Bob Schwartz

Tag: Supreme Court

Tsarnaev and Miranda

Miranda Warning
Dzhokhar Tsarnaev, suspect in the Boston Marathon bombings, is now in custody and in hospital recovering from gunshot wounds. The Justice Department has announced that it will not be giving him a Miranda warning before initially questioning him, under the public safety exception to the need for such warning.

In Miranda v. Arizona (1966), the Supreme Court established guidelines for the taking and use of statements by suspects in custody. In very brief summary, if a suspect is in custody and being interrogated, statements made will be admitted into evidence only if he has been properly warned about his right not to talk, about the potential use of his statements for self-incrimination, and about his right to have an attorney. The various versions of the Miranda warning reflect this decision, and embody the protections of the Fifth and Sixth Amendments.

A narrow exception to Miranda was established in New York v. Quarles (1984)  . In an age of terrorism and the prosecution of terrorists, this so-called “public safety exception” has become the focus of intensive analysis and application—along with a push for its expansion.

In Quarles, a victim of rape pointed police officers toward her armed assailant. The police pursued him into a supermarket:

Respondent ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun but lost sight of him for several seconds. Upon regaining sight of respondent, Officer Kraft ordered him to stop and put his hands over his head; frisked him and discovered that he was wearing an empty shoulder holster; and, after handcuffing him, asked him where the gun was. Respondent nodded toward some empty cartons and responded that “the gun is over there.” Officer Kraft then retrieved the gun from one of the cartons, formally arrested respondent, and read him his rights under Miranda v. Arizona. Respondent indicated that he would answer questions without an attorney being present and admitted that he owned the gun and had purchased it in Florida. The trial court excluded respondent’s initial statement and the gun because the respondent had not yet been given the Miranda warnings, and also excluded respondent’s other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.

The Supreme Court reversed the New York courts and created an exception to Miranda, when the interrogation was aimed at preventing further harm and enhancing public safety:

Procedural safeguards that deter a suspect from responding, and increase the possibility of fewer convictions, were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege against compulsory self-incrimination. However, if Miranda warnings had deterred responses to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting respondent. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area.

The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

It is useful and enlightening to read the dissent by Justice Thurgood Marshall, joined by Justices William Brennan and John Paul Stevens. Justice Marshall, whose practical understanding of constitutional rights was second to none (see Brown v. Board of Education), had difficulty with the trading away of such a fundamental right, even for something as paramount as public safety. He had an elegant solution: Please do interrogate without a Miranda warning—just don’t expect to introduce the answers at trial:

The irony of the majority’s decision is that the public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.

There is one thing that in the early aftermath of this dynamic story can be missed: Whatever he did, whatever we believe about what he did, however vital his knowledge is, Tsarnaev is under no legal obligation to say anything and has the constitutional right not to say anything that could be used against him.

The Justice Department has invoked the public safety exception: it will not yet Mirandize Tsarnaev. In part, they may be trying to reserve the right to use at trial any of the statements he makes in response to questions such as “Are there more IEDs? Who else is currently involved and dangerous?”. Maybe more significantly, they simply don’t want him—as they don’t want any other suspect—to prematurely stop talking. They won’t be telling him yet that he has the right to remain silent or to have an attorney.

But…not telling him he has these rights doesn’t mean that he doesn’t already have them. He does. A Miranda warning does not magically grant a suspect those rights. The much more magical Constitution and Bill of Rights do.

It is not clear that Tsarnaev needs a reminder of those rights. He is by all accounts a smart and educated young man, even if by recent actions a horribly misguided and tragic one. Almost all television viewers are expert on Miranda warnings anyway; even the most law-abiding American has heard them hundreds of times. But if he should decide to say nothing, other than his desire for a lawyer, in America there is nothing police or prosecutors can do. What we may justifiably feel and believe about him and what he and his brother perpetrated won’t change that, and shouldn’t. We didn’t write these self-imposed limitations for easy cases. We put them in place as a test, to see just how deliberate and fair we could be, when all we want is swift and hot-blooded justice. We wrote them to remind ourselves that we are better than that—even when we for a moment and for good reason don’t want to be.

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Arguments on Marriage Equality, Part 1

Supreme Court
The audio and transcript of the Supreme Court arguments in Hollingsworth v. Perry, the Proposition 8 marriage equality case, are now available.

Without video, the best way to review these is to read and listen to them at the same time. Otherwise, you may not know which Justice is talking—though some of them have such distinctive voices, styles or insights that they are instantly recognizable. Hint: Justice Clarence Thomas is the one who is not talking; he never does.

The news channels deal with the lack of video (not permitted) by playing the audio, identifying the speaker on screen, and showing an artist’s sketch. You can do this yourself, creatively if you want. You might use a photo instead of a sketch, or you can just select a random picture of another distinguished Justice or lawyer, present or past.

The odds of correctly predicting outcomes in difficult Supreme Court cases like this are better than winning the Powerball lottery or picking all the NCAA brackets right, but not much. So here are some first impressions.

