"41 states prohibit same-sex marriage. But only 20 of those 41 states have filed briefs in support of the constitutionality of Proposition 8."

"Indiana is the lead party on a brief for 19 states, and Michigan filed a brief of its own."

Compare this level of state participation with, for example, the amicus brief filed by all 49 other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense....

It is further significant, I think, that in 12 of those 21 non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process.  All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law... 

Waiting for an order granting Supreme Court review in a same-sex marriage case. [UPDATE: Granted!!]

They're live-blogging the anticipation over at SCOTUSblog.

The Conference is over for today; that was some time ago. What's going on now is composing orders, if any are to be released today. Simple grants are easier to write than, say, consolidated grants among several picked cases....

I expect the Court to act today on the gay-marriage petitions for two reasons. First, it has to rule on the petitions at this Conference if they are going to be argued in March. Otherwise, it has to wait until April. And the Court would prefer to have more time between the argument and when the Court ends the Term in late-June.

UPDATE:  "Prop. 8 is grant[d]. So is Windsor. Those are the only two marriage cases granted."

Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop. 8 have standing in the case under Art. III.

In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

AND: "The Court... has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues."

9 minutes in June — reporting the Obamacare case.

Tom Goldstein — of SCOTUSblog, which got it right — examines the details of how CNN and FoxNews got it wrong.

10:08:30.... On the blog, readers are starting to taunt us via our comments feature (there ultimately will be 13,500 comments over the course of the Live Blog):  Guest, “CNN was first, guys…”; Bill, “Fox is already announcing decision”; yolanda, “TV just announced the decision beat you to it”; Guest, “Fox News beats soctusblog….”



It takes me almost one minute exactly to analyze the decision.... I unmute the conference call line and repeat what we have just posted....

Opponents of the Act, having seen the television reports, are incredulous and vocal in their responses:  Guest, “WHAT???”; Guest, “no reports says its gone!”; Republican, “OMFG”; Tim, “No it isn’t”; Ryan, “Bullshit”; Guest, “apparently you have it wrong”; Sarika, “IT IS NOT SURVIVING AS A TAX!!”; Fred, “It sounds like you guys are spinning this thing.  Knock it off and read the law!”

Others have seen enough to know that they need another news source:  Guest, “I’m outta here.  Turning on TV”; David, “I won’t be back to this site.”

And some indicate we are simply too late, and that Fox and CNN’s earlier reports are res judicata on other journalists:  John, “They already struck it down”; Guest, “The mandate is GONE.”

Ha ha. Much more at the link.

President Obama should have been reading SCOTUSblog, not watching TV.

"Standing with White House chief of staff Jack Lew and looking at a television in the “Outer Oval” featuring a split screen of four different networks, the president saw graphics on the screens of the first two cable news networks to break the news — CNN and Fox News Channel — announcing, wrongly, that he had lost."

I was reading the SCOTUSblog live blog with CNN on in the background:

CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."...

From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

CNN was fumbling and blathering. I guess they have to fill every second of real time. A live blog seems as though it's real-time, but the participants have the ability to read something and study it without writing anything. But that's not enough of an excuse for the TV news failure. They need one person to talk, but several others could be quickly reading parts of the opinion and ready to go on camera when they have something to say.

I'm still annoyed at CNN for wasting my time — and playing with my emotions — back on June 5th when the polls closed in the Wisconsin recall election and they were insisting that the race was too close to call. It's razor close. After an hour of such hand-wringing, they call it for Walker, and in the end, he wins by 7 percentage points.

Fox News got it wrong too, it should be noted. Both today and on June 5th.

The "Stolen Valor" case — United States v. Alvarez.

From the SCOTUSblog live blog this morning in the Supreme Court:

In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality.

The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. So Congress probably could rewrite it.

"Lying was his habit" is how the opinion begins.

Alito, Scalia, and Thomas dissent.

Here's the opinion PDF.

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

So, we must wait until Thursday for the Obamacare decision.

According to SCOTUSblog's expert opinion, based on who's written the decisions already announced, "health care is almost certainly being written by CJ Roberts, perhaps in part with Justice Kennedy."

