"We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prose�cutions under 18 U. S. C. �875(c)."

"Save two, every Circuit to have considered the issue�11 in total�has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. Adopting the minority position, Elonis urges us to hold that �875(c) and the First Amendment require proof of an intent to threaten. The Government in turn advocates a general-intent approach. Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for �875(c). All they know after to day�s decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough."

Writes Justice Thomas, the sole dissenter in Elonis v. United States (PDF) one of this morning's new Supreme Court cases.
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The Supreme Court will answer a key question about the meaning of "one person, one vote."

Legislative districts must have roughly equivalent populations. That's been Equal Protection law for a long time. But how do you count the population? Do you include all residents or just those who are eligible to vote � or are states free to use either count?

Almost all state and local governments draw districts based on total population. If people who were ineligible to vote were evenly distributed, the difference between counting all people or counting only eligible voters would not matter. But demographic patterns vary widely.

If the challengers succeed, the practical consequences would be enormous, Joseph R. Fishkin, a law professor at the University of Texas at Austin wrote in 2012 in The Yale Law Journal.

It would, he said, �shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.�

"One person, one vote" sounds like a reference to the voters, but that phrase comes from the court cases, not the Constitution itself. You could also think in terms of equality in the number of persons each representative represents. And if we're going to think in terms of voters, why would we look at the number of persons eligible to vote as opposed to the number of persons who actually vote? We know that voter turnout varies geographically.

Eric O�Keefe on the Supreme Court's denial of cert. in the John Doe investigation case.

In the email:

Spring Green, Wisconsin (May 18, 2015) � Eric O�Keefe, a director of the Wisconsin Club for Growth and co-petitioner with the Club in the case O�Keefe v. Chisholm, issued the following statement regarding the Supreme Court�s decision today declining to hear their appeal:

�The Supreme Court�s decision not to hear our claims does not change the fact that the only court to review the John Doe investigation found it to be an abuse of civil liberties and First Amendment rights. The appeals court said that any attempt to hold John Chisholm and his associates accountable should proceed in state courts, and that's exactly what I expect to happen.�

The Supreme Court denies cert. in the John Doe case � O'Keefe v. Chisholm.

SCOTUSblog reports.

ADDED: Here's the post from last month "The Wall Street Journal urges the U.S. Supreme Court to take the free-speech case arising out of Wisconsin's John Doe investigation."

I thought the Supreme Court should take cert., but it's important to see that this case was about a federal court interfering with proceedings in state court, and at this point, the Wisconsin Supreme Court is hearing the state court case. The federal court abstained, and one of the reasons for abstention is that the state court may choose an interpretation of the state statute that would avoid the federal constitutional question. The Supreme Court's denial of cert. doesn't mean that the 7th Circuit got the abstention doctrine right.

"If elected president, I will have a litmus test in terms of my nominee to be a Supreme Court justice."

"And that nominee will say that we are all going to overturn this disastrous Supreme Court decision on Citizens United because that decision is undermining American democracy. I do not believe that billionaires should be able to buy politicians."

On Thursday, Clinton also reiterated her support for a constitutional amendment that would overturn Citizens United, a long-shot effort that is nonetheless popular among Democratic activists.

"She said she is going to do everything she can," the attendee said. "She was very firm about this � that this Supreme Court decision is just a disaster."

My thoughts:

[ADDED: FIRST, let me be clear that quote that begins this post is something Bernie Sanders said on one of the Sunday talk shows. The blocked and indented quote is from Hillary, and it's something she said to donors at a closed meeting that was leaked by an attendee whom the Washington Post is keeping anonymous. The Post relates that Hillary "got major applause when she said would not name anybody to the Supreme Court unless she has assurances that they would overturn" Citizens United and calls this a "pledge to use opposition to Citizens United as a litmus test for Supreme Court nominees." I don't know that Hillary ever used the term "litmus test," and it sounds as though she's under pressure because of what Sanders had said.]

1. I don't believe this pledge. I think she's saying this because she thinks it's politically advantageous, so: Why does she think that?

