There’s another important point to be made that’s particular to the gay marriage context.  The unwillingness of opponents of gay marriage to have their opposition made public demonstrates the hollowness of the dramatic rhetoric their movement employs.  The “why does this matter to you?” question is a difficult one for opponents of gay marriage, as Jonathan Chait demonstrated last year in The New Republic when he convincingly took apart any argument against gay marriage based on anything beyond simple discomfort with homosexuality.  As much as opponents of gay marriage talk about heterosexual marriage being the backbone of our society and the fight to protect traditional marriage as being the real civil rights battle, the unwillingness to publicly state these views when there could be reprisals shows that they are not taken seriously even within the anti-gay marriage movement.  To the extent that there are actual threats being made against opponents of gay marriage, they cannot be nearly as serious as the threats faced by Civil Rights activists in the 1960s.  But because African Americans actually had their freedom and their welfare at stake, Civil Rights leaders and activists fought for their rights in the most public ways possible, whatever the costs.  If opponents of gay marriage truly believed that allowing gay marriage would have the dire consequences they claim, there would be no shortage of brave activists willing to publicly take this stand and suffer whatever consequences may come.

-AR

- AS

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete. . .While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old. . . the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

-AR

And so I’m sympathetic to arguments against Elena Kagan’s nomination on grounds that the Court is already too urban, too Northeastern, and too Ivy League.  But this column by Kathleen Parker is the absolute worst way to make that argument.  The problem with urban/coastal/Harvard/Yale types is that they’re already overrepresented on the Court, not that they’re somehow less “ordinary American” or “mainstream” than anyone else.  This is one of the most pernicious beliefs driving the conservative movement today, that to be white, rural, and Christian is to be more American than those who are not.  When Bill O’Reilly speaks for and to “the folks,” he’s not addressing the members of Kagan’s synagogue.

This is especially true of the Tea Party movement, and its “we want our country back” rhetoric.  Aside from preposterous theories about his citizenship, claims against the legitimacy of the Obama presidency are driven by the belief that, although Obama won clear majorities of the popular and electoral votes, “real Americans” voted for McCain.  Paul Waldman effectively destroys such claims, pointing out that a majority of the country is urban and reminding us that people in places thought of as quintessentially American, like Nebraska, are as far to the right of the political center as people in New York are to the left.

No single place or person could effectively stand in for America; there is no “mainstream.”  New York is no more and no less American that Mayberry.  But while the urban centers of the Northeast and West Coast are no less American than the small towns of the prairies, they are not all of America, and we should worry if they end up being the only areas represented on a body as powerful as the Supreme Court.

-AR

As a result of his “discomfort,” Roberts is considering taking the Scalia-Thomas route and just not going next year.  “I’m not sure why we are there,” he says.  Unless Roberts is talking about why he has a place on the Supreme Court, I do not share his confusion.  You’re there, Roberts, because you were invited.  And it’s not like being invited to an Edward Fortyhands party — this is a Constitutionally-mandated address by the President of the United States to both houses of Congress.  It’s really quite an honor that they let your sorry self in the door after that Citizens United debacle, if you ask me.

As for the “political pep rally” comment, that begs the question: who are the “cheerleaders,” exactly?  Roberts’s metaphor is both offensive and partisan.  After all, whether or not there is a “big game” coming up, the president is required (again, by the Constitution) to give a report to Congress.  And where is the crazed excitement for a common cause that characterizes a pep rally?  From where I sat behind the tube, the “pep” of the State of the Union was distinctly muted, and politically divided.  But by calling it a “pep rally,” Roberts impliedly paints Obama as the cheerleader to Bush’s dignified statesman — a distortion of reality perhaps appropriate to Roberts’s status as an elite, appointed-for-life justice.

And what about the partisan-pep-rally-of-one that was Justice Alito’s inappropriate reaction at the State of the Union?  Granted, the president’s statements were louder than the mouthed words of Justice Alito.  But then again, the president had, you know, the microphone as he was the official speaker.  Alito, by contrast, was just supposed to sit there quietly for once in his long life, isthatsomuchtoask?

It seems clear to me that, like most 5-year-olds, Roberts is simply upset that someone has told him that he is wrong.  The thing is, Roberts, you are wrong.  But I don’t think anyone will be that upset if you don’t show up next year.

