — "the letter and spirit of the constitution." And Roberts essentially repeats his Commerce Clause argument here: It would allow Congress to regulate inactivity.

Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

What about Raich, then? Why was it "necessary" and "proper" to reach home-grown, home-consumed marijuana used by medical patients? Roberts says that "marijuana is a fungible commodity" and so there was potential for diversion into interstate market that could "substantially undercut" Congress's big scheme of banning marijuana (which clearly is a matter of regulating commerce). But regulating the health insurance industry is clearly a matter of regulating commerce, and the people who don't by health insurance are substantially undercutting the success of that big scheme. Here's where I thought the Court would have the most trouble, and I'm not seeing much elaboration of why this is different from Raich.

ALSO: Here's Justice Ginsburg, in dissent, talking about the Necessary and Proper Clause:

Without the individual mandate, Congress learned, guaranteed-issue and community-rating requirements would trigger an adverse-selection death-spiral in the health-insurance market: Insurance premiums would skyrocket, the number of uninsured would increase, and insurance companies would exit the market. 

Yes, as we saw above, the Chief Justice clearly recognized this problem. It's an economic disaster without the individual mandate. Why doesn't that make it necessary? I can see 2 answers: 1. It is necessary. It's just not proper. And 2: Since the ACA lets the uninsured avoid purchasing insurance if they pay a tax/penalty to the federal government, and since that's what healthy people will rationally do, the scheme was never set up to work. If it doesn't even work, it doesn't make sense to call it necessary.

But Ginsburg says the individual mandate is what makes it work, so — using Raich quotes — it's an “essential par[t] of a larger regulation of economic activity” without which “the regulatory scheme [w]ould be undercut.” This makes sense if you think it's not the proper place of the courts to look at a legislative solution and make a judgment about how well it's going to work, and, I note, neither Roberts nor Scalia-Kennedy-Thomas-Alito  relied on an independent judicial assessment of whether the individual mandate —with its big loophole (paying the tax) — would actually work to solve the problem it's supposed to resolve.

What Roberts and Scalia-Kennedy-Thomas-Alito did pay attention to was the "spirit of the constitution" and what is "proper." Ginsburg say that Roberts fails "to explain why the individual mandate threatens our constitutional order." He cites cases and claims this situation is different, but what is the doctrine?

How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction The Chief Justice, in effect, provides lower courts: You will know it when you see it.

You will know it when you see it — i.e. "I know it when I see it." Did you know "I know it when I see it" has its own Wikipedia article? You haven't given us a rule to apply, and so judges — in an inappropriately nonjudicial way — will be deciding things ad hoc.

AND: I'm going to start a new post to discuss the spending power.

ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.

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.)

For the first time, a Supreme Court opinion uses the word "feminist."

The case is Coleman v. Court of Appeals of Maryland, which came out this year on March 20th. There are 19 other Supreme Court opinions where the word "feminist/s" appears, but only in the name of an entity like "the Feminist Majority Foundation" or the "Feminists for Life of America" or (once) in the name of a cited law review article.

The article is "The Victim In a Forcible Rape Case; A Feminist View," cited for the proposition that "Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage," in the case that says it's cruel and unusual punishment to impose the death penalty for rape. Interesting, isn't it, that it took "A Feminist View" to see that "Rape is very often accompanied by physical injury"? Often? Accompanied? Rape is a physical injury! "Can also inflict mental and psychological damage"?! Can? Do you really have to hedge it?

Anyway, the actual use of the word "feminist" occurs in a dissenting opinion written by Justice Ginsburg. She is explaining why she thinks that Congress had power under §5 of the 14th amendment to enact the self-care provisions of the Family and Medical Leave Act of 1993. To fit the §5 doctrine, the law needs to be portrayed as some kind of remedy for a 14th Amendment rights violation, but both males and females use sick leave, and getting sick leave doesn't seem to be about alleviating unconstitutional sex discrimination.

But Ginsburg says the law had roots in a California effort to require pregnancy or childbirth leave to women:

The California law sharply divided women’s rights advocates. “Equal-treatment” feminists asserted it violated the Pregnancy Discrimination Act’s (PDA) commitment to treating pregnancy the same as other disabilities.... “Equal-opportunity” feminists disagreed, urging that the California law was consistent with the PDA because it remedied the discriminatory burden that inadequate leave policies placed on a woman’s right to procreate.

