Tag Archives: rehnquist

Scotusblog on Souter

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Tom Goldstein at ScotusBlog has interesting thoughts on Justice Souter’s retirement and his possible replacements.

David Souter will be the first Supreme Court justice whose career I’ll remember from start to finish. I was too young to know about Sandra Day O’Connor’s appointment; I was 16 when Souter was appointed in the summer of 1990, living at my aunt and uncle’s house in New Jersey on a break from Japan. Souter’s will be one of the shortest terms in recent Supreme Court history, at just 19 years. O’Connor served for more than 24 years; Rehnquist, more than 33; Blackmun, 24; White, 31; Marshall, 24; Brennan, 31. The last justice to serve fewer than 20 years was Lewis Powell, from 1972 to 1987.

So Souter will retire at age 69 and go back to New Hampshire, where he can spend the rest of his life hiking, reading, and eating his daily lunch of a whole apple (including the core) and yogurt, seemingly unchanged by the city where he’s spent the last two decades. I wish him a happy retirement.

Clarence Thomas

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With the publication of his new autobiography, Clarence Thomas is back in the news in a big way.

Clarence Thomas has lots of issues to sort out. Here are some random thoughts on him that have swirled around my head over the years but that I’ve never put into words.

Thomas says it’s the liberals, black and white alike, who are hung up on his race, but he’s the one who seems hung up on it.

He still believes that he was attacked during his 1991 confirmation hearings because he was black. But doesn’t he understand that the only reason George H.W. Bush nominated him to the Court was because he was black? If he hadn’t been black, he wouldn’t have gotten the nomination. Thurgood Marshall, the only black justice on the Court, was retiring; Bush would look bad if he nominated a white person to replace him, leaving an all-white Court. So Bush decided to have it both ways; if he was going to nominate a conservative, why not nominate a black one? That would flummox those Democrats, wouldn’t it? They wouldn’t vote against a black person, would they? Thomas had been a judge for a less than a year and a half; there were numerous other people Bush could have nominated to the nation’s highest court. Bush clearly used Thomas in a cynical ploy to get liberal senators to vote for a conservative nominee. Given this, what reaction did Thomas expect from people?

Thomas accuses the liberal black community of attacking him in 1991 because he was a black man who betrayed his race. That’s not quite accurate. The anger at Thomas has less to do with Thomas himself and more to do with the justice whom Thomas replaced.

Thurgood Marshall, appointed by Lyndon Johnson in the late ’60s, was a legendary figure even before he became the first black justice on the Court. He’d served as the NAACP’s chief counsel and had argued numerous black civil rights cases before the Supreme Court, culminating in his arguments in Brown v. Board of Education in 1954. During his 24 years on the Court, from the Johnson years into the conservative Reagan and Bush years, he became a liberal holdout for civil rights alongside his colleague William Brennan, even after their fellow liberal colleagues were replaced with justices like William Rehnquist and Antonin Scalia. For Bush to replace Thurgood Marshall with someone like Clarence Thomas was a slap in the face to everything Marshall had stood for. So of course there was going to be anger.

But liberal black America wasn’t really angry at Thomas. Obviously I can’t read minds, and generalizations are unreliable, but it seems to me that liberal black Americans were actally angry at Bush and the Republicans. Bush tried to treat black Americans as fools whom he could easily manipulate; just nominate a black person and you can win the blacks over. Not only was this patronizing, but it also smacked of racism itself.

So Thomas is mistaken about black America’s anger.

But it’s not just black liberals whom Thomas holds a grudge against; it’s white liberals, too. Thomas accuses white liberals of attacking him because he was an “uppity black.” I can’t speak for all liberals, but as for me, I didn’t oppose Thomas because he was black or “uppity,” and it’s an insult to me to say so. I opposed Thomas because (1) he was a conservative, and (2) he didn’t seem to cut it on the merits. His race had nothing to do with it — except for the cynicism Bush created by simultaneously nominating him because of his race and saying that his race had nothing to do it.

