The D.C. Circuit Court of Appeals panel rejects Trump's claim of immunity.

WaPo reports.

Here's the opinion. Excerpt:

"The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections."

The Court decides in Moore v. Harper, just issued.  

From the syllabus:

The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections. Marbury v. Madison, 1 Cranch 137, famously proclaimed this Court’s authority to invalidate laws that violate the Federal Constitution. But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.” Id., at 177.

The Elections Clause does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. Pp. 11–26.

That's the last opinion for today, per SCOTUSblog.

Chief Justice Roberts wrote the opinion, with Justice Thomas dissenting, joined in full by Justice Gorsuch and in part by Justice Alito.

When Ketanji Brown Jackson said "Can I provide a definition? No. I can't... Not in this context I can't."

You can listen to the video here. Take note that the Republican National Committee Research gives us a distorted transcript, omitting key words and not using ellipses to show that there were omissions:

SEN. BLACKBURN: "Can you provide a definition of the word 'woman'?"

JACKSON: "No, I can't"

BLACKBURN: "You can't?"

JACKSON: "I'm not a biologist" pic.twitter.com/i7Rg83z5Y4

— RNC Research (@RNCResearch) March 23, 2022

"Can I provide a definition? No. I can't... Not in this context I can't."

I find these omissions quite deceptive, though the video is there, so the deceptions stare you in the face. I suspect that if you're rooting for the GOP here, you think this is a fabulous gotcha and you won't absorb what I'm about to say. If you're rooting for the Democrats, keep reading an you might find a new perspective on this troublesome clip that's delighting your antagonists.

Blackburn asked "Can you provide a definition of the word 'woman'?" And Jackson's response — listen to the video — stressed the word "provide": "Can I provide a definition?" Jackson shows a judicial temperament: Instead of jumping to giving an answer, she inspects the question, its precise wording. What does it mean to provide a definition? 

I know I'm restraining myself from looking up the words "provide" and "definition" and spending the next 10 minutes contemplating whether providing a definition of a word is substantially different from saying what a word means. And then, can you ever really say what a word means?

"It is emphatically the province and duty of the judicial department to say what the law is," wrote Justice John Marshall in Marbury v. Madison. "Those who apply the rule to particular cases, must of necessity expound and interpret that rule."

Judges say what words mean when they have particular cases — concrete disputes to resolve — that require the understanding of words. Their powers of understanding unfold within a real context. They don't — like a dictionary — yield instant definitions of words. They refrain from giving answers in the abstract. 

Thus, it was entirely appropriate for Jackson to expand with "Not in this context I can't." I think that means: As a judge, I wait until I am presented with a real dispute that can only be resolved by determining what the word "woman" means. What would that context be? 

If I'd been in the Jackson's position, I wouldn't have made myself vulnerable by saying "I can't," and I certainly wouldn't have laughed at Blackburn in a manner that can read as contemptuous. I'd have turned the questioning back on Blackburn: When would a real case depend on finding the meaning of that word? As a judge, I need a concrete and particularized dispute to resolve. I have no expertise in defining words outside of that judicial role. 

Jackson gestured at that when she said "I'm not a biologist." Would it have been better to say "I'm not a lexicographer"? Yes, because she was asked to "provide a definition." By saying "I'm not a biologist," she suggested that if she were confronted with a real case that depended on the meaning of "woman," the expert she'd most want to hear from is "a biologist." That might have disappointed some people on the left. Is there a whiff of transphobia?

Is there any Senator who would would want to follow up with a question like "Biologist?! You're saying that biology determines who is a woman and who isn't?" It never rose to that level of sophistication, but it's obvious to me that the right answer is: It would depend on the relevant facts and legal texts in the particular case or controversy before the court, and multiple areas of professional expertise may very well come into play.

Huge decision on political gerrymandering: "We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts."

That's Chief Justice Roberts, writing for the 5-4 majority. You can find the news articles yourself, I will read the opinion and update.

ADDED: The case is Rucho v. Common Cause.

The question here is whether there is an “appropriate role for the Federal Judiciary” in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere....

The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing....

But in Baker v. Carr, the Court rejected the idea that redistricting was entirely left to the legislature. It detailed the "political question" doctrine, identifying 6 factors, one of which is "a lack of judicially discoverable and manageable standards," and decided that, in the context of districts with unequal numbers of residents, the Equal Protection Clause was a source of standards. Later, it said the standard was "one person, one vote" — that is, a requirement roughly equal numbers in each district.

There's still a lot of advantage to be taken in where you draw the lines, but it's harder for judges to discover a standard and manage it. When the lines were drawn for racial reasons, the Court got involved, but lines drawn for partisan reasons were always troublesome. There have been a few cases (described in the opinion), but the Court was always fractured over what the standards should be, and a minority of Justices maintained that partisan gerrymandering fell within the political question doctrine. After more than 3 decades, that minority view has become the majority. It was Justice Kennedy — concurring in Vieth (2004) — who kept partisan gerrymandering from going into the "political question" category 15 years ago. So Kavanaugh replacing Kennedy made the big difference.