So the first time a Supreme Court Justice uses "feminist," she's talking about 2 types of feminists, the "'equal-treatment' feminists" and the "'equal-opportunity' feminists." Ginsburg refers to the debate between the 2 factions about whether gender-neutrality or special accommodations better served the interests of women. For example Prof. Eleanor Holmes Norton testified that if employers "provide something for women affected by pregnancy that they are not required to provide for other employees [it] gives fodder to those who seek to discriminate against women in employment."



By the way, the word "feminism" only appears in one Supreme Court opinion, and that was back in 1968, in a case called Ginsberg v. New York. (Ginsburg... Ginsberg... just a coincidence.) But the word appears only in quoted material in the appendix to a dissenting opinion by Justice Douglas (who didn't agree that the state could prosecute a man for selling a "girlie" magazine to a minor). Douglas quotes J. Rinaldo, "Psychoanalysis of the 'Reformer'":

In our own day we have reached another of those critical periods strikingly similar in its psychological symptoms and reactions, at least, to decadent Rome. We have the same development of extravagant religious cults, Spiritism, Dowieism, "The Purple Mother," all eagerly seized upon, filling the world with clamor and frenzy; the same mad seeking for pleasure, the same breaking and scattering of forms, the same orgy of gluttony and extravagance, the same crude emotionalism in art, letter and the theater, the same deformed and inverted sexual life.

Homo-sexualism may not be openly admitted, but the "sissy" and his red necktie are a familiar and easily understood property of popular jest and pantomime. It is all a mad jazz jumble of hysterical incongruities, dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures. Through it all runs the strident note of puritanism. As one grows so does the other. Neither seems to precede or follow.

Crazy stuff. Dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures....

Man, I need to do word searches in the Supreme Court opinions more often.

Dog dinners. I did not go looking for that.

"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.

Scott Walker is the first of Politico's "top unanswered questions for 2012."

Here's how they phrase it: "Can Democrats claim a scalp in Wisconsin?" (Why isn't "claim a scalp" politically incorrect by now?) The question is whether the Democrats can take down Scott Walker in a recall election. I'm predicting they can't. I think the more interesting question is: Will the Democrats' effort to oust Walker have repercussions in the fall elections to the ironic point where it is Wisconsin that tips the Senate and the presidency to the Republicans?

There are a bunch of other questions. 2 are about the Supreme Court: "Will the Supreme Court deliver for the GOP?" and "Will a liberal retire from the Supreme Court?" Again, Politico is obtuse. For example, it says: "If the court strikes down the controversial individual mandate, it would be a jolting setback for Obama just a few months before he’s up for reelection." But striking down the individual mandate would help Obama! How is it a setback? The unpopular law would be gone. Obama could claim it was a good thing and blame the bad old Supreme Court for being all "activist." If, on the other hand, the Court upholds the law, Obama will feel the full force of the opposition to it. And the spotlight will be on the liberal Supreme Court Justices who won't enforce limits on congressional power, which will leverage the GOP to say: Do you want Obama naming the successors to those terrible liberals Ruth Bader Ginsburg and Steven Breyer?

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.)

"Not everyone on the UW-Madison campus is a fan of the university's 'holistic' admissions policy."

"That's the gist of a strongly worded email I received over the weekend from UW-Madison physics professor Marshall Onellion," writes Cap Times reporter Todd Finkelmeyer, somewhat mischaracterizing Onellion's point. But the email is reprinted in full — we can read it — and Finkelmeyer spoke by phone to Onellion and includes a quote:

"I don't actually object to any admissions policy as long as I know what it is.... Right now, I don't believe you or I know what the UW admissions policy is. If [UW-Madison Interim Chancellor] David Ward says [the Center for Equal Opportunity's] report is wrong in some way, then tell us what is wrong and tell us what the actual facts are. And then you and I and everybody else can form our individual opinions about what we agree and disagree with. But right now, we don't know what the facts are."