Justice Scalia "is commenting on the president's announcement about suspending deportation of illegal immigrants who came to the U.S. as children...."

Writes Amy Howe, covering the Supreme Court live at SCOTUSblog. Scalia is speaking in connection with his dissenting opinion in Arizona v. United States — PDF — but this new development isn't part of the case.

ADDED: Here's the relevant material from Scalia's dissenting opinion:

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is [sic] not the problem here. 

After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
If an individual unlawfully present in the United States

“• came to the United States under the age of sixteen;
“• has continuously resided in the United States for at least five years . . . ,
“• is currently in school, has graduated from high school, has obtained a general education develop­ ment certificate, or is an honorably discharged veteran . . . ,
“• has not been convicted of a [serious crime]; and
“• is not above the age of thirty,”

then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

Watching for the new Supreme Court opinions.

SCOTUSblog covers the Court live here. Announcements begin at 10 ET.

ADDED: Here's a SCOTUSblog post clearly stating the issues in the remaining cases. That post is from last Wednesday, so it includes a few cases that were decided last Thursday. There are 6 more cases to be announced, but it's unlikely that all will be announced today, even though today is the last scheduled day for announcing opinions. There will probably be another day later this week.

UPDATE: "Montana campaign is summarily reversed, five to four." So... the occasion for reconsidering Citizens United is over. [Here's some background on the Montana case, where the state supreme court had a decision which did not give adequate respect to Citizens United.]

UPDATE 2: "The Court holds that the Eighth Amendment forbids a scheme of life in prison without possibility of parole for juveniles." A 5-4 decision, written by Justice Kagan. Justice Alito writes the dissenting opinion. "[I]t is relatively rare for a Justice to read a dissent from the bench but not unheard of."

UPDATE 3: The 9th Circuit is reversed in part and affirmed in part in Arizona v. United States. "Most of the key provisions of SB1070 (3 of 4) are invalidated. One provision is held not to be proved preempted; it must be construed.... The provision that the Court says is not yet preempted is the 'check your papers' provision that commands officers to check immigration status."

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

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

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

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

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

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

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

Rush Limbaugh — calling SCOTUSblog "a very, very left-wing blog" — explains "the left's" "full swing" "effort to intimidate" the Supreme Court.

That took me aback, because I'm so used to viewing SCOTUSblog — which I read all the time — as a very authoritative and relentlessly sober source of information about what's going on in the Supreme Court.

RUSH: There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.... The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself....



The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they're gonna find the bill unconstitutional.... The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can't stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else....

Now, the theory that I just gave you comes from SCOTUS blog. It's run by a very left-leaning guy. A lot of people who are not liberals have run across this theory and it appeals to them. It's slowly but surely behind the scenes becoming conventional wisdom, and of course the left is glomming onto this, 'cause they love this possibility....

Now, don't worry too much about this theory, folks. The theory is becoming conventional wisdom and that means it's irrelevant and is wrong. It's advanced by the left. And, by the way, here's a quote from Senator Richard Blumenthal, former attorney general Connecticut, now Senator from Connecticut. The left is playing this "you will ruin your reputation" card. That's what this theory is about, the theory that justices will see it. They're trying to intimidate the court into ruling in favor of Obamacare....

So you guys on the court, you people on the court, you are going to destroy the court and your credibility and people won't obey if you do the right thing here and find this constitutional. So the effort to intimidate is under full swing.

Now, if Rush links to the SCOTUSblog item he's talking about, I can't find it over there. I went to SCOTUSblog to look for it myself, and I found something else that really shook my opinion that SCOTUSblog is a sober place that maintains a professional gloss:

The RNC shoots itself in the mouth

Shoots itself in the mouth?!!! I thought good people were supposed to eschew murderous metaphors after the Tucson shootings. Remember that? The "new civility" stuff Obama lectured us about. Click my "civility bullshit" tag to brush up on the topic.

(Yeah, I called it "civility bullshit" from Day 1, because I always thought it was a one-sided effort to quiet critical voices and because I don't accept instruction on form of expression and because I think the demand that everyone speak in a sober manner further empowers those who already hold more than their share of power. As they say in China: "Can I say a curse word? No? Then I've got nothing to say.")

