United States Supreme Court

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My Supreme Court Fantasy

One of my friends asked if she would go to hell because she was glad that Antonin Scalia was dead.  I have mixed feelings.  First, I’m very sad for his family as sudden death is always difficult.  On the other hand, I am happy he is no longer a factor on the Supreme Court.  Justice Ruth Bader Ginsberg wrote on the the nicest tributes I’ve seen.  This is from Vox.

So it’s no surprise that of all the tributes to Justice Scalia, who died Saturday of an apparent heart attack at the age of 79, Justice Ginsburg’s is uniquely moving. It’s a tribute to Scalia as an interlocutor, a fellow opera lover — including a reference to the opera Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportions, which debuted in 2015 — and a “best buddy.”

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: ‘We are different, we are one,’ different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

So my fantasy is imagining Justices Ginsburg, Sotomayor, and Kagan joined by a Justice Amy Klobuchar.  What a quartet that would be!

Patrick Condon writes in the Minneapolis Star Tribune

U.S. Sen. Amy Klobuchar is likely to mix it up in the coming political brawl in Washington around replacing Supreme Court Justice Antonin Scalia, and not just because her own name has again surfaced as a potential high court nominee.

Klobuchar

Klobuchar sits on the Senate Judiciary Committee.  This can be a plus because she has worked with all the Republican members.

Obama said late Saturday that he intends to try to fill the vacancy “in due time.” It is already shaping up to be an epic battle as Obama has been handed the rare chance to swing the ideological balance of the court, where Scalia served as one of the most reliably conservative voices in the 5-4 majority.

As Republicans who control the U.S. Senate vow to block Obama, the president will look for judiciary committee allies like Klobuchar and Franken. But Klobuchar, an attorney and a former elected prosecutor, may first be considered as a prospect.

“I think there’s a bunch of reasons she makes sense,” said Norman Ornstein, an expert on Congress and U.S. politics at Washington’s American Enterprise Institute, who was touting Klobuchar’s case on Twitter over the weekend. “I think there’s a substantive argument for her, and a political argument for her.”

…

Ornstein said by choosing a U.S. senator, Obama could make it a harder for Senate Republicans to block a trusted colleague for the entirety of 2016. And he suggested it might be a good time to reverse the recent presidential trend of only picking judges.

“There was a long tradition of selecting people who had been in public life, gone through elections and served in legislatures or executive office,” Ornstein said.
 Chief Justice Earl Warren and retired Justice Sandra Day O’Conner are two examples cited.
President Obama may ultimately decide that Klobuchar is too political an appointment and we don’t know if she would even be interested, but I can dream of the Mighty Four on the Supreme Court.
Photograph:  Twitter.com
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Judge Moore and Justice Thomas and marriage equality in Alabama

I guess that Alabama Supreme Court Chief Justice Roy Moore is taking his cues from Supreme Court Justice Clarence Thomas’ dissent instead of from the actual ruling in which the majority of the United States Supreme Court refused to stay a District Court ruling that allowed the state to become the 37th state to allow same – sex marriages.  According to the Washington Post story, Justice Thomas wanted a stay.

The court is months away from hearing arguments in a landmark case about whether states are free to ban such unions. But Thomas said a majority of the justices may have already made up their minds, as reflected by the court’s “indecorous” decision Monday morning allowing same-sex marriages to proceed in Alabama.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.”

Thomas and his pal, Justice Scalia voted for a stay.  And I think he is probably right.  The more states that allow marriage equality and the more couples that marry, the harder it will be to overturn any lower court rulings.  It may turnout that the Supreme Court will “compromise” by letting the few states in which the Appeals Court has overturned lower court rulings that not allowing marriage equality violates either the state or U.S. Constitution, but I think they are headed for a Loving v. Virginia kind of decision.

However, Judge Moore appears to have decided that he’d rather go with Thomas than the actual ruling.  Judge Moore ordered Alabama probate judges not to issue marriage licenses to same-sex couples.  According to the Washington Post

Much of the legal uncertainty in Alabama over same-sex marriage centers on Roy Moore, chief justice of the state’s Supreme Court. On Sunday night,Moore told Alabama’s probate judges not to issue marriage licenses, defying a federal judge. This is not the first time Moore has refused to follow a federal judge’s ruling.

We all remember when Judge Moore refuse to remove that large stone Ten Commandments monument from the courthouse.  The Post explains

Until this week, Moore’s claim to fame was being the “Ten Commandments judge.” The controversy that led to Moore being ousted from the bench involved a large monument to the Ten Commandments that had been installed in the Alabama Judicial Building in Montgomery.

This two-and-a-half-ton monument, and Moore’s fight to keep it in place, served as a cultural flash point. Civil liberties groups argued that it violated the church-state separation, while conservative and religious supporters of Moore defended his actions.

The Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State filed a lawsuitarguing that the monument violated the constitutional prohibition against religious endorsement. The U.S. Court of Appeals for the 11th Circuit agreed, ordering Moore to remove the monument.

He was then removed from his judgeship by the state ethics panel, but was reelected in 2012.

2300alabama-ssm-0209

So as a result of Judge Moore deciding the Thomas dissent was better than the refusal to grant a stay, Alabama is in chaos.  There are now counties where no marriage licenses are being issued at all, some that are just refusing same-sex couples, and others who are complying with the district court.

There will be more lawsuits as people are denied the right to marry.  I wonder what Justice Thomas will do when the next appeal from Alabama reaches the Supreme Court, but I think the Alabama ethics panel will be having another hearing with Judge Moore.