Justice Alito's mugging for the camera was no better than Joe Wilson's outburst

A quick note from Pablo Fanque,

All This Is That National Affairs Editor

Wasn't Justice Alito's scowl & mouthing "not true" at the camera maybe even worse than Rep. Wilson's "You lie" earlier this year? Step down, you contemptible, windbag and take Scalia with you...preferably feet first.

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Pablo Fabque: This is a mind f***er of all mind f***ers: David Boies and Theodore Olson get in bed together to fight for gay marriage

By Pablo Fanque
All This Is That Jurisprudence and Legal Editor



click to enlarge Messrs. Olson and Boies

I always thought of Theodore Olson as about a shade to the right of Heinrich Himmler or David Duke. I give him a halo for this one. On a side note, as you probably know, his wife, Barbara (a conservative commentator and lawyer), was on the 9/11 'plane that crashed into the Pentagon. And now he has joined up with his old adversary David Boies (you may remember their little case that tossed the entire election George Bush's way--Bush v. Gore) to challenge California's Proposition 8.

It’s pretty cool to see him make the leap—much more satisfying that someone like Arlen Specter, who really did it to save his own skin. Olson can’t be loved by the GOP for this. Maybe it’s the Boalt Hall/Berkeley in him finally coming out?

Olson and Boies's case argues that California's voter-enacted ban on same-sex marriage, known as Proposition 8, violates the U.S. Constitution's guarantee of equal protection and due process.

Numerous gay/lesbian groups and others have said they want to work through the states, and not make a federal case of it! It's too early, they say, and the Supreme Court--where this will inevitably end up (at least the injunction on enforcing Prop. 8 will)--is not ready to hear the case. Boies and Olson think otherwise:

"There will be many people who will think this is not the time to go to federal," Olson said Wednesday at a news conference in Los Angeles. "Both David and I have studied the court for more years than probably either one of us would like to admit. We think we know what we are doing." Cocky, yes, but also probably true.

Their lawsuit in U.S. District Court in northern California last week asked for an immediate injunction against Prop. 8 until the federal case is resolved.

"It's not about liberal or conservative, Democrat or Republican. We're here in part to symbolize that. This case is about the equal rights guaranteed to every American under the United States constitution," said former Solicitor General Olson, a well=known and connected Republican. "For too long, gay men and lesbians who seek stable committed, loving relationships within the institution of marriage have been denied that fundamental right," he said.

Olson said he asked Boies, a Democrat, to join his team to present "a united front" in the suit filed on behalf of two same-sex couples who wish to be married but, because of Proposition 8, have been denied licenses.

"Our Constitution guarantees every American the right to be treated equally under the law," Boies said. "There is no right more fundamental than the right to marry the person that you love and to raise a family."

"The courts exist to reverse injustices," he went on. "This is not a question of state law. It's a question of federal Constitutional law."

The California Supreme Court Tuesday upheld Prop. 8, the ballot initiative passed by 52% of voters in November. Prop 8 defines marriage as between a man and a woman. California was the second state after Massachusetts to legalize gay marriage. Since then, Iowa and Connecticut have legalized gay marriage, and legislatures in Vermont and Maine also recently legalized gay marriage.

Hurrah for Theodore Olson. You surprised and gladdened me.
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Justice Souter throws in the towel

By Jack Brummet
All This Is That Law and Justice Commentator


Click the Justice to enlarge - illustration by Jack Brummet

Supreme Court Justice David Souter is just about to announce his own bail-out plan. . I may be wrong, but I can't remember another Justice recently (ever?) who actually retired, other than Sandra Day O'Connor. Justices usually leave the court feet first. Don't they?

Justice Souter will retire at the end of the term in June. I was hoping the first retiree would be from the other wing of the court. The thing I've always loved about Souter was that following his 1990 appointment, by George Bush the Elder, he rapidly became one of the Court's staunch liberals. A good friend of mine was a law clerk for him before the appointment. I remember her saying "don't worry. You'll be surprised. So will George Bush."

The rumors circulating say that Souter has had it with Washington, and wants to get out while he can still actually enjoy retirement in New Hampshire.

It's been many (15?) years since a Democrat was even able to name a nominee. And this time. . .our President has a [growing] majority in the Senate. He could probably get Angela Davis confirmed if he put his mind to it.

The alleged/possible/trial balloon short list of replacements includes Elena Kagan (the solicitor general), and Sonia Sotomayor and Diana Pamela Wood--both appellate court judges.

