bmaz | emptywheel

5th Amendment Silence: One Day In Salinas We Let It Slip Away

By: bmaz Monday June 17, 2013 2:08 pm

There is a famous line in the famous Kris Kristofferson song “Me and Bobby McGee” that reads:

Then somewhere near Salinas, Lord, I let her slip away

Today the United States Supreme Court let a bit of the 5th Amendment backbone right to silence slip away down the slippery slope. In the case of Salinas v. Texas, with Justice Alito writing for the Court (rarely a good sign), it was held that a criminal defendant’s silence can be used against him at trial. This is a stunning decision placing a knife blade in the age old general rule that a defendant’s silence cannot be taken against him at trial.

The facts, as laid out in the court’s syllabus are as follows:

Petitioner [Salinas], without being placed in custody or receiving Miranda warn- ings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the pros- ecution’s use of his silence in its case in chief violated the Fifth Amendment.

Alito held that petitioner’s Fifth Amendment claim fails because he did not “expressly” invoke his privilege to silence affirmatively in response to the police officer’s questions. The upshot is that the word “silence” in “right to silence” does not necessarily mean “silence”. This follows a long line of similarly disquieting cases going back to the likes of the 1984 decision in Minnesota v. Murphy to the quite recent decision in Berghuis v. Thompkins, where the Court held that a defendant failed to invoke his Miranda right by remaining silent for nearly three hours.

The difference between the Berghuis line of cases and the Salinas decision today, however, is huge. The Berghuis line all involved admissibility of evidence, whether statements or physical evidence, in the face of Miranda rights. Today’s decision in Salinas travels a light year past that and allows the prosecution at trial to infer a defendant’s guilt from his silence.

So, one might think a waiver of this magnitude of one’s Fifth Amendment privilege must be voluntary and affirmative, not so according to Alito:

We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.

But, by far, the biggest problem with the Salinas decision is the extension of the old doctrine Continue reading →

Fast Times At Monaco High – Memorial Day Trash Talk

By: bmaz Saturday May 25, 2013 9:18 am

Hey there fellow lugnuts at the Emptywheel garage, how about some Memorial Day Holiday Trash Talk? We haven’t taken out the trash lately, so it is time. There are a few things on tap to chat about.

First up is the Gran Prix de Monaco, the crown jewel of the Formula One season. F1 is a sport of the masses across the world in many ways, but the constructors, participants, and the circus that follows them are without question the elite, rich and beautiful. You see the elegance at any F1 race, but nothing compares to Monaco. Technically speaking, Monaco is somewhat of a processional – passing is nearly impossible and the key to the race is qualifying position and pit stop strategy. If you start in the front you have a good shot at finishing there. But no race is as valued by the drivers and history, nothing has the cache of a win at Monaco.

It has been an interesting season to date. Mercedes, Ferrari, Lotus and Red Bull are all solid and in the hunt. Sebastian Vettel leads the drivers’ standings with 89 points, Kimi Raikkonen just behind with 85 and Ferrari’s Fernando Alonso closing in with 72. Hamilton Massa and Webber are in a second group well back of the three leaders, but still well within contention for the year.

The all important qualifying is proceeding as I write this here trash; I will update when it is completed. Okay, qualifying just ended as I put this post up. Mercedes took the front row with Nico Rosberg on pole and Lewis Hamilton in P2. The second row is Red Bull with Vettel in P3 and Webber P4. Row 3 will be Raikkonen and his Lotus in P5 and Alonso and the red Ferrari in P6. You can bet the farm the winner will come from the first three rows, and likely the first two rows.

In a real holiday treat, NBC Sports Channel is airing the absolutely fantastic documentary “Senna” tonight, Saturday night, at 8 pm EST (5 pm PST). This is one of the finest sporting documentaries you could ever hope to watch whether you are an F1 fan or not. My wife, who knew nothing of Aryton Senna and F1 went with me when it premiered in the theaters two years ago and still raves about it. Highly recommended for viewing and/or DVRing.

Also this Sunday is, of course, the Indianapolis 500. The “Biggest Spectacle in Motorsports” is a far cry from what it once was, but it is still a great race to watch and always provides some excitement. The pole is held this year by Ed Carpenter, with Carlos Munoz and Marco Andretti sharing the first row. But Indy favors those that know the way to the winner’s circle, and there are two proven champs in the field I would watch out for, Helio Castroneves and Dario Franchitti. Both are three time winners. There are only three men who have won Indy four times – AJ Foyt, Al Unser and Rick Mears. It is an elite club, will there be a new member when the milk drinking is over?