But back to Tom Goldstein in SCOTUSblog:

Opponents of the Affordable Care Act and the Obama Administration... did a tremendous job framing their constitutional argument against the statute to the public, the lawyers on their side were brilliant, and it appears that they had a receptive Supreme Court majority. It was an eleven on a scale of one to ten.

Now this. The RNC released an advertisement... with audio from the halting beginning to Don Verrilli’s oral argument on the individual mandate to make the point that (as the ad’s title says) “ObamaCare: It’s a tough sell.”

Here's the quite hilarious and brilliant ad:



Goldstein, like the Bloomberg News article he links, professes outrage over the way the ad plays Verrilli's drinking of ice water and saying "excuse me" twice. You hear it and you hear it again. Duh. The repetition of the sound bite is obvious, but Goldstein and Bloomberg call it "doctored" audio, as if they've uncovered something nefarious, and do a high dudgeon routine:

I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it. I would be shocked if a serious conservative lawyer would stand by the ad.

Oh, for... Can I say a curse word? No? Then I've got nothing to say.

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

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

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

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

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

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

The Supreme Court begins its new term — "widely expected to be one of the most exciting and important Terms in recent memory."

That prediction of thrills and spills comes from Joshua Matz at SCOTUSblog, who links to lots of the mainstream press previews. I'll read a few of them and do separate posts if anything jumps out at me. For now, and to get this blog rolling on a Monday morning, I'll just say that an exciting Supreme Court adds an element of danger to the presidential campaigns.

When the Supreme Court indulges Congress's indulgence in fuzziness.

SCOTUSblog says the Scalia dissent in Sykes v. United States is "awesome." Justice Scalia writes:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

I remember the time a colleague of mine yelled at me for saying exactly that. She was working on a complicated project dealing with how courts should sort out the details in for Congresses that indulge themselves with fuzziness.

The Supreme Court takes a global warming case....

... with Justice Sonia Sotomayor recusing herself. American Electric Power Co. v. Connecticut involves the use of a common law theory of nuisance:

[Five companies] that were claimed to be the largest sources of greenhouse gases — four electric power companies and the Tennessee Valley Authority — were sued by eight states, New York City, and three land conservation groups...

Calling the potential impact of the nuisance theory “staggering,” the companies’ petition said that virtually every entity and industry in the world can be found to be partly responsible for some emissions of carbon dioxide, so they are potentially liable to be sued in climate changed nuisance lawsuits.

When it comes to carbon dioxide, we're all a damned nuisance.

The Supreme Court will decide if Wal-Mart can be sued by a class of 500,000 female employees claiming discrimination.

SCOTUSblog reports on Wal-Mart Stores v. Dukes:

The first question will be whether, under Federal court Rule 23, a lawsuit may seek a money verdict — in this case, a claim for back pay — when the class was created under a provision that limits remedies to corrective court orders, not money.   Besides agreeing to hear that, the Court told the parties to file briefs and prepare to argue on a second question — whether the class was a proper one, under Rule 23, when it was cleared to go forward under Rule 23(b)(2)....

Wal-Mart’s petition had raised a second question that embraced the broader argument that no class should have been approved at all, since the claims made by the women employees were so disparate and so diffuse that they really had nothing in common, and that, as a result, Wal-Mart would not have been able to mount a defense to such claims....

The class approved in this case is the largest ever certified in a job bias context, but is also among the largest of any class certified in any case in federal courts....

The sex discrimination class-action case against Wal-Mart was actually started more than nine years ago as a race bias case involving a single company employee — Betty Dukes, a black woman who is a “greeter” at the company’s store in Pittsburg, Calif.  It later became a class-action lawsuit with six original plaintiffs, including Dukes, contending that the company has engaged in pay and promotion discrimination against women throughout the chain.

MORE: Adam Liptak and Steven Greenhouse have this:

Wal-Mart, which says its policies expressly bar discrimination and promote diversity, said the plaintiffs, who worked in 3,400 stores in 170 job classifications, cannot possibly have enough in common to make class-action treatment appropriate. “We are pleased that the Supreme Court has granted review in this important case,” Wal-Mart said in a brief statement. “The current confusion in class-action law is harmful for everyone — employers, employees, businesses of all types and sizes and the civil justice system. These are exceedingly important issues that reach far beyond this particular case.”...

