Scalia's "Free" Trip to an Exclusive Resort

One of the things that judges, but federal judges in particular, are supposed to avoid is any appearance of impropriety or bias.  Having had two law partners become federal judges, I have seen the vetting process first hand and witnessed the efforts of these two individuals to refrain from any appearance of political partisanship or acceptance of gifts from those who might ever appear before them in court.  Not so with Antonin Scalia and Clarence Thomas, each of whom did little to hide their political or religious prejudices.  I have long argued that both needed to be removed from the Supreme Court if they could not abide by the canons of judicial conduct.  Likewise, as we now discover, nor did Scalia avoid accepting expensive gifts. As it turns out, Scalia was enjoying a free junket at the Cibolo Creek Ranch resortat the time he suffered his fatal heart attack.  A piece in the Washington Post looks at this unseemly situation.  Here are excerpts:

Justice Antonin Scalia’s sudden death over the weekend at a West Texas ranch raised questions about the nature of his travel, who paid for the trip and whether justices are subject to the same disclosure guidelines as other judges or federal officials.

The ranch is 30,000-acre getaway that is home to John B. Poindexter, according to the website of J.B. Poindexter & Co. It is a remote location that has reportedly attracted the likes of Mick Jagger, Jerry Hall and Bruce Willis. 

All of which raises the question: Who pays for a Supreme Court justice to make this kind of trip?  Not Scalia, it turns out. Poindexter told The Washington Post that Scalia was not charged for his stay, something he described as a policy for all guests at the ranch.

“I did not pay for the Justice’s trip to Cibolo Creek Ranch,” Poindexter wrote in a brief email Tuesday. “He was an invited guest, along with a friend, just like 35 others.” . . . However, Poindexter said he did not pay for Scalia’s charter flight to Texas. . . . Poindexter, who would not identify Scalia’s friend . . . 

The nature of Poindexter’s relationship with Scalia remained unclear Tuesday, one of several lingering questions about his visit. It was not known whether Scalia had paid for his own ticket to fly to the ranch or if someone else picked up the tab, just as it was not immediately clear if Scalia had visited before.

It is also still not known who else was at the Texas ranch for the weekend, and unless that is revealed, there could be concerns about who could have tried to raise an issue around Scalia, said Stephen Gillers, who teaches legal and judicial ethics at the New York University School of Law.  

The 1978 Ethics in Government Act, passed in the wake of the Watergate scandal, states that all federal judges — up to and including the chief justice and the associate justices — are required to report certain gifts. It also requires them to identify and describe when someone who is not a relative gives them “transportation, lodging, food, or entertainment” worth a certain amount.

Scalia was among the court’s most active travelers. However, these disclosure forms offer scant details about who else attends events with the justices.

Judges must report reimbursements related to travel totaling $335 or more, according to filing instructions posted by the group Judicial Watch. And judges are not allowed to accept anything of value from a person who has a case in their court, the document notes.

The biggest ethical questions involve when justices should recuse themselves from cases, says Gillers.

“Is [the justice] the final arbiter of whether or not he has to recuse himself? And the answer is yes,” he said. “Every other federal judge below the Supreme Court, every other federal judge’s decision about whether or not he should be recused is potentially subject to the review of a higher judge or other judges on his court. But no one reviews the decision of a justice.”

Roberts issued his [2011] report at the end of a year in which more than 100 law professors nationwide asked Congress to give the Supreme Court an ethical code of conduct after it emerged that Scalia and Justice Clarence Thomas had attended private political meetings sponsored by billionaire conservative donors David and Charles Koch. That same year, Kagan was called on to recuse herself from hearing challenges to health-care reform, and a watchdog group said Thomas had failed to report his wife’s income from a conservative think tank before he amended his financial forms.

In my view, Scalia was a very arrogant and bigoted man and one who cared little about the rights of others.  In many ways, he was the Donald Trump equivalent of the Supreme Court.  The Court is better without him.  