This will be pretty sweet for BHO. . .he is getting his first court opening in the first few months of his Presidency. George W. Bush--thank God--had no openings until well into his second term,
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Seven years ago today, The Supreme Court put the screws to the American people

Bush v. Gore, 531 U.S. 98 (2000), is the United States Supreme Court case heard on December 11, 2000. Do you remember we had to wait over a month to find out who "won" the election? It only took the court one day to render a decision.

In a per curiam opinion (ed's note: A "per curiam" decision is delivered in an opinion issued in the name of the Court rather than specific justices. In short, I think it means no one personally wants the stink upon themselves of their almost criminally partisan decision) by a vote of 7-2, the Court (to at least one of their rumored later regrets) held that the Florida Supreme Court's scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature.

The decision ended the whole circus—thousands of lawyers and observers, fixers, and spin-meisters, bagmen, horse-traders, and talking heads flown in to the swampy scene of massive voter fraud and election board malfeasance—and allowed Florida Secretary of State Katherine Harris's previous certification of George W. Bush as the winner of Florida's electoral votes to stand. Florida's 25 electoral votes gave Bush, the Republican candidate, 271 Electoral College votes, defeating Democrat Al Gore, who had won the majority of the popular vote. Al Gore went on to become a crusader for the environment, and win the Nobel Peace Prize. George Bush presided over an unpopular war, episodes of criminality in the White House, and numerous domestic disasters, economic setbacks, and an enemy attack on U.S. soil, and will probably be remembered best for the war he fomented, and his cure for all that ails the country, and world—widespread retrenchment of civil liberties.

Supreme Court of the United States
Argued December 11, 2000
Decided December 12, 2000

Full case name: George W. Bush and Richard Cheney, Petitioners v. Albert Gore, Jr., et al.
Docket #: 00-949

Citations: 531 U.S. 98; 121 S. Ct. 525; 148 L. Ed. 2d 388; 2000 U.S. LEXIS 8430; 69 U.S.L.W. 4029; 2000 Cal. Daily Op. Service 9879; 2000 Colo. J. C.A.R. 6606; 14 Fla. L. Weekly Fed. S 26

Prior history: On writ of certiorari to the Florida Supreme Court

Argument: Link to Oral Argument

Holding: "In the circumstances of this case, any manual recount of votes seeking to meet the December 12 “safe harbor” deadline would be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. "

Court membership: Chief Justice: William Rehnquist; Associate Justices: John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer

Concurrence by: Rehnquist
Joined by: Scalia, Thomas
Dissent by: Stevens
Joined by: Ginsburg, Breyer
Dissent by: Souter
Joined by: Breyer; Stevens, Ginsburg (all but part C)
Dissent by: Ginsburg
Joined by: Stevens; Souter, Breyer (part I)
Dissent by: Breyer
Joined by: Stevens, Ginsburg (except part I-A-1); Souter (part I)

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Are the Supremes about to rule on the constitutionality of gun ownership?

click to enlarge collage (copyright 2006 All This Is That)

The Supremes could decide the constitutionality of gun ownership, and we may know as early as tomorrow whether or not they decide to take the case. To those of us on the anti- side, it seems obvious.

You may remember during his confirmation hearing, that Chief Justice John Roberts said the Miller decision (dating back to the 1939) "side-stepped the issue" and left "very open" the issue whether the second amendment protects an individual right, or a more collective right.

Both anti gun and pro-gun forces (or, peace freaks and gun nuts) have urged The Supremes to take on this case (questioning the constitutionality of the the District of Columbia's strict gun-control law). If the justices agree to hear the case, the Roberts court will find itself square in the sights of a culture war that makes the abortion issue look like a sandbox altercation (because the pro-gun forces are well-armed, and a little bit kooky).

click to enlarge Chief Justice Roberts

Does the Second Amendment to the Constitution protects an individual's right to "keep and bear arms?" If the answer is yes, as a federal appeals court held last March, the Supremes must decide how this impacts a statute that bars possession of handguns and requires all guns in the home to be disassembled or protected by trigger locks.

It has been almost 70 years since the court even danced around the gun control issue. In 1939, the United States v. Miller, held that a sawed-off shotgun was not one of the "arms" to which the Second Amendment referred in its "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The District of Columbia is not a normal city (its gun law was passed in that heady first year of home-rule) and the law has pissed off "right to bear arms" types since it was passed in 1973. Even the allegedly apolitical Supremes must be wary of taking on this issue in an election year. November 4, 2008 looms large.

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