"The Wisconsin Supreme Court suspended a judge accused of helping a man evade immigration authorities..."

"In its two-page order, the court said it was acting to protect public confidence in Wisconsin courts during the criminal proceedings against [Milwaukee County Circuit Judge Hannah C.] Dugan. The order noted that the court was acting on its own initiative and was not responding to a request from anyone. Liberal justices control the court 4-3."

AP reports.

Meanwhile, Dugan has an insanely high-level defense team. The Milwaukee Journal Sentinel says:

"Manhattan federal Judge Dale Ho ordered Adams’ April 21 corruption trial adjourned as he appointed former US Solicitor General Paul Clement to argue against the Justice Department’s position that the mayor’s case should be dismissed."

The NY Post reports.

"[The judge] wrote in a five-page order that such an argument was necessary to hear because the DOJ effectively took the same position as Adams’ defense — and 'in light of the public importance of this case, which calls for careful deliberation.'"

"Discord over gun rights erupted within the law firm that secured Thursday’s Second Amendment victory at the Supreme Court..."

"... with Kirkland & Ellis LLP announcing shortly after the decision that it would no longer take firearms cases and that it was parting ways with the two star partners who won the case. After a Kirkland news release praising Paul Clement, a former U.S. solicitor general in the George W. Bush administration, and Erin Murphy, the two announced they were opening their own firm. 'Unfortunately, we were given a stark choice: either withdraw from ongoing representations or withdraw from the firm,' Mr. Clement said. 'Anyone who knows us and our views regarding professional responsibility and client loyalty knows there was only one course open to us: We could not abandon ongoing representations just because a client’s position is unpopular in some circles.'... After recent mass shootings, other Kirkland clients began expressing reservations over the firm’s work for the gun movement, a person familiar with the matter said. Kirkland 'started getting a lot of pressure post-Uvalde, hearing from several big-dollar clients that they were uncomfortable,' this person said. 'Several partners agreed that they should drop that representation.'"

The Wall Street Journal reports.

Will North Carolina have to redraw its congressional districts before the 2018 elections?

It's possible, since the new decision from the 3-judge district court can go straight to the Supreme Court but to a set of 8 Justices who've been split 4-4 on political gerrymandering.

Rick Hasen analyzes the possibilities at "BREAKING: Divided Three Judge Court Holds North Carolina Congressional Redistricting an Unconstitutional Partisan Gerrymander, Considers New Districts for 2018 Elections":

The court has opened the possibility of giving the state the chance to draw new maps, or maybe appointing a special master, all in line with the idea of replacing the districts with cured districts in time for the 2018 elections, where primaries have already been held...

A few weeks ago, I thought of writing a piece for Slate arguing that now would be the perfect time for the three-judge court to act in this case, because the Court is divided 4-4 and in that case the lower court ruling would stand. But given that primaries are done, and ballots needing to be printed very soon, I thought it would be too late for a lower court to try it.

And it could be that if [the lawyer for the state legislature Paul] Clement goes to SCOTUS, Justices Breyer and Kagan could agree that it is too late and agree on an order to delay this until the Court can consider the issue as a whole next term and before the 2020 elections....

But if the lower court orders new districts for 2018, and the Supreme Court deadlocks 4-4 on an emergency request to overturn that order, we could have new districts for 2018 only, and that could help Democrats retake control of the U.S. House.

Imagine running for Congress and at this late stage, not knowing where the lines around your district are? Imagine being a voter and not knowing which set of candidates is the one that relates to you? What if you've given money and time to a campaign that you now don't know is even your district? What if you've worked on convincing fellow citizens to vote for your candidate and now you don't know if they were the right ones to talk to — you should have been debating with somebody else... and you're still not sure who? I think even the possibility that the lines will be drawn before the coming election is unfair to the candidates and the citizens who've taken an interest in them. Obviously, the Supreme Court should immediately stay the 3-judge court's order. All 8 Justices should agree.

"Who would rather read about some dry, multipronged doctrinal test than about 60,000 naked Hoosiers..."

"...(in his nude-dancing opinion) or even just nine people selected at random from the Kansas City phone book (addressing the relative competence of the nine justices to decide right-to-die issues)? And his colorful prose could have serious consequences — I am not sure the Lemon test on religion and the First Amendment ever recovered from Justice Scalia comparing it to a B-movie ghoul."

Writes Paul Clement, explaining why "scores of law students, across the ideological spectrum, confess that they always read the Scalia opinion first — whether majority, dissent or concurrence."

Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:

A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.

As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Just some nutty lady's bumbling parry in a cat fight?

"Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality."

Justice Kagan quotes from the House of Representatives legislative history of the 1996 Defense of Marriage Act at today's oral argument. (Audio and transcript here. The quote in the title corrects a slightly garbled transcript.) There's a murmur of laughter. Here, listen. This clip includes the response from the very well-prepared Paul Clement, who's defending the federal statute.


By the way, the quote in the post title appeared in the amicus brief filed by 172 Members of the U.S. House of Representatives and 40 U.S. Senators. Here's the context, showing something of the case law that makes this a powerful argument (to anyone who accepts the precedents and is willing to consider the legislative history):

DOMA is... unlike most other Acts of Congress in another critical respect: A clearly stated purpose for its enactment was to express moral disapproval of a disfavored minority group. Many proponents repeatedly stated their intent to "honor a collective moral judgment" reflecting "moral disapproval  of homosexuality" (House Report at 15-16). Chairman Hyde explained, for example, that "most people do not approve of homosexual conduct * * * and they express their disapprobation through the law." 142 Cong. Rec. H7501 (July 12, 1996). Lead Senate sponsor Don Nickles likewise stated that "we find ourselves at the point today that this legislation is needed" because of the "erosion of values." 142 Cong. Rec. S4870 (May 8, 1996).

Those views no doubt reflect "profound and deep convictions," reflecting the "ethical and moral principles" of those who hold them. [Citation to Lawrence v. Texas]. But this Court has made clear that such "considerations do not answer the question before us." Ibid. No matter how sincerely held, such beliefs are not a constitutionally valid basis for enacting "a classification of persons undertaken for its own sake" and "den[ying] them protection across the board." [Citation to Romer v. Evans].

Justice Ginsburg's idea of "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."

Here's the audio and transcript for today's oral argument in United States v. Windsor, challenging part of the federal Defense of Marriage Act. I've listened to the whole 2-hour argument and I'm going to pull out a few things in separate posts. The first hour is about whether there is standing — a technical but extremely interesting and difficult issue.

At the beginning of the second hour, Paul Clement is defending DOMA. He states his point clearly: Congress has power to define marriage for the purpose of all the many federal programs that have long relied on a marriage classification, and even though it has long treated couples as married when they are married according to state law, it had the "flexibility" to exclude same-sex marriages when some states switched from the traditional definition of marriage. The states still control the definition of marriage, in this view, and all Congress did was define the scope of the coverage of the federal programs.

The first Justice to break in is Ruth Bader Ginsburg, who seems prepared with her own succinct argument:

Mr. Clement, the problem is if we are totally for it would totally thwart the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave... one might well ask, what kind of marriage is this?

(The strikeout shows where I corrected the transcript, based on the audio.)

Ginsburg returns to this idea later in the argument, after Clement asserts that the states don't "los[e] any benefits" — they are merely blocked from "open[ing] up an additional class of beneficiaries."

JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's -- it's -- as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was you would really [be] diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

It's an interesting puzzle. What is a marriage? Is it the bundle of benefits you receive? Marriage is seen as something left to the states in American federalism, but to say that is to ignore the immensity of what the federal government does, much of it hinging on this marriage classification that refers to state law. You really do have much less of a marriage if you don't get all those federal things, but these federal programs all rest on an enumerated power — taxing, spending, etc. — and why wouldn't the feds, in designing any given program have, within that power, the power to delineate who qualifies?

I'm only talking about whether Congress has an enumerated power, not whether this exercise of that power violates the equal protection right, which is also part of this case. And obviously, I'm not talking about the things government does not even attempt to do with marriage — which is to determine whose love relationships are "full" in an emotional and spiritual way.

Today in the Supreme Court: the Defense of Marriage Act.

Adam Liptak explains the statute and the arguments against it.

This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.

One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.

Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:

[I]n February [2011], Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.

That's unpleasant. They're lying back waiting for the Court to do the difficult work.

[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.

Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.

The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.

Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.

The issue of standing in the Supreme Court's same-sex marriage cases.

Linda Greenhouse explains the 2 standing problems in a way that is accessible to the general reader.

The Windsor case is especially striking, because the plaintiff's stake in the case is knock-you-over-the-head clear and tangible:

Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.

But the Obama administration declines to defend the constitutionality of DOMA, and Windsor won in the lower courts, making things nonadversarial, and the federal courts can only resolve actual controversies between the parties. But it's not as if DOMA has gone away. It still affects people, and Congress isn't about to repeal it.

Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....

The question in the case is whether this Bipartisan Legal Advisory Group can take over defending the law and thereby preserve the adversarial quality of the case. Obviously, it will be litigated with intensity and excellence. The Group has Paul Clement as its lawyer. But that's not the point in standing doctrine.

This week, Paul Clement argues that a federal statute is constitutional.

After last week's superb performance attacking the constitutionality of the Affordable Care Act in the Supreme Court, former Solicitor General Paul Clement was in federal court — the 1st Circuit Court of Appeals — yesterday, defending the constitutionality of the Defense of Marriage Act.

There are 2 cases on appeal:

In the case brought by Martha Coakley, the Massachusetts attorney general, [Feder District] Judge Tauro found in 2010 that DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to federal benefits. In that case, Judge Tauro agreed in 2010 that the law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

On the equal protection ground, Clement argued that Congress's legitimate interest was to have "a uniform definition" of marriage rather than to use state law, which varied from state to state (even though marriage laws have always varies from state to state, and Congress otherwise relies on state law to determine who counts as married for federal purposes).

Maura Healey, the assistant attorney general who argued on behalf of Ms. Coakley, told the panel that DOMA requires Massachusetts “to live with two distinct and unequal forms of marriage.” She added, “This is a burden that Congress has imposed on Massachusetts simply because it doesn’t like the fact that gay people are getting married.”

Stuart F. Delery, the Justice Department’s acting assistant attorney general for the civil division, also argued before the panel, saying that the court should hold DOMA to heightened scrutiny because it targets “a group with a long and deep history of discrimination.”

Here's the recorded argument, which I have not yet listened to.

Isn't it wonderful that we have this opportunity to examine what we've been saying for the past week about the role of the judiciary and deference to democratic decisionmaking? I assume many people who want the ACA upheld want DOMA stricken down, and many who want to keep DOMA want ACA crushed. So have at it. And please be consistent.

As a law professor, it's easy for me to argue any of the 4 possibilities, so I'll let you start the conversation. First, a survey:

DOMA and the ACA...
	Both are constitutional.
	Both are unconstitutional.
	DOMA is constitutional but the ACA is not.
	The ACA is constitutional but DOMA is not.
	I haven't done the legal analysis to know.
	The answer is whatever the highest court says in the end.
pollcode.com free polls

Explain your answers in the comments.

"Tony Scalia's Retirement Has Started Early."

Says Charles P. Pierce on the Esquire website.

Calling a man of Italian ancestry "Tony" when that isn't his nickname? Isn't that on the level of calling a Latino "Jose" or a black man "Leroy" (or some such stereotypical name)?

Of course, quite aside from that, the blog post is bilge:

I think Justice Antonin Scalia isn't even really trying any more. It's been clear for some time now that he's short-timing his job on the Supreme Court. The job bores him....  he's now bringing Not Giving A Fuck to an almost operatic level.

Opera... see? That's like talking about a black person and throwing in watermelon.

His "originalism" was always a shuck, even if it was consistent, which it rarely was, and even if it was principled, which it never was.... But at least, for a while, he actually tried to act like a judge in a democratic republic, and not the lost Medici pope. 

Pope? More anti-Italian (and anti-Catholic) stereotyping crap, which Pierce probably thinks is just fine, indeed hilarious, because it's against a conservative.

It is plain now that Scalia simply doesn't like the Affordable Care Act on its face.... He doesn't think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd "broccoli" analogy... And today, apparently, he ran through every twist and turn in the act's baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the "Cornhusker Kickback" — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that's the standard.)

Pierce just doesn't understand what the Cornhusker Kickback has to do with the severability argument. He smears Scalia, but he doesn't do the basic work of fathoming the argument. He denounces without earning the right to denounce, and instead of saying anything of any value about law he flips out over into the ethnic insults.

Here's the portion of the severability argument — transcript PDF — where Scalia talks about the Cornhusker Kickback:

Time-shifted live-blogging of this morning's Obamacare oral argument in the U.S. Supreme Court.

I've finally got time to curl up with a nice MP3 and transcript. I'm going to treat this like a live-blog, with frequent updates until I get to the end.