Clarence Thomas: One of the Five Worst Supreme Court Justices In American History

This blog has frequently looked at the the manner in which Justice Clarence Thomas (and Justice Scalia) disregards the canons of judicial conduct that applies to federal judges and the mandates to avoid circumstances that will raise questions as to a judge or justices impartiality.  Between his wife's political activities, his "lapses in memory" about the six figure income his wife has generated, and his attendance at scurrilously partisan events, Thomas is a train wreck who, if he were a typical federal judge, would be removed from the bench.  And that doesn't even get into Thomas' idiocy on the Supreme Court and his seeming intellectual obtuseness.  A piece in Think Progress looks at the five worse justices in America's history and, not surprisingly, Thomas makes the list.  Here are some highlights:

Today is the official release date for my book, Injustices: The Supreme Court’s History of Comforting the Comforted and Afflicting the Afflicted. As you might guess from the title, it is not particularly complimentary of the Supreme Court as an institution. As the book’s jacket explains, “the justices of the Supreme Court have shaped a nation where children toiled in coal mines, where Americans could be forced into camps because of their race, and where a woman could be sterilized against her will by state law. The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy. Nor is the modern Court a vast improvement, with its incursions on voting rights and its willingness to place elections for sale.”

Even amidst this dark history, certain justices stand out as particularly mean-spirited, ideological or unconcerned about their duty to follow the text of the Constitution. Based on my review of over 150 years of Supreme Court history in Injustices, here are the five jurists who stand out as the worst justices in American history:

1) Justice Stephen Johnson Field.  As a sitting justice in 1880, Justice Stephen Johnson Field launched a dark horse bid for the Democratic Party’s presidential nomination. Claiming that “the chilling shadow of the empire” was descending upon the United States, Field fronted an anti-government campaign that would make all but the most strident modern day tea partiers blush. . . . . . Justice Field never became president, but he worked as a justice to implement the very same policies his campaign promised that he would support if elected to the White House. Field joined the Court’s pro-segregation decision in Plessy v. Ferguson, and he authored another opinion permitting former Confederate officials to practice law in federal court. . . . The cause of Field’s life, however, was neutering the government’s power to enact economic and business regulation. 

2) Chief Justice Roger Taney. Taney authored what is widely viewed as the worst single decision in the Supreme Court’s history, the pro-slavery decision in Dred Scott v. Sandford. Though Taney was far more moderate on the issue of slavery at a young man — he once referred to slavery as a “blot on our national character” and he emancipated his own slaves — his views hardened in his old age. In 1857, the same year as Dred Scott, Taney labeled the abolitionist movement “northern aggression.”  . . . . Dred Scott was an abominable decision, rooted in the notion that men and women of African descent “had for more than a century before been regarded as beings of an inferior order” who are “so far inferior that they had no rights which the white man was bound to respect.”

3) Justice James Clark McReynolds.  McReynolds was, in Time magazine’s words, “a savagely sarcastic, incredibly reactionary Puritan anti-Semite.” McReynolds was lazy. He often would not even open the briefs lawyers filed to prepare him to hear a case until hours before the case was argued, and he frequently spent just a few hours crafting opinions that would govern all other courts in the country. McReynolds was nasty. He labeled President Franklin Roosevelt “that crippled son-of-a-bitch . . . in the White House,”. . . . . above all, Justice McReynolds was a bigot. He refused to speak to Justice Louis Brandeis for Brandeis’s first three years on the Court because Brandeis was Jewish, and he forbade contact between his staff and the Jewish Justices Brandeis and Benjamin Cardozo. . . . . McReynolds was, sadly, one of many justices who joined opinions striking down child labor laws or a minimum wage

4) Chief Justice Melville Fuller.  As a delegate to Illinois’s constitutional convention in 1862, he voted to prohibit black men and women from settling in the state or casting a ballot in its elections. As a member of the state legislature, he labeled the Emancipation Proclamation “unconstitutional, contrary to the rules of civilized warfare,” and “calculated to bring shame, disgrace and eternal infamy” upon the nation. He also backed a constitutional amendment preventing congressional interference with slavery. . . .  Chief Justice Fuller presided over the Court’s infamous decision in Lochner v. New York, which struck down a New York law prohibiting bakeries from overworking their workers. Lawyers and legal historians widely view this decision as symbolic of the entire era in the early twentieth century when Field’s values dominated the Supreme Court — indeed, this age is commonly referred to as the Lochner Era.