A lack of transparency is, of course, inherent in the process of performing the "holistic" style of admissions that the U.S. Supreme Court found constitutional in Grutter v. Bollinger. That's what Justice Ginsburg complained about in dissent in the companion case, Gratz v. Bollinger, where the majority rejected an insufficiently holistic form of admissions:

The stain of generations of racial oppression is still visible in our society... and the determination to hasten its removal remains vital.  One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment–and the networks and opportunities thereby opened to minority graduates–whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers’ recommendations may emphasize who a student is as much as what he or she has accomplished.... If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.

Boldface added to make my point. The clarity the physics professor longs for is exactly what the Supreme Court's doctrine disincentivizes.

"Where is the 9,000-foot cow?"/"What do you think about Satan?"/"What did James Madison think about video games?"

Justice Ginsburg lists the strangest questions asked last term at oral argument.

"From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon."

Are you kidding? This is why it should be on television?

You know, the fabulous 7th Circuit judge Richard A. Posner wrote a great chapter titled "What Am I? A Potted Plant?"

And I just saw a potted plant on television.

Now, the potted plant was scintillating compared to the live — that is, barely animated — speech by President Obama that preceded it. But the point is: We want the Supreme Court on TV!

Bring on the 9,000 cows! We're dying out here in TV-land!

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

The Wal-Mart case was decided unanimously, but it was 5-4 in a very important way.

Permit me to explain what is a bit complicated. Under Federal Rule of Civil Procedure 23, which governs class action, there is a set of preliminary requirements in subsection (a) and then a list of 3 types of class actions in subsection (b). The class must meet all the requirements in (a) and then fit one of the categories in (b).  The Scalia opinion (joined by the Chief Justice and Kennedy, Thomas, and Alito) and the Ginsburg opinion (joined by Breyer, Sotomayor, and Kagan)  agree that the district court erred in putting the class into the second category in subsection (b), but only the Scalia majority also thought a preliminary requirement in 23(a) was not met. Since all class actions — in any of the (b) categories — must meet the requirements in (a), the Scalia opinion has a much more restrictive effect on class actions.

Let's focus on that disagreement. The proposed class included all current and former female employees of Wal-Mart, well over a million women. Rule 23(a) requires that all the members of the class share a common question of law or fact. Wal-Mart had a policy of decentralizing employment decisions to the store level, and the plaintiffs, attempting to satisfy 23(a), said that Wal-Mart has "a strong and uniform 'corporate culture' [that] permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers — thereby making every woman at the company the victim of one common discriminatory practice."

Is this policy of decentralizing decisionmaking a common question? Scalia called it "a policy against having uniform employment practices." There have been cases in which an "undisciplined system of subjective decisionmaking" has been held to violate Title VII (the federal statutory law about employment discrimination). But in the case of Wal-Mart, once the decisionmaking was decentralized to the store level, there would be differences from store to store in how that decisionmaking would be done. Even assuming there was an undisciplined system of subjective decisionmaking in every store, each  store would might have its own undisciplined system of subjective decisionmaking. To meet the Rule 23(a) requirement of a common question, Scalia wrote, there would need to be a "specific employment practice" that was applied to all the members of the class, not simply a policy that created the conditions for thousands of stores to devise specific employment practices. 

Ginsburg thought that Wal-Mart's delegation of discretion, "uncontrolled by formal standards, has long been known to have the potential to produce disparate effects."

Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes."...

Ginsburg tried to portray Scalia as importing a requirement that the common questions predominate over the individual questions. (That actually is a requirement in one of the subsection (b) categories.) But that's not what Scalia did. Scalia said that the decentralization move simply wasn't a question in the case and that the actual questions are specific to the store level and not to the entire class the plaintiffs attempted to define.

ADDED: After reading the case and trying to explain it as clearly as I could, I've been reading some of the press accounts, and... I can't say I'm surprised, but what politicized drivel!

"The Supreme Court on Monday blocked a massive sex discrimination lawsuit against Wal-Mart on behalf of women who work there."

WaPo reports:

The court ruled unanimously that the lawsuit against Wal-Mart Stores Inc. cannot proceed as a class action, reversing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. The lawsuit could have involved up to 1.6 million women, with Wal-Mart facing potentially billions of dollars in damages....

The justices divided 5-4 on another aspect of the ruling that could make it much harder to mount similar class-action discrimination lawsuits against large employers.