UPDATE 1: Paul Clement will attack the expansion of Medicaid. He's talking about whether it's "coercive," because if it is, it won't fit the Spending Power. Justice Kagan wants to know why a "big gift from the Federal Government" is coercion. "The Federal Government is here saying, we are giving you a boatload of money." Page 3. Just a big old boatload of money is coercive, Clement says confidently. But the actual bill has a "very big condition." Kagan interrupts, trying to make her point that a big boatload of money is not coercive. What if someone offered you a job and would pay you $10 million a year. Of course, you say yes, but you're not coerced are you? Clement lays down one of the cleverest teasers I have ever heard: "Well, I guess I would want to know where the money came from."

"Wow. Wow." says Kagan. Has a Supreme Court ever said "Wow. Wow" before? She can't believe you'd do anything other than snap up that money. "I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"

Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."

Reports from Day 3 of the Obamacare oral argument, now in progress.

The argument today is about severability — that is, whether, if a portion of the Act is struck down, some or all of the rest of the Act must fall along with it. Kevin Russell reports, following Paul Clement's argument (boldface added):

The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly  Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.

And from Amy Howe:

Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.

But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)

Thus, it sounds like the parts of the Act that would destroy the private insurance companies will go down along with the individual mandate — that these provisions of the Act are not severable (which seems obvious to me). The harder question was whether the entire Act will fall.

Are we supposed to go through the whole 2700 pages? Ha ha. Why should they? The members of Congress didn't. Obama didn't. (Signing the bill, he said: "... you know the feeling of signing your name to pages of barely understandable fine print").

And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.

Today's oral argument in the Supreme Court covers the constitutionality of the individual mandate.

This is the question most people have focused on: Does Congress have an enumerated power to regulate individuals who fail to buy health insurance?

The Obama administration argues the insurance mandate is a valid way to address a national crisis in which the uninsured impose huge costs on the U.S. health-care system. It also says the provision is an essential part of the law's insurance reforms, which require insurers to accept all prospective customers, even if they have pre-existing medical conditions.

U.S. Solicitor General Donald Verrilli will be up first Tuesday morning, allotted an hour to make the administration's case to the justices. Two lawyers representing the challengers will each have 30 minutes to respond. Paul Clement, a former solicitor general during the George W. Bush administration, will argue on behalf of the state challengers. Michael Carvin of the Jones Day law firm will argue for the National Federation of Independent Business and a group of individuals challenging the law....
I'll have much more to say when the transcript of the argument becomes available.

The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."

It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)

In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....

[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”

See how easy it is to dissipate the tension? Why, it's an orgasm of tension relief! The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.

Isn't it fascinating how everything works to bulk up the power of Congress? Congress built political support by not saying tax when the bill was up for a vote, and it claims constitutional power by saying tax at the point when the Court is analyzing the bill after it is passed. What's most frustrating about this it's-not-a-tax-it-is-a-tax turnabout it that when the Court interprets Congress's powers, it exercises restraint, deferring to the political process, because that's where policy decisions are properly made. But  it was at the political, policy-deciding stage where Congress hid the reality of this massive new TAX.

But today is only about the Anti-Injunction Act, and it's key that the challenge is to the requirement that everyone buy health insurance and not just to the penalty that is imposed on those who don't meet the requirement. The requirement isn't a tax, even if the penalty is a tax. But it seems that the Taxing Power argument depends on the characterization that all we really have here is a tax, that the mandate is actually nonexistent. As I was saying the other day, that makes a lot of sense: The penalty is so small in relation to the cost of buying insurance that the requirement operates merely to define who owes the tax.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? Perhaps we'll get a hint of an answer today, as the Justices react to the lawyerly contortions around the Anti-Injunction Act.

Former Solicitor General Paul Clement quits King & Spalding over his defending the Defense of Marriage Act.

He writes:

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do... I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."

Politico's Ben Smith reported the firm's withdrawal from the case as "a real victory for supporters of same-sex marriage -- and marking what seems like real marginalization for its foes." It quoted the chairman of the firm, Robert D. Hays, Jr., saying: "In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate." I'd love to hear the gory details.

Anyway, we talked about Clement's role last week, here. I said:

I would like to see the Defense of Marriage Act go, and I encouraged the Obama administration to decline to defend it, but I don't think it's "indefensible," and in fact, it deserves to be defended, and the House Republicans did the right thing in hiring Clement. The country deserves a well-briefed, well-argued case presented to the Supreme Court. The other side is already represented by Theodore Olson, another former Solicitor General. I hope Olson wins, but not because he's the better lawyer. It is absolutely fitting that he be matched with a lawyer of equal stature, skill, and will to prevail.