 5) Justice Clarence Thomas.  Justice Clarence Thomas is the only current member of the Supreme Court who has explicitly embraced the reasoning of Lochner Era decisions striking down nationwide child labor laws and making similar attacks on federal power. Indeed, under the logic Thomas first laid out in a concurring opinion in United States v. Lopez, the federal minimum wage, overtime rules, anti-discrimination protections for workers, and even the national ban on whites-only lunch counters are all unconstitutional.

There's more on each justice, so read the entire piece.  The take away on Thomas?  He is unfit to be on the Court and needs to be removed.  I can understand that the Republicans wanted to appoint a black to the Court.  What I don't understand is why they insisted on appointing a total idiot, in my opinion.

Reasons to Be Optimistic for Marriage Equality at SCOTUS

As noted earlier in the week, Clarence Thomas and Antonin Scalia, the Supreme Court's most vociferous homophobes, whined when the Court refused to extend the stay that had put same sex marriages on hold.  Meanwhile, an editorial in the Mobile Press Register similarly whines and shows that the column's author is an idiot given his lack of understanding of what the issues were before the Court in Windsor (only Sec. 3 of DOMA was under challenge).  Candidly, the Court's action makes perfect sense given its past refusals to take appeals from Court of Appeals rulings that struck down state marriage bans. And, as a column in The Advocate lays out, this week's action may signal how the Court will rule come June.  Here are excerpts:

It's impossible to predict exactly how the Supreme Court will rule on the marriage equality cases currently before it, but it's getting easier and easier to make a confident guess. Just ask Clarence Thomas.

Earlier this week, the court denied a request for a stay in Alabama, and Justice Clarence Thomas's dissent telegraphed a few key signals about the court's momentum toward equality. In addition, several recent court decisions all seem to indicate that the court already has a consensus that state bans on same-sex marriage are unconstitutional.


Here are the key reasons Thomas lays out for why the court is unwilling to delay marriage equality, even though Thomas opposes that conclusion:

1. Weak Case from Antigay States . . . . Thomas indicates the other justices seem confident that Alabama would not be able to show that marriages would cause any harm.

2. Court's Approach Has Evolved . . . . the court has turned down stay requests, allowing marriage to begin immediately in several states. Cases that saw stays denied by the high court include the Florida case, Armstrong v. Brenner; the South Carolina case Wilson v. Condon; and the Kansas case Moser v. Marie.


3. Court Declined to Hear Cases in Which Bans Were Overturned. . . . Although it's only briefly mentioned in the dissent, the Supreme Court's refusal to hear pro-equality rulings is also worthy of note. Late in 2014, several states sent marriage cases to the Supreme Court, with the expectation that the justices would hear the cases. But the justices declined, effectively affirming the pro-equality rulings from lower courts. . . . . In his dissent, Thomas notes that he would have wanted to review the pro-equality rulings, but was unable to muster enough support from his colleagues.
 
4. ...But Accepted Cases in Which Bans Were Upheld.  In fact, the Supreme Court only accepted subsequent marriage equality petitions after a lower court upheld marriage bans, creating what is known as a "circuit split." . . . .  Clearly, that means that something has changed in the several months between the court's granting of the Utah stay and denying a stay in Alabama. It's impossible to say what happened, but it seems that a consensus may have emerged at the court behind the scenes, that a pro-equality ruling is inevitable.