I haven’t even gotten to the Anita Hill accusations yet. That’s a whole other area where Thomas seems to be either hung up on his race or hypocritically using his race as a weapon.

Thomas has claimed that he suffered through a “high-tech” lynching in 1991 when Anita Hill accused him of sexual harrassment. He’s claimed that his opponents decided to use the spectre of the stereotypical black male sexual predator to try to destroy him.

I’ve never put this into words, because it’s always seemed somehow racist or reverse-racist to do so. But here goes.

The thing is, Clarence Thomas hardly fits the stereotype of the black male sexual predator. He’s only 5-foot-8-1/2, and during his confirmation hearings he wore big nerdy glasses. In fact, he came across as rather shy and bookish and the farthest thing from a sexual predator there could be. I can’t step into the mind of Joe Racist, but it doesn’t seem to me like Joe Racist would apply that classic black stereotype to Thomas. Maybe he would, I don’t know. But it seems like a stretch, and it seems contradictory for Thomas to make such a paranoiac accusation while claiming to be so post-racial, enlightened, and independent-minded. The accusations of sexual harrassment didn’t gain traction because Thomas was black; they gained traction because Anita Hill seemed like a highly credible witness. Race had nothing to do with it.

Another facet of the Clarence Thomas puzzle is the issue of affirmative action. Thomas hates affirmative action because he believes that it taints his Yale Law School degree. Thomas does have a point here; without affirmative action, Thomas either would have been rejected from Yale Law School on the merits, in which case we wouldn’t be having this discussion; or he would have been accepted to Yale Law School clearly on the merits, in which case we also wouldn’t be having this discussion.

But the only reason Thomas is on the Supreme Court right now is because of a type of affirmative action; his nomination was race-based. Thomas opposes affirmative action while denying that he’s benefitted from it. Granted, it’s not exactly the same, because Bush was not compelled by any law or written policy to nominate Thomas. And Thomas was nominated not in order to make up for past racial injustice, or to give Thomas a leg up; he was nominated as a cynical political calculation. (I guess it’s possible to give Bush the benefit of the doubt — perhaps he nominated Thomas for noble reasons, to show Americans that there can be diversity of political opinion among blacks and that black people do not all have to march in lockstep. That’s a gesture that has some value, but even if it’s the case, and I’m not saying it is, it still means Thomas’s nomination was race-based.)

So there are a couple of paradoxes here. Thomas has reached the pinnacle of legal achievement — a lifetime appointment to the Supreme Court. He’s set for life. He won the fight. And yet he’s still angry.

He’s also delusional. He wants to believe that his race has nothing to do with his being on the Supreme Court and everything to do with his being attacked. In reality, his race has everything to do his being on the Court but very little to do with his being attacked.

Clarence Thomas is fascinating. If he didn’t exist, someone would have to invent him. He’d make a great literary character in a work of fiction — except that he already seems to have written it in his own mind.

Concurrence Hell

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I enjoy reading the little paragraph at the end of a Supreme Court decision syllabus summarizing who voted with whom. They tell you how complicated any particular court decision is.

Here are some examples, from simplest to most complicated.

First, there’s the per curiam opinion, which is unsigned, and therefore needs no summary at the bottom of the syllabus telling who voted with whom:

There’s the unanimous opinion:

SOUTER, J., delivered the opinion for a unanimous Court.

Then there’s the case with a lone dissenter or concurrer:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

There’s the case with a few dissenters signing one opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

There’s the case with a partial concurrence or dissent:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV.

There’s the case with both a concurrence and a dissent:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

There’s the case with multiple concurrences and/or dissents:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

There’s the case where it gets a little more complicated:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Part III. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.

Or even more complicated:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

But I think my favorite is this one, from a 2003 campaign finance decision (which, incidentally, was gutted last week):

STEVENS and O’CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II—A, and II—B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

So much for judges being mere umpires!