2. Normally, what Presidents and presidential candidates say is that they don't have any "litmus test." It's been considered politic to act as though you are choosing Justices in a soberly meritocratic fashion, posing as if you value judicial independence and cases decided according to the law. These Presidents and presidential candidates may nevertheless have a litmus test, of course. They just choose not to say so.

3. Citizens United! is an incantation, but who is it for, who responds to it and why? Very few people have much understanding of what the case was actually about, so incanting Citizens United! is a pretty idiotic approach to politics. I suspect Hillary Clinton has a good deal of contempt for the little people of America whom she needs to like her and who did not find her likable enough last time.

4. One thing Citizens United was about was a movie about Hillary, "Hillary: The Movie":

Hazing Justice Kagan.

In The American Prospect's long article about Justice Kagan, here's how she describes the role of the "Junior Justice" (i.e., the Supreme Court Justice with the least seniority) in the conferences (where only the Justices are present):

"So somebody has to do two things. The first is that somebody has to take notes, so you can then go out and tell people what just happened, and I take notes. That�s the Junior Justice�s job. The other thing is that you have to answer the door when there�s a knock on the door. Literally, if there is a knock on the door and I don�t hear it, there will not be a single other person who will move. They just all stare at me until I figure out, �Oh, I guess somebody knocked on the door.� These two jobs, the note-taking and the door-opening�you can see how they can get in the way of each other, right? You might say, what do people knock on the door for? Why does anybody knock on the door? Knock, knock�I�m not going to name names��Justice X forgot his glasses.� Knock, knock, �Justice Y forgot her coffee.� There I am, hopping up and down. I think that�s a form of hazing, don�t you?"

IN THE COMMENTS: First, some people aren't picking up the good humor in Kagan's storytelling. But more importantly, Michael Arndorfer says: "You blogged this in November. Only also tagging it as bullying." What? This is a new article. Is the new article passing along an old quote of Kagan's? I found the post from last November: "Hazing and hunting on the Supreme Court." It has a very similar, but not exactly similar quote (from People Magazine):

"I take notes as the Junior Justice � and answer the door when there's a knock. Literally, if there's a knock on the door and I don't hear it, there will not be a single other person who will move. They'll all just stare at me. You might ask, Who comes to the door? Well, it's knock, knock, 'Justice X forgot his glasses.' And knock, knock, 'Justice Y forgot her coffee.' There I am hopping up and down. That's a form of hazing, right?"

2 questions: 1. Did The American Prospect lift the quote from People (and change it) or does Kagan keep retelling the story? Answer: The latter, probably. It's a better explanation of all the little differences. 2. Should I be ashamed of myself for not noticing I'd already blogged this or proud of the consistency of my taste in bloggability and method of blogging? Answer: Both!

ADDED: My answer to Question 1 failed to account for the quirks of transcriptions from recorded speech to text. This is a topic about which Janet Malcolm wrote in the important book "The Journalist and the Murderer" (the best book about journalism that I've ever read):
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"Nary a 'no' vote in Louisiana House on resolution urging Ginsburg, Kagan recusal in gay marriage case."

Reports The Times-Picayune.

Justices Ruth Bader Ginsburg and Elena Kagan "have each engaged in public conduct suggestive of bias," reads Louisiana House Concurrent Resolution 85, sponsored by state Rep. Valerie Hodges, R-Denham Springs. In engaging on the issue of same-sex marriage, the justices have "thus demonstrate(d) an inability to be objective," and should therefore withdraw from the Obergefell v. Hodges case, the resolution says.

Embarrassing. 

And why Ginsburg and Kagan in particular? What was the "public conduct suggestive of bias"? Just because you can predict in advance where their thinking on a legal issue will lead them doesn't mean they are any more biased and bereft of objectivity than anyone else on the Court. In fact, unpredictability is more suggestive of bias. Consistency in legal reasoning, case by case and in expressions about law, suggests that you are following the norms of constitutional interpretation.