5. Marriage Equality Is Becoming the Status Quo. Usually the Supreme Court defers to status quo, upholding existing laws until they are fully reviewed. Going slow, maintaining consistency, and avoiding rapid changes in the law are high priorities for the court. The fact that the court allowed marriage to begin in Alabama, as well as several other states, could mean that the justices expect marriage equality to be the new status quo. . . . Advocates who want to see the freedom to marry secured nationwide certainly hope Thomas's prediction is correct.

Ultimately Thomas seems as though he's readying to concede defeat.

Did the Supreme Court Just Confirm It Will Make Same Sex Marriage Nationwide?

With the U.S. Supreme Court's action today refusing to grant a stay of the Alabama ruling striking down that state's gay marriage ban, judges in Alabama are seemingly trying to reprise the behavior of George Wallace as he stood in the school house door to bar black students from entering white schools (or "Massive Resistance" in Virginia where localities closed public schools rather than admit blacks).  Meanwhile, the recalcitrant judges are now facing possible lawsuits against them personally for refusing to follow the federal court orders.  And when one looks at the bigger picture - i.e., how the Supreme Court rules this June - it seems increasingly unlikely that the Court will uphold the 6th Circuit ruling upholding state marriage bans.  BuzzFeed has a good analysis that in particular looks at the whining dissent of Thomas and Scalia that seems to note that a pro-marriage equality majority controls the Court.  Here are article highlights:

The United States Supreme Court will end discrimination against same-sex couples this June — and even justices who oppose the coming decision appear to know it’s going to happen. 

On Monday morning, Justice Clarence Thomas made explicit what had been growing apparent to observers for months: The court — at least a majority of the justices — has made up its mind on the issue of whether the U.S. Constitution bars states from treating same-sex couples differently than opposite-sex couples in marriage laws.

In denying the Alabama attorney general’s request to keep a U.S. district court order that strikes down Alabama’s ban on same-sex couples’ marriages on hold while the state appeals, the Supreme Court — even as it considers marriage cases out of four other states — made it clear that the justices will not stop same-sex couples from marrying in the meantime when a judge strikes down a ban. 

Since October 2014, when the justices decided not to hear cases from five states where the appeals courts had struck down the bans as unconstitutional, the justices have denied requests to keep marriage rulings on hold during appeals.

Court observers, including BuzzFeed News, see these decisions as a signal of the court’s direction. But the court had given no reason for denying the stay requests — leaving people guessing.

Alabama Attorney General Luther Strange’s request, however, was the first stay application to reach the justices since they had agreed to hear the cases out of the 6th Circuit Court of Appeals. Some — including Strange and Alabama Gov. Robert Bentley — had hoped the court would treat stay requests differently now that it had taken up the issue.

On Monday morning, though, the court denied the request. Just by itself, the move would have been the strongest statement yet about where the court is headed on the ultimate question.

But Thomas brought the issue out into the open. He issued a statement, in which he was joined by Justice Antonin Scalia, explaining why they would have granted a stay to Alabama — the first word from a justice suggesting the expected end result in the matter.

In the short, three-page statement, Thomas criticized the court for “look[ing] the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor,” the 2013 decision striking down the Defense of Marriage Act’s ban on federal recognition of same-sex couples’ marriages.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” he wrote, referring to the question of whether bans on marriage for same-sex couples are constitutional.
Given Thomas’ dissent today, the only real question left outstanding is where Chief Justice John Roberts and Justice Samuel Alito will end up on the ultimate question. Although both dissented in the Windsor DOMA decision, neither has joined Thomas and Scalia in saying publicly that they would have granted any of the recent stay requests.