Justice Antonin Scalia’s opinion for the court’s conservative majority said there needs to be common elements tying together “literally millions of employment decisions at once.”

But Scalia said that in the lawsuit against the nation’s largest private employer, “That is entirely absent here.”

Justice Ruth Bader Ginsburg, writing for the court’s four liberal justices, said there was more than enough uniting the claims. “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores,” Ginsburg said.

I hope the GOP candidates for President are smart and articulate enough to use this case in their argument against electing the Democratic President to a second term.

ADDED: After the oral argument, back in March, I wrote:

I think plaintiffs are trying to say that if headquarters can see a pattern of women doing poorly under the decentralized discretion system, then keeping that system in place is a discriminatory policy. That absence of centralized control is the common issue that makes it an appropriate class action (rather than lot of individual cases that ought to be brought separately if at all).

So... the thing that makes a million individuals the same is that they... are different. They should have been made the same.... or more alike... by a sex-discrimination-conscious policy. I think it's possible to get your head around that idea, but nearly impossible to picture workable legal doctrine governing the real-world affairs of human beings... including the judges who would apply it.

ALSO: I'm reading Justice Scalia's assessment of the "social framework" analysis that the plaintiffs offered to prove that Wal-Mart had "a general policy of discrimination" (which was supposed to be the common question supporting the class action form of litigation):

[Dr. William] Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition … Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004)....“[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say.

AND: I've written a new post to help you understand the way in which this was not a unanimous decision.

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

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

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

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

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

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

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

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

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

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

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

Ruth Bader Ginsburg says "I am certainly not going to retire before I get my Albers back."

(Via CNS.)

"Her womb was a barren desert in which my seed could find no purchase."

April finally comes up with the quote that my quote from Larry Tribe reminded her of. I was riffing on "Neither Steve Breyer nor Ruth Ginsberg has much of a purchase on Tony Kennedy's mind." The quote that had found purchase in April's brain was from from "Raising Arizona."

What if the odd and arch use of the word "purchase" gained purchase in Larry Tribe's brain because he'd watched "Raising Arizona." Suddenly "the idea of the image Tribe had of Kennedy's brain" is funny in a whole new way. "Justice Kennedy's brain/womb was a barren desert in which Breyer/Ginsburg's seed could find no purchase." Tribe thought Elena Kagan would be much better at.... what?

But it's not such an odd image. We speak of fertilizing minds and seminal ideas and gestating thoughts and mindfucks.

"The talk in Washington is what the impending elevation of the former Harvard Law School dean and solicitor general will mean for the capstone of the judiciary."

Asserts David Broder, and I have to laugh. 1. There's the inane elevated tone of the writing: "impending elevation," "capstone of the judiciary." You know you're reading bullshit, so, thanks for that. 2. Who can possibly believe the people of Washington are abuzz over the effect Elena Kagan will have on the Supreme Court? 3. Didn't everyone figure out many weeks ago that Kagan, replacing Stevens, is only going to keep things the same?

To his credit, Broder proceeds to posit the theory that is my question #3. He puts it in the mouth of a former attorney general next to whom Broder was seated at a dinner party the other day. Gotta put in the seat-work at those D.C. dinner parties to dig up ideas for WaPo columns, you know. Broder decides this is "probably the conventional wisdom," then begins his next paragraph: "That is what they say, and I have no legal credentials to challenge their conclusion." Yes, but you are some kind of journalist — right? — so you could have asked some more people before you took what that one fellow/lady dribbled out at the dining table as what everyone was saying.

But, as I told my dinner companion...

Oh, lord, the thrill of being transported to this scintillating dinner party, in Washington, with an ancient pundit extracting conventional wisdom from a once-powerful lawyer!

... I suspect that he is wrong and that Kagan's joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.

Quelle riposte! Oh! Would that I could be in such company! The elderly lawyer manages to say something mind-crushingly obvious, and the old pundit, keeping the colloquy going, with no legal knowledge, disagrees.

I say this based on what I saw happen in The Post's newsroom and many others when female reporters and editors arrived, in increasing numbers, starting in the 1970s and '80s. 