ADDED: A commenter says that the "public conduct" is officiating at same-sex wedding ceremonies. I'm seeing this at The Hill:

�Justices Ginsburg and Kagan, knowing full well that unique legal issues regarding the definition of marriage would soon come before them, deliberately officiated at so-called homosexual wedding ceremonies creating not merely the appearance of bias, but an actual and blatant conflict of interest,� [said Scott Lively, president of Abiding Truth Ministries].

�In my personal view they have committed an unparalleled breach of judicial ethics by elevating the importance of their own favored political cause of gay rights above the integrity of the court and of our nation.�

I don't see how participating in a wedding ceremony is a statement that you think there is a constitutional requirement that states must recognize same-sex marriage. Presumably, same-sex marriage was either already recognized in the place where Ginsburg/Kagan was performing the ceremony or it was a ceremony that wasn't recognized as creating a legal marriage. That probably shows they approve of same-sex marriage, though what Ginsburg did was perform a wedding for a former law clerk. Maybe she just treats all her former law clerks the same.

Anyway, doing something doesn't mean you believe you have a right to do it, and it would be utterly unworkable to say judges who do something must recuse themselves in cases about whether there is a right to do something. Should a judge who's had an abortion have to recuse herself in abortion cases? Should a judge who has given a speech have to recuse himself in a free speech case?

ALSO: A separate question is: Let's assume that doing something does equal a statement that one has a right to do it. Is belief that a right exists bias? I can't see that. I think the argument is more that a decision about the law was arrived at too early. But that doesn't make sense. Judges are always thinking, writing, and speaking about the law, forming beliefs about the answers. There's nothing wrong with that. I know there's this idea that Supreme Court Justices shouldn't express their conclusions about cases that might later come before the Court. That's the stock answer to every other question at confirmation hearings, though the Senators doing the questioning don't seem to think there's anything wrong with repeatedly inviting nominees to tip their hand.

There was a famous instance of a recusal by a Justice who tipped his hand about a pending case. Back in '03, Justice Scalia dropped out of the case about whether "under God" in the Pledge of Allegiance violated the Establishment Clause:

According to press accounts, in his talk to the Knights of Columbus, Justice Scalia adverted to the lower court rulings in the Newdow dispute twice -- both in his prepared remarks and in response to a protestor in the audience.

First, Scalia mentioned prior rulings by his own Court indicating that government could not favor any religious sect or religion over non-religion. He observed that such rulings were "contrary to our whole tradition, [and] to 'in God We Trust' on the coins," and said that these rulings had created inconsistencies that lent "some plausible support" to the lower court rulings in Newdow.

Second, when Scalia saw a protest sign in the crowd, he remarked: "The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." Scalia thus arguably implied that the elimination of the "under God" phrase could not be accomplished by any Court -- even his own.

Was that recusal required or even advisable? I don't think so. And I'm suspicious. I think the recusal served the interests of conservatives. As it happened, the Supreme Court weaseled out, but if the Court's liberals had not figured out a way to avoid the merits � they used standing doctrine � they might have had to say that "under God" violated the Establishment Clause, and that would have been very useful to conservatives in the 2004 presidential election. It was well-remembered that in the 1988 election, George H.W. Bush had battered Michael Dukakis over the Pledge of Allegiance:

With President Reagan at his side in a raucous campaign rally here, Vice President Bush intensified his argument with Michael S. Dukakis today over the Pledge of Allegiance. He said he would have signed a bill that Mr. Dukakis vetoed in 1977 requiring teachers to lead their classes in the pledge.

'What is it about the Pledge of Allegiance that upsets him so much?'' Mr. Bush said of Mr. Dukakis, as an enthusiastic crowd roared its agreement. ''It is very hard for me to imagine that the Founding Fathers - Samuel Adams and John Hancock and John Adams -would have objected to teachers leading students in the Pledge of Allegiance to the flag of the United States.''

Newdow was a rich political opportunity, and I'm sure Scalia knew that. So one could say that his recusal was biased, since he would have voted on the side that would not have leveraged the conservative presidential candidate.

"The Court�s twistifications have not come to an end; indeed, they are just beginning.... The First Amendment is not abridged for the benefit of the Brotherhood of the Robe."