Justice Clarence Thomas - Mental Midget and Religious Extremist

I have frequently made the case as to why Supreme Court Justice Clarence Thomas is unfit for the Supreme Court bench - or in reality, any other judicial position given his utter inability to separate his own religious beliefs and religious based prejudices from his rulings.  As shockingly horrible as the conservative majority opinion was in the case of Town of Greece v. Galloway, which focused on whether or not it is constitutionally acceptable to begin the meetings of legislative bodies with prayer, Thomas went on to suggest that under the U.S. Constitution, the federal government probably could not establish an official religion, the states could perhaps do so.  For non-Christians, the message is clear: go f*ck yourselves.   A piece in the Washington Post looks at Thomas' dangerous and frightening views.  Here are excerpts:

The majority opinion pointed out that the town made a good-faith effort to bring in prayer leaders from a variety of religious backgrounds and that there is a long tradition of legislative prayer — even sectarian legislative prayer — not being deemed coercive or unconstitutional.

But Clarence Thomas, in his concurring opinion, went even further on the subject of the establishment of religion. That whole clause is just a federalism thing, he argued. States might well be able to establish religion, if they really wanted to.

“The Establishment Clause provides that ‘Congress shall make no law respecting an establishment of religion.’ ” Justice Thomas quoted in his concurring-but-wishing-they’d-gone-further opinion. “As I have explained before, the text and history of the Clause ‘resis[t] incorporation’ against the States. … If the Establishment Clause is not incorporated, then it has no application here, where only municipal action is at issue. As an initial matter, the Clause probably prohibits Congress from establishing a national religion.”

Probably.

Sure, James Madison’s original draft of the First Amendment was a good deal stronger: “The civil rights of none shall be abridged on account of religious belief or worship … nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

Thomas went on to note that, when the Founders were Founding, plenty of states had established religions. It was the done thing.

But that wasn’t for want of opposition — some of that from the Founders themselves. In fact, James Madison and Thomas Jefferson were both heavily involved in the battle for religious freedom in Virginia. Discounting Jefferson as someone who liked to go through his Bible excising passages he considered impractical, it still seems fair to consider what Madison had to say on the issue. And he felt quite strongly.

He offered up some fiery words on the subject during a debate over a “a Bill establishing a provision for teachers of the Episcopal religion” in Virginia, noting: “If ‘all men are by nature equally free and independent,’ all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an equal title to the free exercise of Religion according to the dictates of Conscience. Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man…”

Freedom of religion, as the Founders experienced it, was definitely “of” and not “from.” To live out one’s religious beliefs undisturbed was the reason many had come to America in the first place. Madison wished for the vigorous establishment of freedom of religion because he thought this would benefit both Church and State. He wrote to Edward Livingston on July 10, 1822, that “Religion Flourishes in greater purity, without than with the aid of Government.”

There's more, but the take away is that "originalists" like Thomas and Scalia seek to willingly do violence against the freedom of religion that the Founding Fathers wanted for ALL citizens, not just Bible thumping Christians.

Justice Clarence Thomas’s Disgraceful Silence

I have often lamented the misconduct of Supreme Court Justices Clarence Thomas, Antonin Scalia and Samuel Alito who utterly ignore the rules of judicial conduct that apply to the rest of the federal judiciary.  If lower court judges engaged in the outrageous political partisanship that we have seen from these three justices or their open bias before hearing cases, they would be likely removed from office.  But in the case of Clarence Thomas, the misconduct goes even further.  The man is a dullard in my view and he doesn't even pay attention during oral arguments.  The man harms the very credibility of the United States Supreme Court.  A piece in The New Yorker looks at Thomas' embarrassing and disgraceful conduct.  Here are excerpts:

As of this Saturday, February 22nd, eight years will have passed since Clarence Thomas last asked a question during a Supreme Court oral argument. His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.

This point was especially apparent on January 13th, when the Court considered the case of National Labor Relations Board v. Noel Canning, which raises important questions about the President’s ability to fill vacancies when the Senate is in recess. It was a superb argument—highly skilled lawyers engaging with eight inquisitive judges. The case also offered a kind of primer on the state of the Court in action, with Thomas’s colleagues best viewed in pairs.