Thoughts on Alito

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Get used to saying “Scalia, Alito” rapidly, as in, “Roberts, Scalia, Alito, Thomas,” who will be voting closely together in lots of cases.

Fortunately, there are still five pretty solid votes on the Court for the area I care most about, gay rights – Stevens, Kennedy (who wrote Lawrence and Romer), Souter, Ginsburg, and Breyer. Now that O’Connor’s presumably gone, I think Kennedy’s going to become the new swing vote. Also interesting and still semi-applicable: this SCOTUSblog article from June about a possible “gang of three” – just replace “Rehnquist” with “Alito” in the following excerpt:

On a Court somewhat more conservative without O’Connor, Kennedy’s influence seems sure to grow. He has a chance to become the new balance wheel, a role that was filled so routinely by O’Connor. (Even if there were to form a solid Rehnquist-Scalia-Thomas-Roberts phalanx, they would still need Kennedy to prevail, and he would not be with such a quartet automatically.) Kennedy also has more influence than is sometimes credited to him. He has a store of common sense that saves him from ideological rigidity, and that steers him away from agenda-driven voting. He has an even deeper sense of what history asks of the few who become members of the Court. Those are summonses to the use of sound judgment.

As I’ve said recently, despite my relatively liberal social views, my judicial views have been in flux lately. Alito seems not be an ideologue or an asshole like Scalia, which is good. I prefer him to someone like Janice Rogers Brown or Priscilla Owen. (And hey – go, New Jersey, with two out of nine seats!)

The Harriet Miers nomination was bad for the Court as an institution. The Alito nomination is good for the Court, regardless of how good or bad it turns out to be for the country.

Roberts as Chief

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There’s been way too much news this past week. Between Katrina and Rehnquist/Roberts, I can’t read the newspapers and blogs fast enough. And I’m pissed that The Note has been on vacation for two and a half weeks. Mark Halperin and his staff will have a lot of catching up to do when they return tomorrow.

It’s not totally suprising that Bush has moved Roberts’s nomination to the Chief Justice position. He’s practically in love with Roberts, and he wasn’t going to name someone who wasn’t a white male as Chief Justice, but he wasn’t going to nominate a white male for the second vacancy. So O’Connor’s replacement will probably be someone non-white or female or both.

On the other hand, Bush has never acted in line with political predictions.

Interesting fact: since Roberts is only 55 only 50 years old, he could wind up having one of the longest Chief Justiceships in American history, second only to that of John Marshall. [Update: or even the longest!]

The switch of Roberts to the Chief Justice’s seat changes the dynamics of Bush’s two appointments. As SCOTUSblog writes, “The nomination of a doctrinaire conservative to replace the Chief Justice could have been explained as ideologically neutral for the Court, as the new nominee would not move that seat to the right. Moving Judge Roberts to the seat of Chief Justice, by contrast, opens up again the debate over what Democrats will describe as the ‘O’Connor’ seat — that of a moderate conservative.”

There’s going to be pressure (again) to replace O’Connor with a moderate. But hasn’t that ship sailed? What if Roberts actually turns out to be the moderate of the two appointments? Ugh. It’s still possible.

At any rate, here’s hoping that Chief Justice Roberts will be presiding over Bush’s impeachment trial soon.

Roberts and Romer

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I’m very intrigued by the news about Judge Roberts and Romer v. Evans. My initial cautious admiration had been turning into worriment in the last couple of weeks, with all the news about his cocky Reagan-era views, but this reassures me a bit. It doesn’t mean a whole lot – again, whom you represent or advise as a lawyer doesn’t necessarily say anything about your own views. But I can’t imagine that Antonin Scalia or Clarence Thomas would have volunteered, pro bono, to help out the gays.

On the other hand, the issue in Romer v. Evans was pretty egregious. It involved the following amendment to the Colorado constitution:

“Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”

In short, the amendment (which passed) legalized all types of discrimination against gays and lesbians – in employment, in housing, in whatever. Opposition to that amendment wouldn’t necessarily translate to sympathy for gay marriage or other gay-rights issues. As Arthur Leonard says in the linked article above, “There is certainly a difference between striking down laws that impose second-class citizenship on a class of people and supporting more affirmative rights for such people, and I don’t think a judge’s position on one necessary predicts his position on the other.” (It could be argued, of course, that same-sex marriage bans impose second-class citizenship on a class of people, but I know what he’s getting at.)

So like everything else that has been uncovered thus far, it doesn’t say much about Roberts other than that he’s not a Scalia or Thomas. Well, it also says he might not be a Rehnquist.

But also, Roberts, at age 50, would be the youngest member of the current Court by seven years. (Thomas is 57.) Scalia will be 70 next year. While age does not predict attitude, someone born in 1955 will have grown up in a different cultural context than someone born in 1936. Judge Roberts was 14 at the time of the Stonewall riots, for instance. Not that that necessarily means anything, but it’s something to keep in mind.

Anyway, this whole thing is intriguing. I guess we’ll see what it means.

Blawgs/Seminole

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My finger seems to be normal again. That’s good.

Unfortunately, my throat has been sorer today than yesterday. I decided to take the day off from work. After Matt and I had lunch at Lemongrass, I went to the hardware store and bought new air-conditioner filters. Hopefully that’ll make things better.

I also went through my several boxes of memorabilia today (from childhood, adolescence, high school and college) and separated out about half the stuff to toss in the trash. God, I’ve been such a packrat. I don’t know why I was keeping my high school U.S. History notes or my DC Heroes role-playing game.

In other news, I’ve been thinking about starting a law blog (or “blawg”). Lately I’ve been writing lots of law-type stuff, and I’m not sure how interesting it is to my readers. On the other hand, I don’t know if I’d want to write about legal stuff enough to justify a daily law blog.

But this afternoon (and this will sound random) I finished reading Justice Souter’s dissent in Seminole Tribe v. Florida, a major Eleventh Amendment case from 1996. I studied the case in law school and saw a reference to it again recently, so I decided to print out Souter’s dissent and reread it. It’s a brilliant piece of scholarship, and it’s nearly three times as long as Rehnquist’s misguided majority opinion. Over the past 100+ years, the Supreme Court has fucked up the Eleventh Amendment beyond belief.

Anyway, I like having just one blog. Even if it doesn’t have a consistent focus, and some readers might be thrown off by some of the topics, this blog’s a reflection of me and of what’s going through my brain at any given time. And again, I don’t think I’m obsessive enough to keep up a daily blawg.

So I might as well just keep the one.

Gang of 3?

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Here’s a great analysis of how Roberts could become part of a new “Gang of 3” on the Court:

Thus, the possibility is a Court in the new Term starting in October that has Scalia and Thomas, joined somewhat loosely by Rehnquist, on the most conservative wing, Justices Souter, Ruth Bader Ginsburg and John Paul Stevens on the most liberal wing, and Roberts somewhat loosely aligned in the center with Kennedy and Breyer.

It’s all tea leaves at this point, but this is interesting nonetheless.

Poor Justice Breyer

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There are a couple of good behind-the-scenes articles today on how the White House, Congress, and outside groups are prepared to react in the event of a Supreme Court retirement and subsequent nomination of a new justice. One conservative group, the Committee for Justice, “plans to feed research to conservative bloggers so they can fact-check and counter opponents’ claims,” according to the Washington Post. I was struck by the reference to bloggers – at the time of the last nomination, in 1994, the Web barely registered in our culture. The next nomination will be the first of the Internet Age.

