"Having watched the arguments in the same-sex marriage cases, it is hard for me to imagine how they would have been different..."

"... if small, unobtrusive cameras had been there to record what was going on. With or without cameras, Justice Antonin Scalia was his spirited self, demanding that lawyer Theodore Olson tell him 'when did it become unconstitutional to exclude homosexuals from marriage?' Olson's sharp reply would not have been different with cameras on hand. 'When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?' Olson said. Judges and lawyers with experience before cameras in other courtrooms universally say that, especially at the appellate level, the questioning, listening and responding demand all their faculties. They soon forget cameras are there."

Writes Tony Mauro.

Now, we don't get video, but we do get this. I've clipped the same section Mauro refers to:

So then, what more would we have with video, and is it important? I remember opining on this subject back in 2005. I thought of it in terms not only of public access but as a check on the Court:

What if there were 2 openings on the Supreme Court? Would it help or hurt the Democrats?

Tony Mauro muses:

Stories raising the possibility that justices John Paul Stevens and Ruth Bader Ginsburg may leave at roughly the same time have suddenly become part of the Washington conversation, already fueling nightmare scenarios of dragged-out battles between a weakened President Barack Obama and a fiercely contentious Senate over possible replacements.

"Republicans are out for blood, and Democrats are out for a fight," said Steve Wermiel, professor at American University Washington College of Law. "We're close to a peak of partisan wrangling in Washington.... We all believed you wouldn't dare filibuster a Supreme Court nominee because everyone recognized that the Supreme Court needs to do its work... That assumption may be less true than it once was."

... [I]n a strange way, two vacancies at once might actually help Obama push through at least one liberal nominee. President Ronald Reagan perfected that strategy from the conservative side in 1986 when Chief Justice Warren Burger retired. Reagan nominated William Rehnquist, then an associate justice, to move up to chief and named Antonin Scalia to replace Rehnquist as associate justice. That meant hitting the Senate with two nominations at once. The Senate could only stomach one bruising battle that summer, it appeared, so Rehnquist took the heat while Scalia, who arguably should have troubled Democrats even more, sailed through without a dissenting vote.

That was pre-Bork. And the game changed post-Bork. There will be no stealth appointment anymore.

... Nan Aron of the liberal Alliance for Justice struck an optimistic note. "Let's be positive," said Aron, a veteran of confirmation wars. "Two vacancies on the Court gives the president a historic opportunity to appoint justices who will begin to change the national discussion around critical issues affecting the environment, consumer protections and civil rights."

Thanks for the (unnecessary) heads-up, Nan.

Lawprof Doug Berman says:

I urge Prez Obama pick more "first" types of nominees, which could involve any varied combination of gender, racial, ethnic and/or professional and personal backgrounds.  I also urge him to nominate whichever "first" he thinks will make the best Justice, and to name this person as quickly as possible after a sitting Justice announces she or he is stepping down, and to urge hearings and a vote on this nominee ASAP.  I believe that following this script will, for all practical purposes, prevent a filibuster no matter what the perceived politics of the nominee.

Yes, be very quick! That'll stun the opposition. Perhaps Obama can, early on, do his "the time for talking is over" routine. That's worked well for him. Surely, if you nominate a couple people and don't give us time to study their background, the GOP will be lulled into honoring the tradition against using the filibuster. Absurd!

Glenn Greenwald flails absurdly in a lame effort to take down Justice Alito.

Really, it drives me crazy to try to plow through the unedited dreck that Greenwald writes, but I feel compelled to defend Justice Samuel Alito who, when affronted by President Obama's accusation that the Supreme Court violated judicial norms, simply shook his head and mouthed (apparently) "not true."

Greenwald accuses Alito of "a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court." Further! Presumably, you're already against the Supreme Court, and Greenwald isn't using this post to bring you up to speed.

It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. 

Uh, yeah, which is why Obama's words were such an affront. Obama called the Citizens United case a "wrong," that is, a legal outrage of some sort, but, obviously, Alito's position is that the Court decided the case according to the law, that it said what the First Amendment means, and that its legal expertise is entitled to respect.

Alito's response didn't signify political disagreement. It was simply self-defense — a defense of the Court. It meant: We decide cases according to the law. That is apolitical.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten [the Court's] decline.

Shaking one's head and mouthing 2 or 3 words is "flamboyant"? Alito was sitting in his seat and he evinced a subtle reaction to a severe political attack. That doesn't make what he did "highly politicized." If anyone was "highly politicized," it was Obama. Alito's response was more of a reflex, and it was, I would assume, grounded in a belief that the Court does what it is supposed to do — decide cases according to the law.