Roberts writes, showing some deference to Anthony Kennedy but much more respect to Justice O'Connor (who wrote an excellent concurring opinion in the key case Davis v. Bandemer (1986)):

I'm saying this for the last time.

I'm teaching my last semester at the law school. Every class I teach I'm teaching a case for the last time — sometimes a case that I've taught 30 or 50 times. Yesterday, I taught Marbury, a case I've taught about 100 times and the first case I ever taught. It means nothing, I don't think, to the students, but there's something transcendent for me.

"If, in fact, I could solve all these problems without passing laws in Congress, then I would do so, but we’re also a nation of laws."

Said Obama, quoted in David Remnick's New Yorker article. That caught my ear — I was listening to the podcast — because 2 days into Spring semester, I've taught one class in each of 2 courses, and both courses begin with Marbury v. Madison.

Obama's statement resonated with a very familiar passage in the 1803 Supreme Court case:

The Government of the United States has been emphatically termed a government of laws, and not of men.

Compare the quotes. Key word variation: "also" versus "not."

What accounts for this sudden and shocking spike in bigotry?

"A year and a half ago, even the president of the United States opposes gay marriage.  President Bill Clinton, a Democrat, signed DOMA into law.  Now all of a sudden, after Obama changes his mind, the whole country supports gay marriage, and those who don't are bigots."

What accounts for this sudden and shocking spike in bigotry?

It depends on what the meaning of bigotry is. (To paraphrase that humanitarian, Bill Clinton.)



But — to quote Marbury v. Madison — as quoted in the DOMA case, United States v. Windsor, "‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803))." (I know, who quotes Marbury like that? And what the hell was Zivotofsky v. Clinton? Was there some insuperable urge to bring up Bill Clinton? The Clinton in Zivotofsky was Hillary Clinton, in her Secretary of State role, and this was the case about the State Department's refusal to list Israel as the place of birth on a U.S. passport for a person born in Jerusalem.)

So if it's the Court's duty to define the terms, and opposition to same-sex marriage is defined as nothing but bigotry, then it's the Court's decision in Windsor that accounts for the sudden and shocking spike in bigotry.

But let's be clear about a few things.

1. The majority opinion in Windsor did not use the word "bigotry" (or "bigot"). That word appears in Chief Justice Roberts's dissenting opinion: "At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry." Justice Alito also uses the word: "Acceptance of [Windsor's] argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools."

2.  The majority's expression is "a bare congressional desire to harm a politically unpopular group," which might sound extreme, but it appears in the case law going back to the early 70s, and it's a stock phrase used to characterize the government's interest when the Court is applying minimal scrutiny and therefore needs to say that there is no legitimate governmental interest.

3. What that "bare... desire to harm" language really means is: We don't want to have to heighten scrutiny for this discriminated-against group — they don't want responsibility for what that would mean in future cases — but we do want to be able to strike this down while staying at the minimal scrutiny level.

4. This doctrinal maneuver produces the strange impression that the Court is calling Bill Clinton and the majority of the members of the 104th Congress a bunch of bigots.

5. Now lots of traditionalists have the raw material to whine and cry about being called bigots. I doubt if that will work out very well for them, but they've been stewing in their own juice for a long time, and they're going to find it hard to stop. Unfortunately, same-sex marriage was originally presented as a conservative idea, and traditionalists could have gotten out in front of liberals on this issue if they'd listened to the original argument and predicted the future better, and now they'll have to scramble to improve their image. If they think crying about being called bigots — when, again, the majority didn't even use that word — is going to help, I just have to laugh. You took the opportunity to oppress when it was there, and now that it's gone, you want to say you are oppressed. Man up, losers. You lost. And you deserved to lose. Now, stop acting like losers. If you can. (I bet you can't!)

"Obama pushing to diversify federal judiciary amid GOP delays."

Headline at The Washington Post — for article that has the top placement on the front page).

In Florida, President Obama has nominated the first openly gay black man to sit on a federal district court. In New York, he has nominated the first Asian American lesbian. And his pick for the U.S. Court of Appeals for the D.C. Circuit? The first South Asian.

Reelected with strong support from women, ethnic minorities and gays, Obama is moving quickly to change the face of the federal judiciary by the end of his second term, setting the stage for another series of drawn-out confrontations with Republicans in Congress.

This is such a ridiculous Obama puff piece. Obama pushing to diversify the federal judiciary? Like it's an Obama innovation?! I can't remember when Presidents didn't go out of their way pick federal judges from various minority groups.

WaPo is obviously using this diversity hook to criticize Republican resistance to liberal nominees. Does anyone in their right mind believe the GOP objects to these nominees because of their particular diversity factors.