- AS

The official explanation for bringing the case now, more than 10 years after the Ninth Circuit upheld the law and the Supreme Court took a pass, is that “the legal environment has changed” considering the result in Grutter v. Bollinger.  But seriously, that case was decided in 2003!  That was even before Roberts and Alito happened to us!  Back then, we didn’t even know it was possible to put two different flavors of Doritos in one bag!  (Never forget.)

Anyway, I predict doom and gloom for this legal challenge.  The advantage of the time that’s passed is that the plaintiffs can make out a better claim of disparate impact by showing the dismal state of minority enrollment at UC schools (I’m a two-time UCLA student post-Prop 209, and I can attest: dismal).  Unfortunately, disparate impact apparently no longer exists in Supreme Court jurisprudence (see that firefighters case), and taking a stand based on Grutter is like what the Coyote would do right before he realized he had chased the Road Runner a little bit past the cliff’s edge.  That case was a challenge by a white student miffed at affirmative action in admissions (aka Ward Connerly’s protege), not the other way around, and the admissions policy there was upheld on narrow grounds that had nothing to do with a historical understanding of race-based subordination.  No way does will that case be applied to overturn a voter referendum that has been in place since the time when Garth Brooks was cool.

By the way, one of the attorneys for the group bringing the challenge is named George Washington.  (I bet he gets a lot of “crossing the Potomac” jokes.)

But best of luck to you, George Washington & Co.  Hopefully you make it in spite of the odds.

-AS

Rather than grapple with the crisis in American democracy that’s been laid bare by the events of the last week, I’m just going to quote liberally from a fairly perfect summation from James Fallows about why our government is so fucked up:

Fifty-nine senators, representing. . . some 63 percent of the American public, accompanied by a large House majority and a president recently elected with 70 million votes, cannot enact changes in the nation’s health-care system that have been debated for decades.
A 59-41 margin is not enough for a change of this magnitude.

Five Justices of the Supreme Court, outvoting their four colleagues, can work a fundamental change in election law that goes far beyond the issues presented by the parties to the case. . . Courts always have the option of deciding cases narrowly or broadly. The breadth of this one, reaching far beyond the merits of the case so as to enact the majority Justices’ views, is staggering even to a non-lawyer like me. A one-person margin is enough for a change of this magnitude.

In the least accountable branch of government, the narrowest margin prevails; in our elected legislative branch, substantial majorities are neutered.

So what’s next for America, and health care reform, and President Obama, and corporations, and the Democratic Party, and David Letterman? At the moment, I’m too disheartened to offer any ideas or predictions. But I promise to at least be more diligent about commenting on the thoughts and actions of others. At least until finals starts.

-AR

It came out in oral argument that one question asked firefighters whether fire equipment should be parked “uptown, downtown or underground when arriving at a fire” even though New Haven doesn’t have an uptown or downtown. (Apparently some of the questions were based on questions relevant to New York City firefighters.) Not that that matters, since everyone knows you park your equipment underground when arriving at a fire.

In lieu of evidence to the contrary, I like to imagine the New Haven test was a hybrid of Stuff White People Like and a discriminatory SAT question, and looked something like this:

1. You arrive at a yacht that is engulfed in flames in the marina. The yacht owner tells you his wife is trapped aft. The yacht owner means his wife is trapped:

A) In the front of the yacht.
B) In the back of the yacht.
C) On the left side of the yacht.
D) On the right side of the yacht.
E) Under the yacht.

2. A panicked homeowner asks you to save “the greatest Bruce Springsteen album in existence” from the upstairs bedroom of his burning home. When you get upstairs you see five Springsteen albums. Which do you grab?

A) Darkness on the Edge of Town
B) The Rising
C) Born to Run
D) The River
E) Nebraska

-AS

The Scalia-led majority held that the 6th Amend. Confrontation Clause was violated by the prosecution’s offering into evidence a lab technician’s “certificate” attesting to the fact that a substance was cocaine in lieu of calling the tech as a witness.

DA offices are calling the decision a train wreck. Since government testing labs are way behind on their testing already, the delays will inevitably get a lot worse if the lab techs who do the tests have to spend a lot of time in courthouses waiting to testify. Especially in less-populated states where one or two labs may do testing for the entire state, and especially when substances are sent to FBI labs in Wash. DC for analysis, the financial ramifications may put prosecutions as far out of reach for the government as Bentley cars are for law professors.

-AS