"Going home after a long day, I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm..."

"... have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports 'obstacles to voting disproportionately encountered by black voters.' I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential 'damage to the Court.' I just thought I would observe the incongruity. Good night. Sincerely, Nino."

Wrote Justice Scalia to the rest of the Supreme Court on December 12, 2000, quoted in a CNN article by Joan Biskupic, "New documents show how Sandra Day O’Connor helped George W. Bush win the 2000 election."

To paraphrase: I'm all for vigorous dissents — I do them myself — but I dissent to tell the truth as I see it, and you just did it to say we ought shrink from the truth. Ha!

ADDED: That headline is terrible.  The article is about how Sandra Day O’Connor kept Chief Justice Rehnquist from having a majority for deciding the case the same way on a different legal theory. Either way Bush would win, so she didn't "help him win."

"Legal experts say Roberts hopes to follow the example set by his late mentor Chief Justice William Rehnquist at then-President Clinton's 1999 trial."

"Rehnquist, for whom Roberts clerked in the 1980s, once mused that during Clinton’s proceeding he 'did nothing in particular, and did it very well,' lifting a line from Gilbert and Sullivan. Eric Claeys, a law professor at George Mason University and former Rehnquist clerk, said Rehnquist’s approach was framed by the 1986 rules. The rules say the presiding officer 'may rule' on all questions of evidence, like instances where the relevance and significance of a document or witness testimony is unclear. However, a single senator can appeal the ruling, triggering a Senate vote, where some say Roberts would break a 50-50 tie, though that is disputed. The presiding officer also has the option to stay mum on an evidentiary question and send it directly to the Senate for an up-or-down vote. Rehnquist generally avoided this option during Clinton’s 1999 impeachment trial, Claeys said. Instead, Rehnquist applied the relevant precedents, then left it up to senators to decide whether to reverse his decision. 'I don’t think that Chief Justice Roberts will play a bigger role in President Trump’s impeachment trial than Chief Justice Rehnquist did in President Clinton’s,' Claeys said. 'I expect Roberts will follow the same strategy.' However, some legal experts believe today’s more intensely partisan atmosphere may force Roberts to depart from the course charted by his predecessor...."

From "Trump impeachment trial drags Roberts into spotlight" by John Kruzel (in The Hill).

The Gilbert and Sullivan song is "When Britain really ruled the waves" (from "Iolanthe"):

When Wellington thrashed Bonaparte,
As every child can tell,
The House of Peers, throughout the war,
Did nothing in particular,
And did it very well:
Yet Britain set the world ablaze
In good King George’s glorious days!

"The principle that senators are not jurors in the traditional sense was well established at the outset of the 1999 impeachment trial of President Bill Clinton."

"Tasked with delivering an opening statement for the House managers, who present the House’s case to the Senate, Rep. Robert Barr, R-Ga., reminded the senators of Clinton’s tendency to 'nitpick' over details or 'parse a specific word or phrase of testimony.' To Barr, the conclusion was obvious: 'We urge you, the distinguished jurors in this case, not to be fooled.' That was the moment Sen. Tom Harkin, an Iowa Democrat, had been waiting for. 'Mr. Chief Justice,' he said, addressing William Rehnquist, who was presiding over the trial, 'I object to the use and the continued use of the word "jurors" when referring to the Senate.'... The chief justice sustained the objection. 'The Senate is not simply a jury,' he ruled. 'It is a court in this case.' Rehnquist thus admonished the House managers 'to refrain from referring to the Senators as jurors.' For the balance of the trial, they were called 'triers of law and fact.'... In an ordinary trial, the jury’s role is generally limited to fact finding, while the judge determines the scope and application of the law. In an impeachment trial, however, the Senate itself has the 'sole power' to decide every issue. Recognizing the Senate’s all-encompassing responsibility, and his own limited role, Chief Justice Rehnquist referred to himself throughout the proceeding only as 'the chair.'"

Writes lawprof Steven Lubet in (The National Interest).

"So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional."

Writes Alan Dershowitz, surprising me (and I taught the constitutional law relating to impeachment for many years). He writes:

Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. Justice Byron White, a John F. Kennedy appointee, put it this way:

"Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis."

Justice David Souter, a George H. W. Bush-appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”

It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.