Stripping the political rhetoric out of Obama's preemptive attack on a Supreme Court that would strike down the ACA...

... Attorney General Eric Holder files the 3-page, single-spaced letter demanded by the 5th Circuit explaining the Administrations actual position on the judicial review of federal statutes.

The letter — predictably — presents the most ordinary and elementary propositions of constitutional law going back to Marbury v. Madison.

ADDED: Instapundit says " It’s all pretty unexceptional except for the final sentence." Ha ha. The last sentence is the claim that "The President’s remarks were fully consistent with the principles described herein."

See, I think this is a wonderful opportunity to compare political speech about the courts to the speech by politicians to the courts. If you get used to these different styles — as I am, having read this stuff for decades — you can translate back and forth. Speak political rhetoric and I can turn it into a version that is fit for judicial consumption. Show me the way you're talking to the judges and I can whip it into demagoguing-the-public form. And then there's the meta level, where Instapundit is, where you juxtapose them and leverage new critique.

Say I, from meta meta land.

Gingrich gives his opponents a quote to gasp about: "There is no Supreme Court in the American Constitution."

Just a few days ago, I was talking about a certain type of clever remark:

A witty, engaging speaker will say something surprising and counterintuitive, but then flesh it out or add one more point, and then it clicks. Of course, if you have opponents, you've got to anticipate what they'll do with the little slice of what you said that seems head-slappingly idiotic. So it may not be so smart to be smart like that. 

The context was David Plouffe saying "people won’t vote based on the unemployment rate." And now, here comes Newt Gingrich with an even juicier example of the seemingly stupid line that wakes up the audience and draws them in to hear the whole context but that also gives opponents an easy way to use the remark to make you look like an idiot.

Here's the quote, in it's full context (transcribed in a post by Ian Millhiser at Think Progress):

In the American system, if you read the Constitution correctly — this is why I wrote “A Nation Like No Other” — if you read the Federalist Papers correctly, the fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.

It's obvious to me — as a law professor who has studied and taught Article III of the Constitution for 25 years — that Gingrich is not denying that the Constitution provides for a Supreme Court. He's denying the supremacy of that Court over the other branches. He's stressing the checks on the judicial branch, which include Congress's power to make "Exceptions and... Regulations" to the Supreme Court's jurisdiction, and the idea that the Supreme Court is not the sole voice in the interpretation of constitutional law. This is routine stuff in a Conlaw I class. It's what we conventionally talk about along with Marbury v. Madison. It's not the slightest bit edgy, believe me.

Watch the video at the Think Progress link. You can hear the stress on "Supreme" in "There is no Supreme Court in the American Constitution." He knows there's a Supreme Court. It's just not, in fact, supreme over everything. The Supreme Court can strike down statutes and order members of the Executive branch around to a certain extent, but it is also subject to jurisdiction cutbacks, new appointments, impeachment, and constitutional amendments. And the question of what the Constitution really means survives independently of the case law. We are free to argue that the Court got it wrong, to try to get cases overruled, and so forth. And there are many places where the Court hasn't spoken yet or may never speak, in which case there are important responsibilities elsewhere in government for other individuals to say what the Constitution means.

"I must have read the novel a hundred times, and could recite lengthy passages from memory, without exactly understanding everything."

Says Kenneth Anderson about "Brave New World."

I don't think I've read anything 100 times — except maybe the Sermon on the Mount and Marbury v. Madison. Have you? Do whole passages reside in your memory simply because you've read them so many times? ("It is emphatically the province and duty of the judicial department...") Or have you made a point of memorizing pages of text? ("Think not that I am come to destroy the law...")

Anderson, responding to my quoting of Aldous Huxley, gives us his favorite Aldous Huxley quote:

I have been told by an eminent academic critic that I am a sad symptom of the failure of an intellectual class in time of crisis. The implication being, I suppose, that the professor and his colleagues are hilarious symptoms of success. The benefactors of humanity deserve due honor and commemoration. Let us build a Pantheon for professors. It should be located among the ruins of one of the gutted cities of Europe or Japan, and over the entrance to the ossuary I would inscribe, in letters six or seven feet high, the simple words: Sacred to the memory of the world's educators. SI MONUMENTUM REQUIRIS, CIRCUMSPICE.

I put the link there for the Latin, which is the punchline. Punchlines in Latin, knocking educators. That in itself is funny.

First day.

After a seemingly endless winter break, it is finally the first day of what we call the Spring Semester. I'm here before sunrise, so the thick snow out there is looking very blue. But I'm happy -- as symbolized by my taxi-yellow walls -- and eager to get started. The courses are Constitutional Law I and Federal Jurisdiction, and both start -- propitiously -- with Marbury v. Madison.



The poster shows part of a painting by Pierre Bonnard. Would Pierre like the blue and yellow in the photograph combined with his pinkish purple? Consider this: