"My guess is that regardless of what happens in Tom’s criminal case, SCOTUSblog will endure."

"Tom scaled down his involvement with the site years ago—if the indictment is to be believed, he had a lot of other things on his plate—and today SCOTUSblog is really run by Amy Howe, its main courtroom reporter, and Ellena Erskine, its editor. I see no reason why Amy, Ellena, and SCOTUSblog’s nine regular contributors can’t continue their excellent and invaluable work. I don’t know—and can’t imagine—what’s going on in Tom and Amy’s marriage right now... If Tom and Amy go their separate ways (or even if they don’t), they should squarely place all ownership and control of SCOTUSblog in Amy’s hands.... And as a loyal reader of SCOTUSblog pretty much since its inception, I hereby volunteer to do anything in my power to keep it up and running...."

Writes David Lat, in "SCOTUSblog Founder Tom Goldstein Hit With 22-Count Federal Indictment/A lengthy indictment accuses the once high-flying Supreme Court lawyer of massive tax evasion—tied to multimillion-dollar poker losses and multiple affairs" (Substack).

Lat thinks Goldstein's future is not all used up: "He’s only 54, and he still has the intelligence, hard work, and hustle that allowed him to launch a leading Supreme Court website and become one of the nation’s top SCOTUS advocates, even though he never clerked for the Court or graduated from an elite law school. And if the allegations are true, Tom has an unimaginable amount of energy: he was somehow able to argue before the Supreme Court, run a law firm, win and lose tens of millions in high-stakes poker, juggle a dozen women, oversee SCOTUSblog, and raise two kids... He also helped develop a pitch for a television show based on his life and career, which got picked up for development by NBC in 2009. The program, tentatively called Tommy Supreme, never made it to the screen...."

But now the story is far more exciting — especially if he's guilty. Lat sketches out possible futures for Goldstein — including "a pardon from Trump." And, interestingly, Goldstein published "End the Criminal Cases Against Trump" in the NYT (last November, just after the election). But if the idea is to produce a great redemption story —  worthy of that TV show — it can't end with a presidential pardon.

"Breaking: key vote Kennedy VERY uncomfortable striking down #prop8."

"Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling."

There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time

SCOTUSblog tweets from the oral argument.

Note the significance of "Would leave in place 9th Cir pro-#ssm ruling." Prop 8 will still be stricken down, because that's what the 9th Circuit decided. I want to see the transcript (and hear the oral argument) before reacting too much to these characterizations.

So Kennedy performed the Theater of the Very Uncomfortable. That could set the stage for exercising the very painful duty of pronouncing a law a nullity. It's supposed to hurt! It's not what we want, but what we must do.

(Calling judicial review a "painful duty" has a long pedigree.)

MORE: Here, from SCOTUSblog's Tom Goldstein:

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8....

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn't mean he won't join them in the end.

I'll say more when I've heard the argument myself. 

"[A] majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act..."

Writes Tom Goldstein after the oral argument in the Supreme Court today:

The vote seems quite likely to be five to four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.

Adam Liptak recounts the "tough questioning... from the Supreme Court’s more conservative members":

Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”

The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.

“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”

I look forward to reading the transcript later today. The issue isn't whether there are still some racial inequities in voting procedures, but whether federal law can continue to treat some states differently from others based on a calculation using statistics from 1972.

ADDED: Here's the transcript (PDF). I'll extract some good parts when I can.

9 minutes in June — reporting the Obamacare case.

Tom Goldstein — of SCOTUSblog, which got it right — examines the details of how CNN and FoxNews got it wrong.

10:08:30.... On the blog, readers are starting to taunt us via our comments feature (there ultimately will be 13,500 comments over the course of the Live Blog):  Guest, “CNN was first, guys…”; Bill, “Fox is already announcing decision”; yolanda, “TV just announced the decision beat you to it”; Guest, “Fox News beats soctusblog….”

Rush Limbaugh — calling SCOTUSblog "a very, very left-wing blog" — explains "the left's" "full swing" "effort to intimidate" the Supreme Court.

That took me aback, because I'm so used to viewing SCOTUSblog — which I read all the time — as a very authoritative and relentlessly sober source of information about what's going on in the Supreme Court.

RUSH: There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.... The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself....

Tom Goldstein predicts the outcomes (and the authors) of the final 4 Supreme Court cases of this Term.

To be announced tomorrow morning:

1. Bilski v. Kappos:

The only Justice who has not issued a majority opinion from [the November] sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights...

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents.

2. Free Enterprise Fund v. Public Company Accounting Oversight Board:

[N]either the Chief Justice nor Justice Kennedy has authored an opinion from [the December] sitting... [but] Chief is ... unlikely to leave himself without an opinion in a sitting.

If I’m right, that means that the PCAOB’s structure is likely to be invalidated as unconstitutional. At oral argument the Chief Justice asked no questions of counsel to the plaintiffs and was hostile to the defense of the statute....

3. McDonald v. City of Chicago:

[T]he only Justice not to write from [the February] sitting is Justice Alito....

I predict that Justice Alito will write the Court’s opinion in McDonald recognizing that the Second Amendment is incorporated [in the 14th Amendment and thus applicable to state and local government]....

4. Christian Legal Society v. Martinez:

Neither Justice Stevens nor Justice Ginsburg authored an opinion from [the April] sitting....

Though it is very difficult to tell, I think that the most likely outcome in these circumstances is that Justice Ginsburg will issue a majority opinion in favor of Hastings Law School on the relatively narrow basis that the plaintiffs stipulated that the school had a neutral “all comers” policy that did not discriminate against this group but instead provided that all groups must accept all students

We shall see. It's a big Supreme Court day tomorrow. The Court's Term ends, with the retirement of Justice Stevens, and the hearings on the Kagan nomination begin.

Tom Goldstein predicts that Obama will nominate Elena Kagan for the Supreme Court.

He'd already predicted it, and he still thinks so:

It seems clear to me that none of the three nominees—including even Diane Wood—will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections....

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood’s abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured....

It is ... true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists.... So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president....

On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well.... Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.

I don't quite get it. Why won't Obama give liberals what they want? The strongest argument for Kagan over Wood seems to be age. Kagan's 49. Wood is 59.

Sotomayor!

It's Sotomayor!

ADDED: Tom Goldstein analyzes the political dynamics of the nomination. He says Obama will not need to "invest additional political capital" over confirmation.

... Republicans cannot afford to find themselves in the position of implicitly opposing Judge Sotomayor. To Hispanics, the nomination would be an absolutely historic landmark....

... Sotomayor has an extraordinarily compelling personal narrative. She is a first generation American, born of immigrant parents. She grew up in a housing project, losing her father as an adolescent, raised (with her brother) by her mother, who worked as a nurse. She got herself to Princeton, graduating as one of the top two people in her class, then went to Yale Law. Almost all of her career has been in public service–as a prosecutor, trial judge, and now appellate judge. She has almost no money to her name.

Goldstein thinks Republicans will (should?) wait until Obama's next nomination to stage a fight — the way the Democrats went easy on John Roberts and fought hard against Samuel Alito.

To the extent that there is opposition, it will fall into 4 categories, Goldstein says: 1. that she's not smart enough, 2. that she's "a liberal ideologue and 'judicial activist,'” and 3. that she's "unprincipled or dismissive of positions with which she disagrees," and 3. that she's "gruff and impersonable." Goldstein outlines the response to these 4 arguments.

Here's what I think conservatives should do: Accept that she will be confirmed, but use the occasion to sharpen the definition of conservative judicial values and to argue to the American people that these are the better values.