Writes Justice Scalia, dissenting from the Supreme Courts decision today in Williams-Yulle v. The Florida Bar (PDF), which upheld the Florida Code of Judicial Conduct prohibition on the personal solicitation of campaign contributions by judicial candidates.

It's notable that the Court applies strict scrutiny. (The Florida Bar had argued that the Court should use a lower level of scrutiny that would only require the limit on speech to be �closely drawn� to match a �sufficiently important interest." That test, the Court said, applies to freedom of political association claims, not to free speech claims like the one presented here.)

But Justice Scalia (who was joined by Justice Thomas) objected to the way the Court applied strict scrutiny:
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"New computer-driven research suggests that Supreme Court justices are getting grumpier, according to a new study by scholars at Dartmouth and the University of Virginia."

"This analysis was based on the percentage of positive words versus negative words. In addition, modern justices tend to produce more words and have a lower grade level than their predecessors."

Oh, jeez. Here we go again: If you use more periods and fewer semicolons, the computer will conclude that you are writing at a lower grade level. That's garbage. See how I just wrote a sentence on a dramatically lower grade level than the previous sentence? "Computer-driven" doesn't mean sophisticated. It just means that lots of data was crunched. Things that could be counted and that the researchers wanted to count were counted on a grand scale.

The authors included 107 justices through 2008 and ranked them based on negative words (�two-faced,� �problematic�) and positive words (�adventurous,� �pre-eminent�). The high court�s first chief justice, John Jay, ranked number one with a score of 1.55 percent friendliness rating. Numbers 103 through 106 are current members of the court, including Anthony Kennedy, Clarence Thomas, Stephen Breyer, and Samuel Alito. Antonin Scalia earned the number 98 spot with a score of -0.69 percent friendliness.

Quite aside from whether we should assess a judge's friendliness/grumpiness based on which words he puts in the formal justification of his legal decision that we call an opinion, who determined which words should count as positive and which as negative? Why is "adventurous" considered positive � especially as you look at material that was written over a period of 200+ years? Some of the older meanings of the word are negative: "Full of risk or peril; hazardous, perilous, dangerous... Prone to incur risk; excessively venturesome; rashly daring" (OED). If a justice in 1800 called an argument "adventurous," was he saying something nice?

I suspect that negative words proliferate when justices indulge in writing long dissenting opinions. That doesn't necessarily mean they are grumpy or unfriendly. It might have more to do with feeling free to express oneself in somewhat emotive language, and that may have become more the style as the years wore on. If we feel free to express emotion, we give the language analysts more emotive words to count, and then they can calculate a ratio of positive to negative. But how can we compare that to what was written long ago, when judges may have favored concealed or processed emotion? There will not only be less to count but also a kind of caginess and subtle sarcasm and irony that the computer can't recognize. To take an example from a famous old case, what would a computer do with "the judges of the State courts are, and always will be, of as much learning, integrity, and wisdom as those of the courts of the United States (which we very cheerfully admit)"?  "Cheerfully" is such a positive word, but, in context, it's no, and there's certainly no reason to think that the Justice who wrote it was exuding any sort of friendliness.

But this is the kind of study that gets reported, the kind of is-Scalia-mean stuff the public loves.

The Wall Street Journal urges the U.S. Supreme Court to take the free-speech case arising out of Wisconsin's John Doe investigation.

You can get to the editorial here:

On Friday the Justices will consider whether to hear O�Keefe v. Chisholm, a Section 1983 civil-rights lawsuit brought by Wisconsin Club for Growth director Eric O�Keefe against Milwaukee District Attorney John Chisholm and other prosecutors. The suit charges the prosecutors with a multi-year campaign to silence and intimidate conservative groups whose political speech they don�t like....

The 7th Circuit's decision was based not on the merits but on deference to the ongoing proceedings in state court, which theoretically could have responded to the federal constitutional questions. That is: the Younger abstention doctrine. I discussed the 7th Circuit opinion when it came out last September, saying:

There is an exception to the Younger doctrine, which the plaintiffs tried to use here, that applies when the federal rights claimants show that the prosecutors in state court are proceeding in "bad faith." The question is whether the prosecutors are really attempting to secure a valid conviction or whether they are simply using the legal process to harass the federal court plaintiffs. The 7th Circuit panel found some perplexity in the free speech issues about campaign coordination:

The Supreme Court has yet to determine what �coordination� means. Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person�s election? What if the speech implies, rather than expresses, a preference for a particular candidate�s election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician�s committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions.

This is a nudge to the state judge to shut down the investigation, and yet there is something very disturbing about this ambiguity in free speech law and the leeway it gives prosecutors to stall a political group throughout a campaign season. I'd like to see the Supreme Court make this clear....

Back to the WSJ editorial:

Specific injustices aside, the U.S. Justices should also hear the case because it is part of a larger legal effort to subvert their 2010 Citizens United ruling. The game is to use the theory of �coordination,� which allows vast investigations to be instigated on the thinnest evidence, to sweep issue speech back into the regulatory umbrella of campaign-finance law.

The liberal Brennan Center for Justice is pushing regulations coast to coast that would reduce protections for issue speakers and encourage �coordination� probes. The Wisconsin case is an opening for the Court to tell prosecutors and regulators they must tread carefully when rights of free association are involved.

Wisconsin�s prosecutorial machinery has abused the law to silence disfavored political speech. This one is made to order for Supreme Court review.

I agree. The Court needs to take this case. Quite aside from all the substantive problems, the idea of deferring to the state courts is supposed to be based on the ability of the state courts to step up and deal with the substantive problems themselves. The 7th Circuit decision came out 7 months ago. Where's the action from the state courts? If there are indeed free-speech violations, they've been going on for 3 years. It's one thing for federal courts to refrain from jumping into state court proceedings that might do a decent-enough job of enforcing federal rights. But here, these proceedings have worked to suppress political speech for 2 election cycles and beyond. It's quite shocking.

"Supreme Court respects Fourth Amendment, protecting meth heads."

The headline at Kos.

Yes, this one breaks down mostly as you'd expect, if you follow the Court on these matters.  Justice Ginsburg wrote the opinion of the Court, including the Chief Justice and Justices Scalia, Breyer, Sotomayor, and Kagan.  Yes, they acknowledge, officers can do additional tasks which are required for their safety, or which don't prolong the stop, but that's where the line is drawn:

Traffic stops are �especially fraught with danger to police officers,� so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely. On-scene investigation into other crimes, however, detours from that mission. So too do safety precautions taken in order to facilitate such detours. Thus, even assuming that the imposition here was no more intrusive than the exit order in Mimms, the dog sniff could not be justified on the same basis. Highway and officer safety are interests different in kind from the Government�s endeavor to detect crime in general or drug trafficking in particular.

But what if they do that search really really quickly, asks Eric Holder? No!, responds the Court....

There are 3 dissenters: Kennedy, Thomas, and Alito.

"One virtue of appointing federal appellate judges to the Court is that these highly judicialized folk are already masters at applying Supreme Court doctrine."

"After all, this is what circuit-court judges do every day: they study and apply what the Supreme Court has said about one legal issue or another. One problem, however, is that Supreme Court precedent can be dead wrong. Sometimes, in fact, it is baloney. And lower-court judges, who daily slice and eat this doctrinal baloney, may be ill-equipped to see it for what it is. Specifically, they may be inclined to think that judges are more right than they really are, and other branches of government, more wrong. A lower court�s job is to follow the Supreme Court�s precedents, whether right or wrong. But the Supreme Court�s job, in certain situations, is to correct its past mistakes�to overrule or depart from erroneous precedents. (Brown famously and gloriously abandoned Plessy v. Ferguson�s malodorous 'separate but equal' doctrine.) Someone who has not spent his or her entire life reading Supreme Court cases � who has instead spent time thinking directly about the Constitution and also spent time in a nonjudicial branch of government with its own distinct constitutional perspectives and traditions � may be particularly good at knowing judicial baloney when he or she sees it."

Writes lawprof Akhil Reed Amar in "Clones on the Court/A Supreme Court that once included former senators and governors is populated today by judges with identical r�sum�s. Here's why that's a mistake."

"The Supreme Court is giving a former UPS driver another chance to prove her claim of discrimination after the company did not offer her lighter duty when she was pregnant."

"The vote was 6-3 in Young's favor. Justice Stephen Breyer wrote the majority opinion."

The outcome reflects a "middle ground" that Justice Elena Kagan suggested during arguments in early December. Courts must now re-examine Young's case with a more accepting view of the discrimination claim. UPS and other employers facing similar suits still are able to argue their policies were legal because they were based on seniority or some other acceptable reason.

ADDED: From SCOTUSblog:

The Court appears to reject both sides' arguments about the meaning of the Pregnancy Discrimination Act.... The Court chooses an interpretation of its own. The plaintiff, a pregnant woman, under the Court's approach will be required to show that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that it did accommodate others similar in their ability or inability to work.

So, apparently, it's a minimalist, moderate approach attuned to the particular circumstances of this case. The PDF of the opinion is here.  The dissenters are Justices Scalia, Thomas, and Kennedy. Kennedy seems like the interesting vote. Let's read that. Kennedy also joins Scalia's dissent, which he says he did because  "[m]any other workers with health-related restrictions were not accommodated either," and because "there is no showing here of animus or hostility to pregnant women." But he writes his own separate opinion to associate himself with the "societal concern" about the particular problems of women in the workplace. Pregnancy can be "serious disadvantage." It's "an issue of national importance." And there are a lot of statutes that "honor and safeguard the important contributions women make to both the workplace and the American family." Please don't think Justice Kennedy lacks empathy toward the interests of women!

The Supreme Court refuses to hear the Wisconsin voter ID case, which will now go into effect.

"The Supreme Court�s decision not to hear the case was a surprise, as the court last year temporarily blocked the law for the November election, and voters were not required to show photo identifications in order to vote," writes Adam Liptak in the NYT.

A three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, upheld the law, reasoning that it was similar to one from Indiana that the Supreme Court had sustained in 2008 in Crawford v. Marion County Election Board.

The full Seventh Circuit deadlocked 5 to 5 on a request to rehear the Wisconsin case, drawing a sharp dissent from Judge Richard A. Posner, who had written the 2007 appeals court opinion upholding the Indiana law, later affirmed by the Supreme Court.

Civil rights groups had hoped the Supreme Court would use the Wisconsin case, Frank v. Walker, No. 14-803, to reconsider its 2008 decision....

"Why should we as Texas want to be reminded of a legalized system of involuntary servitude, dehumanization, rape, mass murder?"

Said a state senator at a hearing over a specialty license plate proposed by the Sons of Confederate Veterans:



The plate was rejected, and today, the U.S. Supreme Court hears argument on whether that rejection violated the First Amendment.
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"The Supreme Court now has a chance to set something right in the voting-rights area."

Says Linda Greenhouse, pressuring the Court to take the case about the Wisconsin voter-ID law � which was upheld by a 7th Circuit panel. The vote to rehear the case by the full 7th Circuit court failed 5 to 5, with the eminent Judge Posner dissenting at length.

What seemed most significant to Judge Posner was what he called the �changed political culture in the United States� in the years since the Supreme Court took a benign view of voter ID [in Crawford v. Marion County Election Board]. �All the strict photo ID states are politically conservative,� he wrote, illustrating the point with a map and a �political makeup� list of the nine strictest states, all with Republican legislatures. The claim that photo ID was necessary to deter or catch voter-impersonation fraud was, Judge Posner wrote, �a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.�

He added: �As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it�s a problem turn it into one? If the Wisconsin Legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?�

The Wisconsin Attorney General Brad D. Schimel, in a brief opposing Supreme Court review, said: "It is not this court�s job to referee a debate between the Seventh Circuit panel and Judge Posner," which Greenhouse admits is a good line, even as she bashes the brief as "weak on its facts, to put it charitably."