Here's the case he's talking about Nixon v. United States. — about a federal judge named Nixon who challenged the procedure the Senate used to convict him. All of the Justices rejected Nixon's attempted appeal to the judiciary. The Souter and White opinions were concurring opinions. The majority opinion written by Chief Justice Rehnquist (and joined by Stevens, O'Connor, Scalia, Kennedy, and Thomas) stressed the "textually demonstrable commitment" of the issue to the Senate, which is given the "sole Power to try all Impeachments." (The House is given "the sole Power of Impeachment.") Even though that case was about a judge, the Court took into account the special need for finality that would exist in the case of a President:

The movie "The Happytime Murders" uses "Sesame Street" puppets in a way that is "explicit, profane, drug-using, misogynistic, violent, copulating, and even ejaculating."

The Daily Beast reports on the lawsuit brought by the "Sesame Street" company to stop the distribution of the film, which, of course, it did not license or authorize in any way. The film is directed by "one of Jim Henson's family member."

“Sesame seeks an injunction that forces Defendants to cease and desist their trading upon the goodwill associated with Sesame Street in furtherance of box office receipts,” the lawsuit says. “The promotion of The Happytime Murders should succeed or fail on its own merits, not on a cynical, unlawful attempt to deceive and confuse the public into associating it with the most celebrated children’s program in history.”

I assume "deceive and confuse" relates to trademark law. Is it deceptive and confusing or will pretty much everyone know it's a send-up, a satire or parody? When do the rights to characters you've created give way to the right of expression of those who want to make fun of them?

[ADDED: I’m now thinking the headline to this post misstates the facts. I think there’s just a Muppet character that is not a “Sesame Street” character and the poster slogan “No Sesame. All Street.”]

[MORE: I put up a new post with the "restricted" trailer for the movie that makes the overlap with "Sesame Street" very clear. Having seen that — not saying I liked it, but having seen it — I think it's easily within the zone of satire that should be protected.]

This makes me think of "Superstar: The Karen Carpenter Story" — "a 1987 American short biographical film portraying the last 17 years of singer Karen Carpenter's life. Directed by Todd Haynes, the film uses Barbie dolls as actors, as well as documentary and artistic footage... [and] an unauthorized soundtrack consisting mostly of the hit songs of The Carpenters."

"Superstar" was never distributed because it was stopped by claims of copyright in the music. But what about the use of Barbie dolls?

... Haynes detailed Karen's worsening anorexia by subtly whittling away at the face and arms of the "Karen" Barbie doll.

This is only tangentially related, from Woodward and Armstrong's "The Brethren," an account of the Supreme Court in the early 70s:

The National Lampoon, a humor magazine, had just released its February issue. The centerfold was entitled “Amicae Curiae”—Friends of the Court—and it depicted, in a color cartoon, all nine of the Justices engaged in a variety of sexual activity. 

View image here...

The Chief, naked except for holster and pistol, was on the floor licking the boot of an otherwise naked young woman. Brennan was standing in front of two very young girls holding his robe open. Stewart was measuring the throat of a young woman with a ruler, apparently in preparation for oral sex. Rehnquist, clad in a woman’s bra and red garter belt, was parading before the others cracking a black whip.

"Gorsuch Looks Poised to Rule That States Must Sometimes Subsidize Churches."

Writes Mark Joseph Stern.

Another way to put that is: The Supreme Court Looks Poised to Rule That Sometimes Not Discriminating Based on Religion Is More Important Than the Strict Separation of Church and State.

ADDED: The cases is about whether Missouri can exclude religious organizations from an otherwise generally available program to distribute recycled tires for surfacing playgrounds. Missouri is taking a strong no-aid-to-religion approach that entails discriminating based on religion.

Amy Howe analyzes the argument at SCOTUSblog:

"Mason Receives $30 Million in Gifts, Renames School of Law After Justice Antonin Scalia."

That's the headline in the school's press release. Interesting use of the comma splice. An occasion to reflect upon the old saying Correlation is not causation.

But it must be fair to say that the $30 million caused the name change. It couldn't have been the sole cause, and who can know what weight it added to the side of the scale that held genuine respect for the late Justice and belief in the desirability of attaching this label to all the students and alumni and faculty and staff of the school? The man is very recently dead and he is associated with strongly stated opinions on many of the most controversial issues of our day, so it's not like the time Yeshiva University took the name Benjamin Cardozo for its law school. Cardozo had been dead for nearly 4 decades when that name was chosen, and Cardozo even in his time was not viewed as controversially political.

If $30 million gets George Mason to adopt the name Antonin Scalia, I wonder what amounts of money would cause other schools to adopt other names. George Mason was already considered conservative, but Scalia amplifies the brand and adds quite a bit more edge. What if lovers of Harry Blackmun had wanted to get George Mason to put his name on their school? Would $30 million have been enough or would it take more?

My school has long been associated with the left end of the political spectrum, but we like money too. It's hard to imagine situations where offers are made that go against the grain of the law school's own idea of its brand, but what if someone were to offer us $30 million to name the school The William H. Rehnquist School of Law? Why would anyone do that? Just to lean on us? Would we resist? Up the amount. If not $30 million, what about $90 million? It's not absurd to imagine the offer. Chief Justice Rehnquist was born in Milwaukee, Wisconsin. I'm sure that geographical association would play a role in our deliberations.

Who put up that money for the George Mason name change? $20 million came from an anonymous donor who worked through the Federalist Society, someone who was "a personal friend of the late Justice Scalia and his family." The other $10 million came from the Charles Koch Foundation.

The William H. Rehnquist School of Law at the University of Wisconsin–Madison. Nice ring?

Oh, I see how easy it would be to rewrite this post as an April Fool's Day announcement, but I'm sick of April Fool's Day.

"Think of it this way: if none of us wore any clothes, then it would be the male genitalia sticking out visibly..."

"... while women’s would remain largely hidden. Maybe the entire point of formal attire to invert this possibility, to say, 'Yes, in nature, it is women who have mysterious hidden powers of creation, but once we get all dressed and civilized, it’s precisely the other way around.'"

The last paragraph of "Dickheads/The paradox of the necktie resolved," a Baffler article by David Graeber (with an excellent illustration).

Via Metafilter, where there are many comments, including:

Couldn’t we say that a tie is really a symbolic displacementof the penis, only an intellectualized penis, dangling not from one’s crotch but from one’s head?

Is this a comp lit undergrad class in 1986?

I see I have a neckties tag. I'll have to publish this post so I can click on it to see what the hell I've said about neckties over the past decade. Beyond this past decade, for the past half century, the most common insight into the necktie has been that it's a phallic symbol. But what I liked about Graeber's take was the seen-and-unseen angle — and seen and unseen is one of my all-time favorite tags.

ADDED: From the necktie-tagged archive. This is from a 2004 post about shopping for a suit at Brooks Brothers:

"It turns out that judges with daughters are more likely to vote in favor of women’s rights than ones with only sons."

"The effect, a new study found, is most pronounced among male judges appointed by Republican presidents, like Chief Justice Rehnquist," reports Adam Liptak, in the NYT.

The new study considered some 2,500 votes by 224 federal appeals court judges. “Having at least one daughter,” it concluded, “corresponds to a 7 percent increase in the proportion of cases in which a judge will vote in a feminist direction.”

Additional daughters do not seem to matter. But the effect of having a daughter is even larger when you limit the comparison to judges with only one child.

“Having one daughter as opposed to one son,” the study found, “is linked to an even higher 16 percent increase in the proportion of gender-related cases decided in a feminist direction.”

If we assume the study accurately detected a "daughter effect," what would account for it? One might guess it's that parents are attuned to things that might advantage or disadvantage their own children. Or maybe the daughters tend to support the "feminist direction" and make influential arguments to their fathers (and mothers) or make their fathers (and mothers) feel moved to please their daughters.

Liptak writes specifically about Chief Justice Rehnquist and his opinion in a 2003 decision "that so delighted Justice Ginsburg," Nevada Department of Human Resources v. Hibbs, which found that Congress had power under the Fourteenth Amendment to require states to give their employees leave to care for family members. I've written a lot about that case including in this (PDF) law review article and in this blog post:

For there to be Fourteenth Amendment power, it must be shown that Congress is really enforcing the rights guaranteed by the Fourteenth Amendment. It can't use this power to create different rights or offer other benefits, however justified and beneficial those new rights or benefits may be. To say that there is no Fourteenth Amendment power is not to say the [Family and Medical Leave Act] isn't a good idea or that women aren't "disadvantaged in the workplace when they are not allowed to take family leave." Fourteenth Amendment power requires that the law remedy the violation of rights. What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

In Hibbs, Chief Justice Rehnquist ultimately bent over backwards to find a way to say that the FMLA fit the Fourteenth Amendment power. (It had to do with the tendency to give more leave to women than to men, by the way, not any failure to give leave. And it wasn't about the need to help women who have family responsibilities. It was about stereotyping women by assuming they have more family responsibilities than men!)

Liptak quotes Justice Ginsburg: "When his daughter Janet was divorced... I think the chief felt some kind of responsibility to be a kind of father figure to those girls [i.e., his granddaughters]. So he became more sensitive to things that he might not have noticed."

More sensitive to "things he might not have noticed" or more sensitive to the desires and opinions of the women in his life?

I'd posit the latter, because Rehnquist's Hibbs case is notable for its complete failure to find a constitutional rights violation that was remedied by the entitlement to unpaid leave, as Justice Kennedy made obvious in his dissenting opinion.

Liptak quotes political scientist Maya Sen, a co-author of the study: "Justices and judges aren’t machines... They are human, just like you and me. And just like you and me, they have personal experiences that affect how they view the world. Having daughters... is just one kind of personal experience, but there could be other things — for example, serving in the military, adopting a child or seeing a law clerk come out as gay. All of these things could affect a justice’s worldview."

I'm all for judges who've got lots of real-world experience in them, to go along with the reading and analysis skills that they must use to decide cases. You can't understand anything without reference to the world, and it's terrible to have to trust judges who have limited experience, particularly those who've spent too many years enclosed in the life of judging. Rehnquist had sat on the Supreme Court for 31 years, and he was 78 when he wrote Hibbs.

Is it "delightful" — Ginsburg's word — to think that Rehnquist absorbed his sense of how the world works from empathizing with his own family members? Or should we anguish over getting stuck with opinions written by judges whose connection to real life is so limited and self-centered?

"Do you see what I have to go through every time we have one of these goddamned conferences?!" said Justice Scalia...

... to Andrew Napolitano, one time at a dinner, where Sandra Day O'Connor was also present. Justice Scalia was saying something and — as Napolitano tells it, "Justice O'Connor said something about how his general point didn't apply to the specific area of maritime law. He turned to her and said, 'Let me finish!'" And then Scalia whispered the snark in the post title.

I'm sure that anecdote provokes — in some circles — the countersnark: If he doesn't like it, he ought to retire. And, in fact, the linked article describes a recent Brooklyn Law School appearance at which a student asked:

"There have been many calls for Justice Ginsburg to retire... Would you take some of the pressure off her and retire instead?"

We're told there was "a roar of laughter." Scalia said: "Sure, I'll retire. As soon as there's a decently conservative President in office to appoint my successor." I'm just kidding. He said: "I said I would take questions—I didn't say I would answer them."

Which is almost as cheeky as the time Chief Justice Rehnquist, asked if he'd retire, said: "That's for me to know and you to find out."

Cass Sunstein picks the top 8 Supreme Court Justices of all time...

... and includes William Rehnquist.

When I was clerking at the court in the early 1980s, Rehnquist told me that the court was like a ship that had become badly tilted — and he made a gesture, signaling that the court had tilted left....

Reducing federal power and limiting the reach of numerous Warren court rulings, Rehnquist... succeeded in restoring what he considered to be the right constitutional balance.

I was going to make a list titled 9 Things Justice Scalia said in his New York Magazine interview.

Most interviews with Supreme Court Justices are not even worth that. The Justices say such predictable things that I might pull out the most interesting thing or, not finding one, I skip blogging it altogether. But this interview by Jennifer Senior is so good (and long) that as I read it (before getting out of bed just now) I decided I'd pull out 9 items (the number 9 pops into my head when I'm thinking about Supreme Court Justices) and do something like:

1. He calls DVDs "CDs" (and the "CDs" in question are episodes of "Seinfeld").

2. He thinks "blurbing" on the internet is narcissistic and interferes with the process of becoming a good writer.

3. He's most proud of his opinion in Morrison v. Olson (where he's the lone dissenter in the decision that found the Independent Counsel law constitutional).

4. He thinks Congress is truly dangerous — if only it would actually use the powers it has.

5. He's not "a fan of different levels of scrutiny" in constitutional interpretation.

6. He believes in the Devil, because it's Catholic doctrine, but maybe because it's a helpful metaphor.

7. He plays poker, claims to be good at poker, but is unfamiliar with the term "tell."

8. He has friends that he knows or "very much suspect[s]" are homosexual, and doesn't like the interviewer's suggestion that — re homosexuality — he's "softened."

9. To imitate Rehnquist, he "turns his nose up theatrically, flutters his hand in dismissal."

There are more than 9 things worth treating that way...

10. You have to be very careful picking law clerks because "one dud will ruin your year."

11. His dissents have the tone they do — "breezy" and with "some thrust" — because they're written for law students and law students will read that sort of thing.

