"The Destruction of the Wisconsin Supreme Court," by Lincoln Caplan.

In The New Yorker. I thought you should know.

When addressing a case like the John Doe inquiry, with the election of a controversial governor and now an undeclared Presidential candidate at its core, the Wisconsin Supreme Court should be seen as above the fray, beyond price, and wholly independent. Instead, contrary to the ideal that John Roberts described in [Williams-Yulee v. Florida Bar], all of the Wisconsin justices look a lot like politicians, in particular the conservatives, who came to the bench with the support of powerful and aggressive political groups. Those justices� integrity is compromised, as plainly as if they had personally solicited every dollar that helped elect them � and that helped drag the standing of their court so low.

All judges look like politicians, especially the conservatives. And all New Yorker writers who write about judges look like politicians, especially when they write about conservatives.

ADDED: Amusingly, The New Yorker points me to a March 5, 2012 article titled: "The Storm/Did a governor�s anti-union crusade backfire?" The answer, it turned out, was: no.

"I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex."

So said Chief Justice Roberts, in part of yesterday's oral argument which I discussed in some detail earlier this morning.

I just wanted to write a separate post to beat you over the head with the profound accuracy of the Chief's statement.

The government, in banning same-sex marriage, does nothing to ascertain that couples are sexually attracted to each other.

The Sue that loves Joe could be a lesbian, and the Tom who loves Joe could be heterosexual.

Maybe Joe is a very desirable marriage partner for reasons that have nothing to do with a desire to have sex with him. Maybe he's rich and powerful and has a wonderful circle of friends. This Joe, perhaps, loves to cook and is a great cook, and he's got an extensive wine cellar. Maybe he loves just the kind of movies/sports that Sue/Tom loves, and he keeps up an endlessly entertaining stream of conversation, full of witty observations and howlingly funny jokes. And he's perfectly happy to allow Sue/Tom to pursue sexual adventures. Go right ahead! Have them! And come back home to Joe's delicious late-night supper and drink some of Joe's top-notch wine and you can talk about sex for hours.

The government has no idea, and the government should have no idea.

Updates on the oral argument in the same-sex marriage cases.

At SCOTUSblog, here.

"The [petitioners] had said they were looking to 'join the institution of marriage.' The chief objected that perhaps they were not looking to redefine it, not join it. And he emphasized that he had looked up all the definitions he could find, and it was always a man and a woman..."

"Justice Kennedy said he had 'a word on his mind .. and that word is millennia'... He pointed out that the definition of marriage had prevailed for millennia and it seemed a fast change; on the other hand, he noted that the time between Lawrence and this case was about equal to the time between Brown and Loving -- this raised the question for him of whether this might all be too fast to redefine such a long standing institution."

So Roberts and Kennedy are thinking in terms of redefining the word.

Justice Scalia started a discussion about whether "a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding" and seemed satisfied with the argument that First Amendment rights would protect the minister.

The SCOTUSblog writer notes the contrast between the Justices who stressed "the 'millennia long' definition of marriage" and those who forefronted "the relatively new character of egalitarian marriage." Also, there was "a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece)."

"When I began as a young lawyer in the 1960s, text was an interesting jumping-off point."

"It was sometimes even read from beginning to end. But it was rarely dispositive�. One of the great triumphs of Justice Scalia�s work on the Court over the years � with help from a number of the other justices � was to remind us that text does play an important role, and that we should be spending more time with the text."

Said NYU lawprof Burt Neuborne, talking about his new book, "Madison's Music: On Reading the First Amendment." Alongside him was Justice Sonia Sotomayor, whom he thanked for "her human voice." Is that a compliment? Is this a compliment: "It�s a fun book for someone who's not immersed in the law"? That's what she said about his book.

I got to that NYU page via email that promotes NYU School of Law things to the school's graduates (which include me). I hesitated to link to it, however, because I'm ashamed of the inaccuracy of this sentence:
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"John Roberts is charming and matinee-idol handsome, but does he stand a chance against Ruth Bader Ginsburg with her lace gloves and her questions about society offering skim-milk equality?"

Asks Linda Hirshman in a New Republic article titled "John Roberts' Legacy Problem/Like it or not, liberal decisions are the ones that history celebrates. Just ask Notorious R.B.G."

Hirshman has this quote from Randy Barnett: "We have a media that is so uniformly Democratic, that if you�re a conservative, you�re sort of like a battered spouse... The left controls academia and the law schools and pop culture through Hollywood."

To that, Hirshman adds:

The legal profession�which holds the meetings, conferences, seminars, where so many Supreme Court justices make appearances�also skews liberal... [L]awyers as a group give more donations to the Democrats than the Republicans and to liberal causes rather than conservative causes. This pattern applies at all levels of the profession; as Barnett correctly perceived, elite law professors tend to fall way left on the political spectrum, but even big firm partners give more to D than R. And the pattern does not diminish as you move away from the experience of the Sixties. Younger lawyers actually skew more left than their elders. 

Of course, judges know this. It's in their self interest, if they want to look good in history, to skew left, like the legal academics. You know, I've been here in legal academia since 1984, 9 years before Ruth Bader Ginsburg took her seat on the Supreme Court. She was a federal Court of Appeals judge then and had been since Jimmy Carter appointed her in 1980. And I can remember law professors expressing dismay that she was such a disappointment, that after her first-class women's rights advocacy as a law professor, she'd turned into such a conservative.

Reading the King v. Burwell transcript.

Here's the PDF of today's oral argument. I'm going to read it right now and give my immediate impressions.

1. Justice Alito topped Justice Kagan at page 11, lines 7-13. Kagan had just sprung her elaborate clerks-writing-memos hypothetical, and Alito said "Well... if I had those clerks, I had the same clerks and Amanda wrote the memo, and I received it and I said, This is a great memo, who wrote it? Would the answer be it was written by Will, because Amanda stepped into Will's shoes?" Kagan had to respond to the laughter in the courtroom: "He's good."

2. Justice Sotomayor stumbles at page 16, line 2, after raising a principle of statutory interpretation from last year's Bond case (the chemicals-on-the-doorknob case, where the Court read a federal statute not to criminalize a matter that lay within the traditional powers of the state). She'd just spoken for a page and a half, and the petitioners' lawyer Michael A. Carvin was beginning to explain that this principle had never been applied in the context of a condition on federal spending. Sotomayor interrupted to "Oh, we did it -- we said it last year." But she just meant to repeat her point about Bond, which wasn't about conditional spending.
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