As for Thomas, he is physically transformed from his infamous confirmation hearings, in 1991—a great deal grayer and heavier today, at the age of sixty-five. He also projects a different kind of silence than he did earlier in his tenure. In his first years on the Court, Thomas would rock forward, whisper comments about the lawyers to his neighbors Breyer and Kennedy, and generally look like he was acknowledging where he was. These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention.”

Thomas has a part to play, if he wants to take it. The Noel Canning case, for example, raises a profound issue in constitutional law. Noel Canning, a bottling company, is challenging a ruling of the National Labor Relations Board on the ground that some of its members were appointed illegitimately. All Presidents have used recess appointments, often without much controversy; Obama did so in this case because Congress had refused to act on his nominations, to the point that the N.L.R.B. didn’t have a quorum. 

No one, however, has been more outspoken about this conflict, at least on paper, than Thomas, the most extreme originalist on the Court. Scalia believes that the Court owes some deference to its own precedents, even if they differ from the original meaning of the text. Thomas is happy to lay waste to decades, even centuries, of constitutional law. Clearly, then, Thomas could have contributed to this spirited, important debate. Instead, on this day he was, as usual, checked out.

Still, there is more to the job of Supreme Court Justice than writing opinions.  . . . .
But the process works only if the Justices engage. The current Supreme Court is almost too ready to do so, and sometimes lawyers have a hard time getting a word in edgewise. In question-and-answer sessions at law schools, Thomas has said that his colleagues talk too much, that he wants to let the lawyers say their piece, and that the briefs tell him all he needs to know. But this—as his colleagues’ ability to provoke revealing exchanges demonstrates—is nonsense. Thomas is simply not doing his job.

By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court.

For many reasons, Thomas needs to be removed from the Court.

Groundswell - The True Face of the GOP Base

The metastasizing of the cancer that is the Republican Party base appears to be intensifying.  Not only are minorities, gays and immigrants viewed as the enemy to be defeated at any cost, but so are members of the so-called GOP establishment and any Republicans who are not ranting, Kool-Aid drinking crazies.  The GOP fringe now is the party base.  As I have noted before, I honestly do not see how the GOP can be saved long term because the cancer has taken control of the party as a whole.  A piece in Mother Jones looks at the disturbing insanity, bigotry and hate that defines today's GOP.  Also, note the disturbing activities of the wife of Justice Clarence Thomas who thinks she is not bound by the usual constraints of judicial conduct and avoidance of any appearance of bias.  Here are excerpts:

Believing they are losing the messaging war with progressives, a group of prominent conservatives in Washington—including the wife of Supreme Court Justice Clarence Thomas and journalists from Breitbart News and the Washington Examiner—has been meeting privately since early this year to concoct talking points, coordinate messaging, and hatch plans for "a 30 front war seeking to fundamentally transform the nation," according to documents obtained by Mother Jones. 

Dubbed Groundswell, this coalition convenes weekly in the offices of Judicial Watch, the conservative legal watchdog group. During these hush-hush sessions and through a Google group, the members of Groundswell—including aides to congressional Republicans—cook up battle plans for their ongoing fights against the Obama administration, congressional Democrats, progressive outfits, and the Republican establishment and "clueless" GOP congressional leaders. They devise strategies for killing immigration reform, hyping the Benghazi controversy, and countering the impression that the GOP exploits racism. And the Groundswell gang is mounting a behind-the-scenes organized effort to eradicate the outsize influence of GOP über-strategist/pundit Karl Rove within Republican and conservative ranks. (For more on Groundswell's "two front war" against Rove—a major clash on the right—click here.) 