12. Back in the 80s, Supreme Court opinions were loaded with the "garbage" of legislative history (and they're not anymore, and he takes credit for that).

13. He wants the Catholic Church to be more evangelistic.

14. He blames "The Gipper" for turning the State of the Union Address into the "childish spectacle" it's become.

15. He likes Bill Bennett's radio show.

16. He won't read The Washington Post anymore because it became so "shrilly, shrilly liberal" that he can't "handle it."

17. The worst thing about the Constitution, he thinks, is that it's way too hard to amend it.

18. He "repudiate[s]" his old statement that his originalism is "fainthearted."

But I decided (at the point of finally getting out of bed) that I wanted to do a series of posts on a number of topics, taking them on individually and blogging — or blurbing — my way through and going somewhere with the idea. It's the Devil topic in particular that made me want to do that. I know there are people who are linking to this interview just to say Scalia believes in the Devil, but — is the Devil making me do this? — I feel there's a lot in his discussion of the Devil that needs to be taken apart and examined. The blog will blurb and burble.

ADDED: Here's the promised Devil post. And here's a post about a topic that isn't represented on that list of 18 things.

"This result is a good one if you like free speech, and fear that government funding can be used as a powerful tool to shape private speech (potentially thought, too)."

"But make no mistake about the context: Roberts and Alito are gearing up for a world where exemptions and protections from generally applicable laws will be sought primarily by conservative groups. The main framework will probably be religious liberty, which opponents of same-sex marriage have increasingly identified as the value under attack when government recognizes same-sex marriage and requires various organizations to do the same. But free exercise of religion is in the First Amendment, too. If he could be made to understand the new emerging politics of the First Amendment, Rehnquist’s anguished ghost might be appeased."

Writes Harvard lawprof Noah Feldman, about the Supreme Court's decision today in Agency for International Development v. Alliance for Open Society International, Inc. (which we've been talking about in some detail, here). Feldman's article, at Bloomberg.com, is titled "Roberts's Liberal Ruling Will Protect Conservatives."

Read the whole thing to understand the role of "Rehnquist’s anguished ghost."

"No one would be in trouble over this scandal if only David Corn had the news judgment to recognize a nonstory."

Says James Taranto. The distinction between this bland chat about things Ashley Judd wrote in her memoir is nothing like the explosive conversation in Bartnicki v. Vopper, the Supreme Court case that said "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."

[M]embers of the Pennsylvania State Education Association discussed violently retaliating against school board members who were their adversaries in collective-bargaining negotiations. A quote from the tape: "If they're not gonna move for three percent, we're gonna have to go to their, their homes.... To blow off their front porches, we'll have to do some work on some of those guys...."

In Bartnicki, Justice Stevens (joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer) says there's "a conflict between interests of the highest order — on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech." But: "The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it." And: "It would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party." 

Justice Souter "sort of got the joke about being a Supreme Court Justice."

Says Jeffrey Toobin.

He didn't have an answering machine on his phone. He was late for William Rehnquist's funeral because they couldn't leave a message and find out where he was. He doesn't like electric lights to read. He moves his chair around his office over the course of the day for the sunlight. But the great thing about Justice Souter is that he sort of got the joke about being a Supreme Court Justice and he understood that he was important but it wasn't all about him.

Which might explain his graceful retirement. I sometimes wonder about those Justices who hang on for decades and into extreme old age. Why don't they think there should be more rotation of new individuals into those chambers?

Toobin's new book is "The Oath: The Obama White House and the Supreme Court." It's full of interesting material.  I'm enjoying it.

Courts can decide whether the State Department can decline to follow Congress's statute allowing Americans born in Jerusalem to have their passports say "Israel."

The question is justiciable — it's not within the "political question doctrine" — says the Supreme Court today, in an opinion, Zivotofsky v. Clinton, written by Chief Justice Roberts. Roberts states the doctrine in the one-line form that Chief Justice Rehnquist used in Nixon v. United States (1993): Is there "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." (The language comes from the 1962 case Baker v. Carr, but Baker v. Carr phrases the doctrine in terms of 6 factors. The Nixon version refers only to the first 2.)

The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” 511 F. Supp. 2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....

The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise. 

Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983)....

Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department." Are there "judicially discoverable and manageable standards"? It might seem so if you think the question is the political status of Jerusalem, the Chief writes, but the issue is whether the statute is constitutional: Can Congress interfere with the Executive and create the right that Zivotofsky now asserts? The answer may be no, but that's the answer on the substantive constitutional merits, not a determination that the courts may not reach the substantive merits. Reciting all the arguments for and against congressional power, Roberts reject the notion that they show why judges cannot answer the question:

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.