On a night when both tradition and the Court's role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow -- a conservative Republican judge departing from protocol to openly criticize a Democratic President...

Oh, bullshit. He's a sideshow because he flinches when hit? He's modestly human and not a mannequin. I remember when Obama expressed a desire for Supreme Court Justices with a more sensitive emotional response. Empathy.

Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling. While the factual claims Obama made about the ruling are subject to reasonable dispute, they're well within the realm of acceptable political rhetoric and are far from being "false"...

But shouldn't Obama have shown some respect for the members of the third branch of government who honored him with their presence? What is the "acceptable political rhetoric" when one person has the microphone for over an hour and everyone else is supposed to listen respectfully? Really, if it were known in advance that Obama wanted to use the occasion this way, the Supreme Court Justices should have stayed home. Or send over 1 or 2 that do opinions that the big man likes.

While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either. 

The link goes to Tony Mauro at The Legal Times, who says that this kind of talk is "almost unprecedented." "Almost unprecedented" = "far from unprecedented"? Come on, Glenn. Your sleaziness is showing.

[Alito] unmasked himself as a politicized and intemperate Republican as well. 

Huh? Alito flinched at a surprising jab. The President told the Justices to their face that they were, essentially, power abusers. It's not "Republican" to believe that your work is dutiful and honest. (Is it?) Alito's gestures meant nothing more than that.

Yale Law Professor Jack Balkin documents that roughly 25% of Franklin Roosevelt's 1937 State of the Union address was devoted to criticizing the Supreme Court and various rulings which struck down his domestic legislation. 

Roosevelt's attack on the Court — quoted by Balkin — was, at the most severe point: "We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good." Think about how much more respectful that was toward the Court than the blow that made Samuel Alito flinch last night.

Greenwald concludes:

Whatever one thinks of the one paragraph of Obama's address devoted to the Citizens United ruling, it was not "unprecedented."

Who is he quoting there? Balkin doesn't say "unprecedented." Is it Mauro's "almost unprecedented"? For all his annoying verbiage, Greenwald can't get anywhere in this effort to show that Obama was just fine and Alito did something outrageous. Pathetic!

Sotomayor and baseball (and Brad Snyder).

On the occasion of Sonia Sotomayor's throwing out the first pitch at a Yankee game, Tony Mauro talks to my colleague Brad Snyder:

The University of Wisconsin Law School professor has written extensively about the long relationship between the Supreme Court and baseball, and he already thinks Sotomayor is "the most important federal judge in the history of baseball besides Judge Kenesaw Mountain Landis." Sotomayor's 1995 ruling as a federal district court judge ending the baseball strike...

Judge Landis... was the first federal judge to become known as having "saved baseball," back in 1915. The Federal League had filed an antitrust challenge to Major League baseball, claiming it was a huge illegal trust. Knowing it was a hot potato, Landis sat on the case without acting on it until the Federal League folded. Landis then became baseball commissioner. "Justice Sotomayor is a much better judge than Judge Landis," said Snyder.

And here, you can buy Brad's excellent books: "Beyond the Shadow of the Senators: The Untold Story of the Homestead Grays and the Integration of Baseball" and "A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports."

Justice David Souter describes the Supreme Court term as "sort of annual intellectual lobotomy."

That slipped out along with some lofty comments about how people need to read more and how he's forced to do his serious reading in the summers between Court terms.

That makes some people, like Tony Mauro, the author of the linked article, wonder about rumors that he may be leaving the Court:

If he thinks of his work on the Court, even sarcastically, as a nine-month-long, brain-evacuating experience, it is easier to see why he would want to leave it behind -- if nothing else, to catch up on his reading.

Others I'm sure would put that more harshly: If you don't appreciate the great work of the Supreme Court, get the hell out.

Me, I would speculate that he's fine with the Supreme Court work and he was just being funny — and effusive about the value of serious literature.

ADDED: On reflection, I think the problem he's talking about is something I experience as a law professor. I love the work, but it requires me to devote most of my reading time to judicial opinions and lawprof articles and books. This kind of reading is useful raw material for doing what one loves to do, but it isn't enriching on a deep enough level.

My main problem with Souter is that he is one of the judges who writes the long tedious opinions that I have to chew my way through. May I suggest that if he wants more of a challenge during the Court's term that he devote himself to writing better sentences? Just on the Strunk and White level, could you please edit the hell out of those damned things?

If you don't like what reading that stuff does to your brain, why do you do what you do to my brain? If the Term for you is a lobotomy, consider that you are also the lobotomist!