Brad Seligman, the main lawyer for the plaintiffs, said Monday that plaintiffs welcomed the court’s review of the limited issue and were confident that the justices would rule in their favor. “Wal-Mart has thrown up an extraordinarily broad number of issues, many of which, if the court seriously entertained, could very severely undermine many civil rights class actions,” Mr. Seligman said.

The decision in the 9th Circuit was written by Judge Michael Daly Hawkins — who, incidentally, is one of the judges in the Prop 8 case. (I spent what seems like the entire day listening to the oral argument in that case.)

[W]riting for the majority, [Hawkins] said the company’s policies and treatment of women were similar enough that a single lawsuit was both efficient and appropriate....

[Dissenting, Chief Judge Alex Kozinski wrote:] “Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers”....

“They have little in common but their sex and this lawsuit,” Judge Kozinski concluded.

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

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

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

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

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

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

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

Margie Phelps, a daughter of Fred Phelps, will be arguing before the Supreme Court today.

The issue is freedom of speech, and the speech in question is repulsive. (Phelps's church protests near military funerals, with signs like "Thank God for Dead Soldiers," to express the view that God is punishing the U.S. for its immorality.) The father of one soldier sued for intentional infliction of emotional distress — which is a tort — and won $5 million against the church.

Much more detail at SCOTUSblog.  This is telling:

[T]his case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.

Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.

The quality of legal advocacy... is that meant as a laugh line? How did it happen that the work of upholding First Amendment rights is in the hands of Margie Phelps? I don't know the story, but it's not that the usual free speech defenders have failed to support these profoundly unpopular and ugly speakers. There are amicus briefs from the ACLU and from law professors in support of the Phelps group.

It will be interesting to see how Margie Phelps carries out her lawyerly task. Back in 2004, Michael Newdow argued his own case in the "Under God"/Pledge of Allegiance case and his nontraditional, passionate style seemed to work rather well.

Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case.... But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described ''under God'' as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.
The vote was unanimous, Dr. Newdow said.

''Well, that doesn't sound divisive,'' the chief justice observed.

Dr. Newdow shot back, ''That's only because no atheist can get elected to public office.''

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared ''if there's any more clapping.''

I doubt if there will be any clapping for Margie Phelps. Or any dinner-table-style repartee. She's coming in from the other end of the God spectrum, and we shall see how that sounds.

The Supreme Court closes its Term today.

I want to read the case announcements in real time on SCOTUSblog, but it seems to be maxed out at the moment. I know I'm only making it worse by linking, but I'm doing it anyway.

(Too bad neither the Washington Post nor the New York Times is front-paging real-time coverage. There's a deluge of web traffic with nowhere to go.)

UPDATE: Here's the SCOTUSblog post. The Second Amendment case is out:

Erin: Alito announces McDonald v. Chicago: reversed and remanded
10:04
Tom: Gun rights prevail
10:05
Erin:
The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense
10:05
Tom: 5-4
10:05
Erin: Stevens dissents for himself.  Breyer dissents, joined by Ginsburg and Sotomayor.
10:05
Tom: The majority seems divided, presumably on the precise standard
10:06
Erin: The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.
10:06
Erin: Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause.
10:07
Erin: Thomas thinks the Amendment is incorporated, but not under Due Process.  He appears to base incorporation on Privileges or Immunities.
Tom: The difference between the majority and Justice Thomas doesn't affect the fact that the Second Amendment now applies to state and local reguation...
10:08
Erin: The McDonald opinion is here.

Can we believe the polls that say a big majority of Americans oppose the Supreme Court's decision in Citizens United?

No, because the people surveyed mostly only knew about the case from the description given by the pollster. Here's the way ABC/Washington Post tried to get its unprepared respondents up to speed:

Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

What percentage of those surveyed do you think understood "spend" to exclude contributing money to the candidate?  20%? I'm saying 20% to be snarky, because that's the proportion of respondents who approved of the decision. My real point is, the survey is utter trash. Worse than utter trash, because it propagated misinformation.