There are also the NBA Playoffs underway, with both conference finals in progress. Last night the Indiana Pacers upset the Miami Heat in game 2 of the Eastern Conference finals in Miami. A huge win. Even more shocking, but for some boneheaded coaching and player selection in the last seconds of game one, the Pacers might be up 2-0 on the defending champs. Now the series heads to Indy. Both games have been nail biters; really good basketball. In the Western Conference finals, the Spurs are up 2-0 over the Memphis Grizzlies and appear to be well in control of the series.

Also underway is the NCAA College softball postseason. My ASU Lady sun Devils are 5th ranked and in a west Super-Regional against Kentucky, with a berth in the Women’s College World Series on the line. The best 2 out of 3 match is in Tempe at Farrington Stadium though where the Devils are 28-3 in post season play, so their chances look good for advancing. Also in an east Super-Regional is Jim White’s beloved, and 2nd ranked, Florida Gators. The Gators are heavy favorites over the University of Alabama-Birmingham. Will there be another showdown in the world Series between the Devils and Gators? I hope so, that would be big fun! Also looming large are powerhouses Oklahoma, Texas and Alabama. Believe it or not, Marcy’s team, the Michigan Wolvereenies are in play and already up a game in their Super-Regional. This could be a big time Emptywheel grudge smackdown World Series!

Lastly, holidays are about FOOD! Here at Casa de bmaz, we are grilling copious amounts of bird and beef, chased by a lot nice Mexican beer. What you got going, and why?

Federal Judge Blasts Joe Arpaio’s Racial Profiling and Detention Policy

By: bmaz Friday May 24, 2013 7:33 pm

In a scathing decision just entered by Judge Murray Snow in the District Court for the District of Arizona, the court has hammered the racial profiling and detention policies of Maricopa County Sheriff Joe Arpaio. The case is Melendres v. Arpaio, and the Arizona Republic described the decision thusly:

The Maricopa County Sheriff’s Office has engaged in racial profiling and must not use Hispanic ancestry as a factor when making law-enforcement decisions, a federal judge has ruled.

U.S. District Judge Murray Snow issued the ruling Friday, more than eight months after a seven-day trial on the subject concluded. The trial examined longstanding allegations that Sheriff Joe Arpaio’s emphasis on immigration enforcement led deputies to target Latino drivers based on their race, and that by doing so, they violated the constitutional rights of Maricopa County residents and the sheriff’s own policies requiring constitutional policing.
….
The class of Hispanic citizens that brought the racial-profiling lawsuit against the Sheriff’s Office never sought monetary damages. Instead, the group asked for the court to issue injunctions barring Arpaio’s office from discriminatory policing.

Snow obliged — and indicated more remedies could be ordered in the future.

Here is a link to the full decision.

The decision is long at 142 pages, but it is beautiful and contains specific findings of fact and conclusions of law that will make it hard to reverse on appeal to the 9th Circuit. There is no question but that Arpaio will appeal, but he will not be doing so from a good position in light of this decision.

Here are some quick highlights:

As is set forth below, in light of ICE’s cancellation of the MCSO’s 287(g) authority, the MCSO has no authority to detain people based only on reasonable suspicion, or probable cause, without more, that such persons are in this country without authorization.
…
Thus, the MCSO’s LEAR policy that requires a deputy (1) to detain persons she or he believes only to be in the country without authorization, (2) to contact MCSO supervisors, and then (3) to await contact with ICE pending a determination how to proceed, results in an unreasonable seizure under the Fourth Amendment to the Constitution.

And

Thus, to the extent it uses race as a factor in arriving at reasonable suspicion or forming probable cause to stop or investigate persons of Latino ancestry for being in the country without authorization, it violates the Fourth Amendment. In addition, it violates the Plaintiff class’s right to equal protection under the Fourteenth Amendment to the Constitution and Title VI of the Civil Rights Act of 1964.

And

Finally, the knowledge that a person is in the country without authorization does not, without more, provide sufficient reasonable suspicion that a person has violated Arizona criminal laws relating to immigration, such as the Arizona Human Smuggling Act, to justify a Terry stop for purposes of investigative detention. To the extent the MCSO is authorized to investigate violations of the Arizona Employer Sanctions law, that law does not provide criminal sanctions against either employers or employees. A statute that provides only civil sanctions is not a sufficient basis on which the MCSO can arrest or conduct Terry stops of either employers or employees.