One of the influential conservatives guiding the group is Virginia "Ginni" Thomas, a columnist for the Daily Caller and a tea party consultant and lobbyist. Other Groundswell members include John Bolton, the former UN ambassador; Frank Gaffney, the president of the Center for Security Policy; Ken Blackwell and Jerry Boykin of the Family Research Council; Tom Fitton, the president of Judicial Watch; Gayle Trotter, a fellow at the Independent Women's Forum; Catherine Engelbrecht and Anita MonCrief of True the Vote; Allen West, the former GOP House member; Sue Myrick, also a former House GOPer; Diana Banister of the influential Shirley and Banister PR firm; and Max Pappas, a top aide to Sen. Ted Cruz (R-Texas). 

A third agenda item that Wednesday morning was beating back the effort to end the Boy Scouts of America's ban on gay Scouts.

A high-priority cause for Groundswellers is voter identification efforts—what progressives would call voter suppression—and when Groundswellers developed a thread on their Google group page exploring the best way to pitch the right's voter identification endeavors . . . .

In one post, Ginni Thomas encouraged Groundswell members to watch Agenda: Grinding America Down, a documentary that claims that progressives (including Obama) seek "a brave new world" based on the "failed policies and ideologies of communism" and that an evil left is purposefully "destroying the greatest country in all of world history."

Groundswell has set itself up as the theme lab for the true-red activists of the conservative movement. Fearing that some hydra of the left has long been running wild, vanquishing the right, and bringing the nation closer to utter ruin, the members of Groundswell have birthed a hydra of their own. 

Will Public Opinion Sway Supreme Court on Gay Marriage?

For Neanderthals and mental midgets on the U. S. Supreme Court like Antonin Scalia and Clarence Thomas, respectively, public opinion and concerns about how they will be viewed by posterity seems to mean nothing.  Scalia will champion his own bigoted religious and racial views and Thomas can be relied upon to act like an "Uncle Tom" and grovel to the will of his white Christianist masters.  But some on the Court, Anthony Kennedy in particular and possibly even John Roberts, may be concerned about how their ruling will stand over time, especially given the rapid changes in public support for gay marriage.  Do they really want to join in a opinion that future generations will view as backwards and bigoted?  A piece in the Los Angeles Times speculates on this issue.  Here are excerpts:

WASHINGTON — Public opinion on marriage for gay and lesbian couples has shifted with almost unprecedented speed since California voters banned such unions in 2008.

That shift could influence the Supreme Court, in particular Justice Anthony M. Kennedy and possibly Chief Justice John G. Roberts Jr., as it decides whether to uphold Proposition 8 in coming months.
Throughout his long career, Kennedy has been willing to make major changes in the law on issues including the death penalty, gun rights and gay rights. Kennedy has been a strong, steady proponent of constitutional principles such as free speech, individual liberty and limits on government power.

"Among all the justices, he is most concerned about public opinion," New York University law professor Barry Friedman said of Kennedy. "The more there is a groundswell of support for gay marriage, the more it is likely he will vote to support it."

In California, public opinion clearly has shifted since Proposition 8 passed in 2008 and banned same-sex marriage. A Field Poll survey released this week showed that California voters, by a nearly 2-1 margin, now approve of allowing same-sex couples to marry, a finding in line with states that legalized gay marriage in November's election.

Verrilli's brief filed Thursday applied that same approach in the Proposition 8 case. It argues that because California and seven other states — Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island — already have given gay couples full legal rights, there is no justification for denying them a right to marry.  This is what some lawyers have dubbed the "eight-state solution."

If the court were to adopt a version of the eight-state solution, it would allow most states to decide for themselves, as Pugno advocates — at least for now. But it is also true that if the justices decided discrimination against gays violates the Constitution's guarantee of equal protection of the laws, that same argument eventually could be used to invalidate the remaining state laws against same-sex marriage. The justices might be particularly willing to do so if the majority of states already had acted.

In 1967, the Supreme Court ruled that laws barring mixed-race couples from marriage violated the Constitution. By then, only 16 states still had such laws on their books.

Obviously, I continue to hope for a broad nationwide ruling on marriage because without it, here in Virginia gay marriage will be a long time in coming- - or at not until the power of The Family Foundation over the Republican Party of Virginia is broken.