Anyway, a retirement seems increasingly unlikely this year, especially given Justice Thomas’s remark yesterday that the Court’s recent term ended as “winds of controversy swirled about the Court’s decisions and, unfortunately, about the imagined resignations.” I’ve been annoyed by the media’s breathless speculations, both this week and two years ago, over non-existent retirements. And it would be sad if someone retired now, when the Court is achingly close to breaking the record of the longest period of time without a change in membership. The current record is just over 11 years, from February 3, 1812 (the arrival of Joseph Story) to March 18, 1823 (the death of Henry Brockholst Livingston). Since Stephen Breyer joined the Court on August 3, 1994, the record would presumably be broken around September 15, 2005. The new term doesn’t begin until the first Monday in October, so theoretically Rehnquist or O’Connor could announce his/her retirement now, I guess, but not make it effective until the second half of September. But that seems to me like cheating.

Meanwhile, poor Justice Breyer has been the junior justice for 11 years. That’s 11 years of answering the door. He must be sick of it. If anyone’s looking forward to a new justice, it would be him.

Kelo v. New London

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I didn’t think this day would come, but today I find myself agreeing with Justices Thomas, Scalia, and Rehnquist (and O’Connor) and think that the more liberal-minded justices (Stevens, Ginsburg, Souter and Breyer, and sort of Kennedy) issued a really asinine decision this morning.

The Court ruled in Kelo v. New London, 5-4, that governmental entities can take private homes for private economic development. The “takings clause” of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” A governmental entity has always been allowed to take someone’s private property and provide compensation for doing so, but only if it’s for a “public use” – a highway, a railroad, etc. (There are more examples, but I can’t think of any – I’m far from an expert on the takings clause.) This morning, in an opinion by Justice Stevens (who’s usually one of my favorites), the Court broadly interpreted “public use” and stated that private economic development can be considered a public use if a government entity thinks it is.

What’s weird is that this decision can be interpreted, in one way, as pro-corporation. Meanwhile, Thomas, dissenting, writes, “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.'”

FYI, Kennedy agreed with the majority, but only based on the specific circumstances of this case. It’s possible that if the facts were a bit different, the decision might have gone the other way.

I don’t know what on earth the majority was thinking with this one.

Upcoming Court Cases

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By the end of the month, the U.S. Supreme Court will have completed its current term (and Chief Justice Rehnquist will very likely have announced his retirement, although I hope not).

Here are the cases yet to be decided this term that I find the most interesting (taken from here – any case that has nothing listed under “Opinion” and does not say “2005-06 term” under “Oral Argument” will be decided this month; the following links provide nice summaries of the cases mentioned as well as links to case materials):

Van Orden v. Perry and McCreary County v. ACLU – These are probably the highest-profile cases remaining and will likely be decided together. They involve whether a government-sponsored display of the Ten Commandments violates the First Amendment.

MGM v. Grokster – The Court will decide whether the distributors of peer-to-peer file-sharing computer software can be held vicariously or contributorily liable for copyright infringement. This will be high-profile as well.

National Cable & Telecommunications Assn., et al. v. Brand X Internet Services / FCC v. Brand X Internet Services – The Court will decide whether it is proper for the FCC to classify cable modem service as an “information service” and not a “telecommunications service” for purposes of regulation under the Telecommunications Act of 1996. DSL is subject to stricter FCC regulation than cable modem service because it is owned by telecommunications companies and is therefore classified as a “telecommunications service.”

In all, there are 26 decisions remaining to be announced by the end of this term. Supreme Court decisions are announced on Mondays and sometimes on Thursdays as well.

There are no gay-rights cases this term, but next term there’s Rumsfeld v. Forum for Academic & Institutional Rights, about whether the federal government can withhold funding from law schools that bar military recruiters from campus. Several law schools bar military recruiters because they say the ban on gays serving openly in the military violates those schools’ non-discrimination policies. See also this article that discusses the case in light of Dale v. Boy Scouts of America.

The Court seems to take up a gay-related case every three or four years. The last one was Lawrence v. Texas in 2003.

Interstate Wine

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The U.S. Supreme Court ruled this morning that a state cannot prohibt wineries located out of state from shipping wine directly to customers in that state. The decision “is expected to increase the sales of wines over the Internet by small, boutique wineries.”