There is a LOT of prime substance to this decision, and it all needed to be said. The fact that it comes with specific and articulated findings of fact and conclusions of law, after a trial, makes all the difference in the world as to strength. It is a treat for the Memorial Day weekend.

Scott Bloch Sentencing Blocked By The Court

By: bmaz Wednesday May 15, 2013 6:45 am

I have been a bit busy lately, so this is a tad late; but I should probably give the update on the Scott Bloch criminal sentencing that was scheduled for 9:30 am Monday morning May 13 in DC District Court in front of Judge Robert L. Wilkins. As you will recall, this blog has covered the Bloch case closely over the years due to its symbolism for government accountability and/or lack thereof.

The most recent coverage was immediately prior to the sentencing, and was in the form of a comprehensive post entitled “Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing”. As promised, a copy of said post was mailed to the court and it was entered on the docket. Several others sent letters as well, such as here for example.

The upshot is that Judge Robert L. Wilkins heard the voices. In what I can only describe as truly commendable, yet still refreshingly surprising, this is what happened at sentencing as described by Ann Marimow of the Washington Post:

The legal odyssey of Scott J. Bloch, the former head of the federal agency that protects government whistleblowers, continued Monday when a federal judge balked at proceeding with sentencing because of what he called an “improperly sanitized version of events.”
….
But U.S. District Judge Robert L. Wilkins chastised attorneys on both sides for presenting a narrow account of Bloch’s actions that the judge said doesn’t fully describe the conduct at issue. Wilkins said he was uncomfortable issuing a sentence until a fuller description of Bloch’s actions was in the record.

Sentencing documents, Wilkins noted, make little mention of Bloch’s previous deal with the U.S. Attorney’s Office in which he pleaded guilty to a misdemeanor charge of contempt of Congress.
….
In the current case, federal guidelines call for a sentence from zero to six months in prison. But prosecutors have agreed not to oppose a period of probation and want Bloch to pay a $5,000 fine and complete 200 hours of community service.

Wilkins suggested Monday, however, that he intends to consider Bloch’s conduct related to the previous case, which could expose him to jail time. The judge pointed specifically to Bloch’s position as a presidential appointee, a “position of public trust, operating with little oversight.”

Bloch’s sentencing hearing has been rescheduled for June 24.

We will try to do another update on status again before the next sentencing date on June 24. But, for now, hat’s off to Judge Robert L. Wilkins for hearing the voices of the public who object to the whitewash that was being applied to the misconduct in high office by Scott Bloch. Maybe there is hope for this Rule of Law thing after all.

Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing

By: bmaz Tuesday May 7, 2013 10:02 am

When this blog last substantively left the continuing saga of Bush/Cheney Special Counsel Scott Bloch, it was with these words:

So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:

Concurrent with this Motion to Dismiss, the government is filing a new information.

Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.

Yes, that is the “Reader’s Digest” version of how Scott Bloch came to be where he is now….awaiting sentencing in the United States District Court for the District of Columbia. For a crime that barely even references, much less is indicative of, the actual acts he committed against the United States Government, and the citizens it represents.

But, Bloch is indeed now facing sentencing on the latest cushy plea he has been afforded by the Department of Justice; sentencing scheduled for Monday May 13, 2013, less than one week from today. Here is Defendant Bloch’s sentencing memorandum, and here is the curiously collusive memorandum from the DOJ, who simply cannot stand for any Article II Executive Branch attorney being sent to jail/prison for lying to Congress because, seriously, many more might be in jeopardy if that was the case and precedent.

So, what is Mr. Scott Bloch doing? Taking his medicine quietly for having been given the gift plea by the DOJ to a misdemeanor after he actually committed such acts that appear by all legal rights to warrant felony allegations? Allegations as were described the last time Bloch was tried to be handed such a gift horse plea by the DOJ as:

…felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable.

Nothing has changed; not a single underlying fact has changed in the least, and Bloch still stands Continue reading →

Tsarnaev: Right to Counsel, Not Miranda, Is the Key

By: bmaz Monday April 29, 2013 12:25 pm

Since Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.

On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.

Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real Continue reading →

Final Four Championship Trash Talk

By: bmaz Saturday April 6, 2013 4:03 pm

BIG CHAMPIONSHIP GAME UPDATE!

Well, I was two for two in my predictions for the semi-final games Saturday. Considering the poor quality of my prognostications lately, that is smokin hot. So, I am back for more! The scouting really has not changed; Louisville still has the three headed punch and the big game skilz of Rick Pitino. the bo Merlots from Ann Arbor still have a freaking lights out assassin in Trey Burke and quality support in Hardaway, Nik Stauskas and Glen Robby Three Matchsticks.

The line tonight at press is Louisville -4. That sounds about right going in. The Wolverweenie fans are all yammering about whether or not Chris Webber will appear for a Fab Five reunion tonight. I, however, think it appropriate to call time out on that. Pitino, on the other hand, is trying to sell his troops that they are NC State Wolfpack like underdogs. That’s, shall we say, a little much.

Winner: Fuckin A, it’s gotta be THE BO MERLOTS!

[Special Championship music by the one, the only, Mr. John Cash. Yippy Yi Yoh!]

It seems every sporting season is so painfully stretched out now to milk the consuming public. The Super Bowl is now into February, The World Series into the cold winter of November and the NBA playoffs seem to take half a year. And here we are with “March Madness” about to enter the second week of April. With that bit of complaining out of the way, let’s take a look at what is left in the Final Four.

The first semi-final is Wichita State v. Louisville. The Shockers are not quite as shocking as their name suggests; they have had a marvelous tournament and deserve to be here. They are relentless on the glass, have size, speed and get on frequent lights out streaks from behind the three line. Hey, seriously, they took out both top seed Gonzaga and Ohio State on the road to Atlanta, that is pretty heady stuff. But this is Louisville’s second straight trip to the Final Four, and Rick Pitino has a flair for the big stage. He also has a triumvirate of studs from guard Russ Smith, to forward Chane Behanen to center Gorgui Dieng. The Cardinals are 10.5 point favorites. I think it will be closer than the spread, but Louisville moves on.

The second game today is the one of local interest, the one with Marcy’s Bo Merlots taking on the Orange Crush of Syracuse. Man, this one has even grouchy old me excited, and the best is clearly saved for last. Boeheim’s vaunted zone versus Trey Burke, the Big Blue one man zone buster. Wow, am really looking forward to this game. As is their Famous Fabulous Five Freputation, Michigan is loaded with young guns. Syracuse is a veteran group led by junior forward C.J. Fair and sophomore guard Michael Carter-Williams. Yes, that is what qualifies for “veteran in today’s NCAA Tournament, sad as it may be. The men in the Tim Hardaway family tree are known for mouthing off when they should have kept their idiot yaps shut, and Junior, a junior guard for the Merlots, is at it again, albeit it in a less homophobic way.

Syracuse is representing for the rump of what the mighty Big East once was. Jim Boeheim has made quite clear this will not be his last dance. But, it is the end of an era in college basketball. The line is Michigan -2. The talent portion of this pageant is on the Wolverweenies side, and with preparation, zones can be busted. I think the once and future promise of the wholesale raiding of West Virginia by the monsters in Ann Arbor pays off and Beilein and the boys in Blue make a beeline for Monday’s Championship game.

Music today by the J. Geils Band. One Last Kiss for the Final Four. Cut the nets down bitchezz!

Odds and Ends

By: bmaz Thursday March 28, 2013 7:49 pm

First off, let’s wish Marcy a big Happy Birthday! The woman is doing nothing but getting younger and smarter. Amazing.

Secondly, my fine Emptywheel friends, I’d like to apologize, I got a little sidetracked today with some work and duties with my daughter, Jenna. And, honestly, far more of my day was spent learning about some of the players and watching the action in Twitter Fight Club. While our own @emptywheel met her unfortunate demise in the second round (without question hampered by her lack of access to internet connection), I was somehow or another asked to judge the Elite Eight, which is taking place today. If you want to weigh in with your votes, all the Twitter Fight Club info is here. These are all excellent people participating in this game, and it is really a lot of fun. I have, just today, been exposed to several people I did not previously regularly track, even though I knew who they were.

The downside is, for all these reasons, plus now that there is once again a three hour difference between me and the east coast, I am hopelessly deep in the day without having written any substantive posts. In light of that, I will post a couple of interesting quick hits for discussion and make this an open thread for those subjects and all other things generally.