So the "political question" argument fails and the case returns to the D.C. Circuit court to get on to the substantive merits.

"You're a Supreme Court Justice. I'm not. That gives you the right to judge things. That's very convenient."

Stephen Colbert interviews Justice Stevens:

"I am told that Bill [Rehnquist] sometimes used rather strong language..."

"... to voice his disapproval of unfavorable rulings by the referee in his son’s games. With regard to his colleagues, he used somewhat milder language, though it was still emphatic. He often described the harsh consequences of his strict enforcement of a rule that seemed inequitable to some of us as 'tough tacos.' Bill had a good sense of humor, but unlike some of his colleagues, he seldom displayed it at oral arguments."

Writes retired Supreme Court Justice John Paul Stevens in his new book "Five Chiefs: A Supreme Court Memoir," which I've been reading.

Bush on Harriet Miers, John Roberts, and Samuel Alito.

Jan Crawford finds the stuff about Supreme Court nominations in Bush's book, "Decision Points":

"While I know Harriet would have made a fine justice, I didn't think enough about how the selection would be perceived by others," Mr. Bush writes. "I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington."...

--After he tapped Roberts for chief justice when William Rehnquist died, he only considered women candidates to replace O'Connor. "I didn't like the idea of the Supreme Court having only one woman."

But Roberts was originally picked for the O'Connor position.  The idea of appointing a woman, then, didn't matter all that much.

--There were "frustrating roadblocks" for most of the women candidates. When several senators said they were impressed by Miers, he concluded "she would make an outstanding justice." Miers was "shocked" when he asked if she was interested.

--No one in the White House ever suggested conservatives would revolt over her nomination. Bush suggests the opposition was elitist because Miers didn't go to an Ivy League school and "is not glib."

In addition to Miers, Bush says he considered Patricia Owen, but he thought Miers would be easier to confirm. After all the trouble with Miers, he switched to Alito, who, he writes, was "ill at ease" with Bush at first. Bush relaxed him by talking about baseball.

Bush says wanted to avoid appointing another Souter — Souter, who disappointed Bush's father, by "evolv[ing] into a different kind of judge."

--Roberts was not the unanimous choice. Vice President Cheney and Attorney General Alberto Gonzales backed Judge Mike Luttig. Miers supported Alito. Chief of Staff Andy Card and adviser Karl Rove favored Roberts. (Which means J. Harvie Wilkinson and Edith Brown Clement, the other two contenders early on, didn't have prominent backers.)

--Brett Kavanaugh, now a federal appeals court judge, told Bush Luttig, Alito and Roberts would all be solid justices. He suggested Bush ask a "tiebreaker question" of which man would be the most effective leader. To Bush, that was Roberts.

It seems that Roberts has a special appeal to Bush, who liked his "gentle soul" and "quick smile."

Margie Phelps, a daughter of Fred Phelps, will be arguing before the Supreme Court today.

The issue is freedom of speech, and the speech in question is repulsive. (Phelps's church protests near military funerals, with signs like "Thank God for Dead Soldiers," to express the view that God is punishing the U.S. for its immorality.) The father of one soldier sued for intentional infliction of emotional distress — which is a tort — and won $5 million against the church.

Much more detail at SCOTUSblog.  This is telling:

[T]his case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.

Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.

The quality of legal advocacy... is that meant as a laugh line? How did it happen that the work of upholding First Amendment rights is in the hands of Margie Phelps? I don't know the story, but it's not that the usual free speech defenders have failed to support these profoundly unpopular and ugly speakers. There are amicus briefs from the ACLU and from law professors in support of the Phelps group.

It will be interesting to see how Margie Phelps carries out her lawyerly task. Back in 2004, Michael Newdow argued his own case in the "Under God"/Pledge of Allegiance case and his nontraditional, passionate style seemed to work rather well.

Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case.... But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described ''under God'' as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.
The vote was unanimous, Dr. Newdow said.

''Well, that doesn't sound divisive,'' the chief justice observed.

Dr. Newdow shot back, ''That's only because no atheist can get elected to public office.''

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared ''if there's any more clapping.''

I doubt if there will be any clapping for Margie Phelps. Or any dinner-table-style repartee. She's coming in from the other end of the God spectrum, and we shall see how that sounds.