A proposed Women-of-the-Supreme-Court Lego set is rejected as a violation of Lego's policy against "politics and political symbols, campaigns, or movements"...

... which prompts NPR to delve into whether what the Supreme Court does is (or looks like) politics:

"I honestly understand having a policy in place like that," said [science journalist Maia Weinstock, who designed the set]. But Weinstock said she looked at the policy before submitting and didn't think that her project was political.

"The U.S. Supreme Court is supposed to be separate from political considerations," she said. "People are appointed for life specifically so that they don't answer to the changing whims of politics."

Of course, that's especially silly when you are celebrating the presence of women on the Court. They are there because Presidents appointed them, and it's obvious that the final selection from the pool of qualified candidates is political. Ronald Reagan had made it a campaign promise that he would appoint the first woman to the Supreme Court. And when has any President simply nominated the person with the best judicial mind or some such entirely neutral concept?
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"We have come to a strange place in our separation-of-powers jurisprudence."

"Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question�indeed, the primary question the parties ask us to answer�is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom."

So begins the concurring opinion by Clarence Thomas in the just-issued Department of Transportation v. Association of American Railroads. 

Here's Sasha Volokh with some detail on the case, in which he'd filed an amicus brief:

I argued in my brief that, regardless whether Amtrak is public or private, the delegation is fine under conventional non-delegation doctrine: Currin v. Wallace (1939) validated a delegation to a private actor, and so the usual �intelligible principle� test applies. Under that test, the delegation is valid because Amtrak�s power is sufficiently constrained by the requirement that it act to maximize profits....

[The majority Court decided] the case based on the boringest, most Amtrak-specific grounds... Justice Alito�s concurrence is interesting and deserves a separate post. Justice Thomas�s concurrence in the judgment provides the complete rethinking of the non-delegation doctrine on originalist grounds....

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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"Chilling comment on Adam Liptak's NYT piece on the South Carolina employment benefits lawyer who focused attention the statutory text that might wreck Obamacare."

Liptak's article about Thomas M. Christina is titled "Lawyer Put Health Act in Peril by Pointing Out 4 Little Words":

�I noticed something peculiar about the tax credit,� he told a gathering of strategists at the American Enterprise Institute.... He pointed to four previously unnoticed words in the health care law... They seemed to say its tax-credit subsidies were limited to people living where an insurance marketplace, known as an exchange, had been �established by the state.�...

�Resistance is futile,� Mr. Christina said at the 2010 Washington conference, referring to state officials. �You can�t get re-elected if you turn down free money that would otherwise have been paid as tax credits to your citizens.�...

Mr. Christina did not anticipate that the Internal Revenue Service would in August 2011 propose and in May 2012 adopt regulations interpreting the law to allow subsidies in all 50 states, including those where the federal government ran the exchanges.

37 states did turn down the money and the feds stepped in and set up exchanges in those states and offering the subsidies even though these exchanges were not literally "established by the state." So now there's a case in the Supreme Court, to be argued tomorrow, which would take away the subsidies in those 37 states.

There are 709 comments on Liptak's article right now. I don't hold the NYT responsible for all the comments. I certainly don't vouch for what my commenters say, but I would take this out if I saw it in my comments. In fact, I'm only showing a screen shot because I don't want to create searchable text here:



There's only that one pushback comment from NYHuguenot � which itself goes too far � and it only arrived 11 hours after Cold's chilling remark, which has 11 thumbs up. I read Cold's comment in the middle of the night and hit the "flag" icon but I couldn't bring myself to check any of the options. "Inflammatory" and "Personal Attack" seemed closest but not precisely apt. I decided to blog about it here instead. It's evil to waft the suggestion of a violent attack. It might influence someone, though it's certainly not an imminent enough incitement to support arresting Cold. It's evil, but it's also ludicrous for Cold to project her political will � her desire to preserve the legislation � onto the seriously ill, as if they'll use their waning hours on earth to go out on an attack � they've got nothing to lose � and they'll fixate on some lawyer who noticed something in a 900-page statute that was so terribly important and yet so miserably unread.