Now, our trusty columnist does the hard work of dredging up memories from 30+ years ago. I saw those female reporters in the 70s... humming "I Am Woman" as they changed the world of men for the better... And yet you still have your job, cluttering up the pages of the Washington Post with this self-indulgent nonsense. Why hasn't some brilliant lady ousted you yet? I mean, this column has you recounting a conversation that — if I'd participated in it — I'd have gone home feeling ashamed that I'd been so dull at the dinner-table. Yet you serve it up as leftovers in a Washington Post column. And now you are feeding me this warmed over Women's Liberation stuff that is refuted —  refudiated! — by the fact that you are still here writing this column.

They changed the culture of the newspaper business and altered the way everyone, male or female, did the work.

And this has something to do with Elena Kagan, coming onto the Supreme Court, where there isn't ONE Justice who hasn't shared that bench with a woman. Stevens — have you noticed? — was the last Justice who served on an all-male Supreme Court.

The women who came onto the political beat asked candidates questions that would not have occurred to male reporters. They saw the candidates' lives whole, while we were much more likely to deal only with the official part of it. So the scope of the candidate profiles expanded, and the realm of privacy began to shrink.

They saw the candidates' lives whole...  Broder's elevated diction goes wild.  The realm of privacy began to shrink... Please don't reveal your shrinkage problems, Dave! I don't want to hear about your realm... your domain....

He's dredging up material from the 80s "In a Different Voice" Women's Studies era, and it's borderline insulting. It's Broderline insulting.

They also changed the rules for reporters themselves. When I joined the press corps in the 1960 presidential campaign, I was formally instructed by a senior reporter for the New York Times on the "west of the Potomac rule." What happened between consenting adults west of the Potomac was not to be discussed with bosses, friends and especially family members east of the Potomac.

Look out! The floodgates have opened! Broder's going back to 1960!

It was a protective, chauvinistic culture, and it changed dramatically when more than the occasional female reporter boarded the bus or plane.

Hey, Broder. Remember the 90s? How'd you guys do with the Clinton sexual harassment story? Are you keeping up with the allegations against Al Gore?

I don't know how having three strong-minded female justices serving simultaneously for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members.

That's right. You don't know whether 3 women with 6 modern men will be different from 2 women with 7 modern men, and you haven't gotten up out of your antique comfy chair to do one thing to find out. Yet Broder, at this point, has run out of material on his subject. Go to the link and you'll see that he pads out his column with 200+ more words on other Kagan-related stuff that was casually rattling around in his...  eminent dome... his venerable cranium... his... nugatory noggin.

The Christian Legal Society loses its 1st Amendment challenge to the accept-all-comers policy required by Hastings Law School.

Justice Ginsburg writes for the majority in Christian Legal Society v. Hastings College of the Law, answering yes to the question: "May a public law school condition its official recognition of a student group — and the attendant use of school funds and facilities — on the organization’s agree­ment to open eligibility for membership and leadership to all students?" The CLS wanted to restrict membership to those who would sign a "statement of faith" and to exclude those who engage in "unrepentant homosexual conduct."

Justice Ginsburg expresses deference to the law school's reasonable and "viewpoint-neutral" policymaking:

Hastings... could reasonably expect more from its law students than the disruptive behavior CLS hypothesizes—and to build this expectation into its educa­tional approach. A reasonable policy need not anticipate and preemptively close off every opportunity for avoidance or manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.

That final "if" is important, and it takes a lot of the wind out of the sails of the dissenting opinion written by Justice Alito. From the dissent:

In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its message, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.” With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s “demise” (who may be kept out) is hopelessly vague.

The majority is deferring to the law school, and not preemptively dealing with this other situation which hasn't happened and which it would prefer to trust the law school to deal with if in fact it ever does happen.

***

Note: Justice Ginsburg was present in Court for the announcement of today's opinions, even though her husband died yesterday.

"Marty Ginsburg was known in Supreme Court circles as Justice Ginsburg’s secret weapon."

"Justice Ginsburg herself can sometimes be shy, awkward, and introverted, but her husband was gregarious, charming, and a great entertainer.... Martin Ginsburg’s passing is undoubtedly a great loss to ... Justice Ginsburg, to whom he was married for 56 years...."

Reading this, I put my face in my hands for several minutes and cried.