First up: A bit of a weird case was announced today in the Eastern District of Virginia (EDVA). An American citizen, Eric Harroun, was arrested for what appears to be pretty much only foreign terroristic acts:

A former Army soldier from Phoenix who joined rebels fighting the Syrian government and boasted to FoxNews.com of his exploits as a Muslim soldier of fortune earlier this month was arrested Wednesday in Virginia and could face life in prison.

Eric Harroun, 30, who left the Army in 2003 on full disability pay after a truck accident, was charged with conspiring to use a rocket-propelled grenade while fighting with the al-Nusrah Front, an organization also known as Al Qaeda in Iraq. Harroun, who was in Syria or Turkey when he spoke to FoxNews.com by Skype, was nabbed shortly after flying in to Dulles International Airport after a voluntary interview with FBI agents, according to a criminal complaint filed Thursday.

There are all kinds of fascinating about this story. For one, Harroun was just featured in a big story in Foreign Policy. The FP story was only dated March 22, so the timing of when they really interacted with Harroun (the earliest date FP noted was March 2nd and the latest March 16th) in relation to the time and circumstances of his arrest are interesting. Here is the critical affidavit filed on him in EDVA so far. And here is a piece by Bobby Chesney at Lawfare on the Harroun announcement, and I completely agree with him about the curious disconnect between the charge maybe called for under 18 USC 2339(D) and the one contained in the one page, fill in the blank complaint that was filed, of 18 USC 2332(a)(b).

Second, the Sweet Sixteen is underway. I have a rooting interest in the Arizona Wildcats, who are playing an evil Bit 10.2 team, Ohio State. Go Cats! also on tap tonight are Marquette/Miami, Syracuse/Indiana and, in a battle of surprise teams, Wichita State/La Salle. These are all fantastic games, but I think the Buckeyes, Marquette and Indiana will likely win out. The one that is a crap shoot and really fascinating is the Wichita State Shockers and the La Salle Explorers. The Shockers have big and tough inside and the Explorers have guards. I always default to killer guard play in the tournament, and I will ride with La Salle.

Okay, what else you got? Whether in the news, March Madness, or anything else, let fly.

DOMA’s Day At The Supremes

By: bmaz Wednesday March 27, 2013 9:32 am

UPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

The Prop 8 Oral Arguments Before the Supreme Court

By: bmaz Tuesday March 26, 2013 1:31 pm

A momentous morning in the Supreme Court. All the work, analysis, speculation, briefing and lobbying culminated in an oral argument in Hollingsworth v. Perry lasting nearly an hour and a half – half an hour over the scheduled time. There are a lot of reports and opinions floating around about what transpired.

Here is Tom Goldstein

Here is Reuters led by Lawrence Hurley and David Ingram

Here is Lyle Denniston of SCOTUSBlog

Here is USA Today

Here is Huffington Post’s Mike Sacks with a video report

Here is Ryan Reilly and Mike Sacks with a written report at HuffPost

Suffice it to say, we do not know a heck of a lot after oral arguments than we did right before them. The full range of decision is on the table. However, there were certainly some hints given. Scalia and Alito are very hostile, and Thomas is almost certainly with them in that regard although he once again stood mute. Ginsburg, Kagan and Sotomayor seemed receptive to the Ted Olson’s arguments. Breyer oddly quiet and hard to read. As is so often the case, that left Anthony Kennedy in effective control of the balance.

If Kennedy’s tenor at argument is any guide, and it isn’t necessarily, he is unlikely to sign on to a broad ruling. In fact he may be struggling with standing, but that is very hard to read. Several commenters I have seen interpreted Kennedy’s questions as having a real problem with standing and signaling a possibility of punting the case on that basis. From what I have read so far, I wouldn’t say that…and neither does Adam Serwer, who was present at argument.

So, in short, I would summarize thusly: Standing is a bigger issue than I had hoped, and there is more resistance to a broad ruling than I had hoped. But the game is still on. Remember when Jeff Toobin’s train wreck/plane wreck take after the ACA oral arguments; you just don’t know and cannot tell.

I will likely be back later after analysis of the pertinent material. For now, let me leave you with that material and media so you too can hear and see the groundbreaking day in the Supreme Court:

Here is the full transcript of the oral arguments

Here is the audio of the proceedings

Enjoy, and I look forward to discussing this! And, again, there will be updates to this post throughout the day, so keep checking for them.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]