And I love it when things like this happen:

The majority is Kennedy (author), Scalia, Souter, Ginsburg, and Breyer. The dissent is Rehnquist, Stevens, O’Connor, and Thomas.

Scalia versus Thomas! Stevens and Thomas voting together! Dogs and cats living together!

And how often do you see the Supreme Court having to interpret the amendment that repealed Prohibition?

I’ll really have to read the decision.

I Live Here, Too

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I’ve gotten over being depressed. Now I’m just pissed. I’m not moving to Canada; this is my country, too, and nobody gets to tell me to leave. Forty-nine percent of the country voted against W — and probably even more, but thanks to likely voter fraud, we can’t know for sure. And don’t hate the red states — there are plenty of blue-staters in that part of the country. (Except not so much in Nebraska, Kansas or Oklahoma.)

A 51-percent, 3.5-million popular-vote win seems shocking only because Bush lost the popular vote in 2000. In reality, W won the popular vote by the narrowest margins of any candidate since 1976. That’s not a mandate. That’s not some overwhelming voice of the people.

Two out of three Americans are not evangelical Christians. There are more of us than there are of them.

The gay marriage amendments? Read Evan Wolfson’s piece, to which I linked yesterday. Momentum is on our side. Young people are on our side, and they’re our country’s future. Remember — forty years ago, bans on interracial marriage were still legal.

As for the Supreme Court, Lawrence v. Texas was decided 6-3. If Rehnquist and O’Connor had retired and been replaced by archconservatives after Democratic filibusters were overcome, we still would have won Lawrence, 5-4. We must not relax, though. Justice Stevens, please hang on for a few more years. O’Connor, you too.

This is my fucking country, and I’ll be damned if I’m going to let some bigots take it away from me.

The Day After

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What I wrote in my head as I lay in bed at 4:00 this morning:

Half of me wants to scream, half of me wants to cry, and half of me is just numb. That doesn’t make mathematical sense, but it hardly matters in a country that no longer cares about reality.

What a disaster.

Bush won 51 percent of the popular vote, a higher percentage than Clinton ever got. No candidate had broken the 50-percent mark since 1988.

All 11 of the anti-gay-marriage amendments passed, even in Oregon.

Social conservatives Jim DeMint (North Carolina), Tom Coburn (Oklahoma), and John Thune (South Dakota) will now be in the Senate, and probably gay-baiting Mel Martinez (Florida) as well. The Senate will contain 54 Republicans.

Chief Justice Rehnquist is likely dying, so we will soon have Chief Justice Scalia. Moderate Justice O’Connor will probably retire, and liberal Justice Stevens is 84 years old.

The fabled youth vote never showed up. Young people didn’t vote in any greater numbers than last time. As Matt Haughey says, “Fucking stoned slackers. You can never depend on them for anything.”

(Update: Youth turnout actually went up.)

And Bush won the same percentage of gay voters as last time. Absolutely fucking astounding.

Sparky speaks my thoughts.

The Left Coaster writes excellently.

Andrew Sullivan writes about the impact on gays.

I feel reverse schadenfreude. Instead of taking pleasure in others’ pain, I’m taking pain in others’ pleasure. I felt this way in fifth grade, when one of my best friends won both the math and language-arts awards, leaving nothing for me. He was beaming and I was in tears.

I get the message. We’re not wanted here. Fine. I’m ready to secede. Let’s create the Greater Federation of Canada and Former Northeastern United States. It would look something like this. Who’s with me? West Coasters, you can join us too.

Part of me says: We got through the first four years, we can get through the next four.

The other part of me says: Supreme Court. Supreme Court. Supreme Court. That’s 25 years of hell right there.

Last night at around 6:30, before any polls had closed, I turned to Matt, breathed deeply, and said, “Let’s just sit here for a while and appreciate this moment, before any bad news starts coming in.” He looked at me like I was crazy.

What a disaster.

Rehnquist’s Cancer

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What Chief Justice Rehnquist’s cancer means for the election.

Dahlia Lithwick says that it’s doubtful Rehnquist would step down, but:

The possibility of Rehnquist stepping down also crystallizes how oversimplified the recent arguments about the power of Supreme Court appointments really are. Suddenly this “four-seats-to-fill-with-whatever-maniac-he-likes” rhetoric is shown to be at least somewhat lacking in nuance. Because if Rehnquist steps down, and President Bush is re-elected, the 5-4 balance on the current court would remain unchanged. In fact, Bush might arguably have a hard time confirming someone as conservative as Rehnquist in the current Senate climate—meaning that the net effect of a retirement could be a more moderate court, even with Bush in office.

This is why a Rehnquist retirement would mean so much were Kerry to be elected: With the appointment of a liberal or even a moderate replacement, the 5-4 balance on the court would tip dramatically. The possibility of a Roe reversal would virtually evaporate overnight, as would the likelihood of a sea-change in affirmative-action law. It’s a tough argument to make—smacking of that ugly word, “activism.” John Kerry can’t really mobilize voters by saying Bush would replace a staunch conservative with a staunch conservative. He could score a point by saying this is a rare and precious opportunity to replace a staunch conservative with a moderate. But my guess is he won’t. See “activist” above. And whether Kerry really wants to make a campaign issue out of an old man’s possibly terminal illness is doubtful.

Supreme Court Clerks Talk

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Some Supreme Court clerks from the 2000-2001 term, when Bush v. Gore was decided, have talked.

A friend of mine from college and law school clerked for Chief Justice Rehnquist that term. A few months after Bush v. Gore, I e-mailed my friend to ask how it felt to work on that case. He responded that while he couldn’t go into details, it was probably going to be the highlight of his legal career, an experience he’d probably never be able to top or forget. I’ve always envied him for it.

Justice Stevens

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Imagining America if George Bush Chose the Supreme Court

I’d guess that the justices most likely to retire in the next four years would be Chief Justice Rehnquist, Justice O’Connor, and perhaps Justice Stevens.

Here are the general leanings of the current court members:

conservative — Rehnquist, Scalia, Thomas

swing voters — O’Connor, Kennedy

liberal — Stevens, Souter, Ginsburg, Breyer

Clearly, the biggest blow to social liberals would be the loss of Justice Stevens. A Rehnquist retirement wouldn’t change the court that much; an O’Connor retirement would. But the loss of Justice Stevens would be the biggest deal. You don’t hear much about him. He’s currently the oldest justice, at age 84 (he was appointed by Ford in 1975). However, I’ve read that he’s as mentally sharp as ever, and as one of the most liberal of the liberals, I’m sure he wouldn’t want Bush to name his replacement. He’d die on the bench first. (Which I sure hope doesn’t happen.)

If Bush wins, I fervently hope that the Democrats retake the Senate in 2006, if they don’t do so this year.

Thoroughgood

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Thoroughgood

“He said little during the argument sessions, growling occasionally at lawyers who were struggling lamely through their arguments and sometimes training his sarcasm on his own colleagues. During a death penalty argument in 1981, William H. Rehnquist, then an Associate Justice, suggested that the inmate’s repeated appeals had cost the taxpayers too much money. Justice Marshall interrupted, saying, “It would have been cheaper to shoot him right after he was arrested, wouldn’t it?”

Today would have been former Supreme Court Justice Thurgood Marshall’s 93rd birthday. You don’t often hear someone referred to as “a great American” anymore, but he was one; you can read his obituary on the New York Times Learning Network. (I don’t think this part of the website requires registration.)

Every day the New York Times website reprints the obituary of a famous person who was born on that day. There’s a link to it in a gray box entitled “On This Day” about halfway down the page. If you read me regularly, you know that I’m a New York Times junkie, but the paper really does know how to do a good obituary. (Not to get too morbid for you on a Monday morning.) I also did some random clicking and found this online guide to the Old Gray Lady, who now has some henna in her hair.
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