Standing

The path of this case is complicated. The California Supreme Court enabled same-sex marriage and for a few months couples did marry. Almost immediately, a group sponsored an initiative to reverse that decision by banning same-sex marriage in the state. The initiative passed, but the U.S. Ninth Circuit Court of Appeals declared the ban on same-sex marriage unconstitutional, thus allowing same-sex marriage to proceed. The sponsor of the initiative appealed and the Supreme Court agreed to hear the case.

That is where the standing issue comes in. The State of California refused to appeal the overturning of the initiative. This left the initiative sponsor as the closest thing to an interested party for purposes of appeal.

But maybe not legally close enough. The Supreme Court did agree to hear the case, but now appears to wonder whether the proponents of the initiative have legal standing to have brought the appeal in the first place. The Court is free at this point to reconsider the question and rule that their initial agreement to hear the case was “improvidently granted.”

The Justices spent a substantial amount of time during arguments on this standing question. If standing is denied, the Court won’t be deciding any of the other issues. The appeal is over, the decision of the Ninth Circuit will stand, and same-sex marriage will once again be the law of California. There is some discussion that for the moment, the Court would like to narrow whatever they have to say about same-sex marriage to California, and let the legal questions mature. If they don’t have to say anything, that narrowing takes place automatically.

How likely is that? If this was the only same-sex marriage case before the Court this term, it would be an easier route for them to take. It would allow more cases to move up the appeal chain, more Courts of Appeal to be heard from.

But it isn’t the only case like it this term, or even this week. Today the Court will consider the constitutionality of the Defense of Marriage Act (DOMA), passed by Congress and signed by Bill Clinton in 1996. DOMA prohibits the federal government from recognizing same-sex marriage, which among other things means that same-sex spouses enjoy no federal benefits. (This has proved to be an embarrassment for Democrats. Scores of Senators and Representatives submitted a brief in which they apologized for being wrong, and Bill Clinton has done the same thing in a recent op-ed piece.)

Procreation

Charles Cooper is the attorney representing the proponents of Proposition 8. Good lawyers get stuck with bad positions in tough cases, and this is that.

The primary argument for the constitutionality of a ban on same-sex marriage—aside from moral arguments, which are not legal ones—is that the tradition and essence and supreme societal value of marriage is procreation. You get married, above all, to have babies; if you can’t have babies, your right to marry is questionable or non-existent. Same-sex couples have no possibility of having children, at least the old-fashioned way (adoption being one of those modern, new-fangled techniques, like in vitro fertilization). Ergo, they have no right to marry.

The above is not hyperbole or sarcasm. For endless minutes, punctuated by occasional laughter, this is the argument that Cooper made, and that various Justices endorsed or, more frequently, questioned.

This part of the arguments has been widely covered, so there are no excerpts here. Listen and read for yourself. The discussion about the fertility of 55-year-old couples and of Strom Thurmond are worth the price of admission.

“The Experiment”

There was discussion of same-sex marriage being some sort of “experiment.” We supposedly have to wait for “scientific evidence” and “data” to determine how well it works.

The discussion of procreation was sad but silly, leavened by laughter. On this point, it is hard to laugh.

For the record, if marriage of any kind is an experiment, the results are in. Sometimes it goes blissfully right, sometimes it goes horribly wrong. Sometimes the children—who arrive in all sorts of ways and are raised in all sorts of permutations—turn out well, and once in a while they don’t. Some people like to go wild with the experiment, trying serial marriage and divorce (and marriage and divorce and marriage and divorce). It’s not an experiment for any of these couples. It’s just marriage. It’s life. It’s love. It’s being human connected.

Justice Antonin Scalia

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The Briefs on Marriage Equality

Amicus Brief
Today begins two days (March 26 and 27) of arguments before the Supreme Court on two related cases about marriage equality. One concerns Proposition 8, California’s voter-passed initiative to ban same-sex marriage.

The question presented on appeal in that case is this:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

The other case concerns the Defense of Marriage Act (DOMA), which prevents extension of various federal benefits to same-sex couples.

The question presented on appeal in that case is this:

Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.”

Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State

It is usual in important cases to have non-parties submit position papers to the Court, known as amicus curiae (friend of the court) briefs. The more significant or contested the controversy, the greater the number of individuals and organizations who want to offer their views—legal, social and otherwise—to help the Court decide. These briefs may be of various value to the Court, but they are all offered in friendship. These friends are often giving a bit of unsolicited advice, as friends do.

Whatever their value, these briefs are fascinating reading. Not unexpectedly, the number of amicus briefs in these cases is extraordinary: 96 in the Proposition 8 case, 80 in the DOMA case.

We will not be able to watch these historic arguments live, or even listen to them live. For reasons surpassing all understanding (something about tradition or about dignity or about lawyers—or even Justices—showboating for the media), cameras are not permitted in the U.S. Supreme Court. With all due respect—lawyers are bound to say that, since the First Amendment will not protect us from punishment for bringing disrepute on our judicial biggers and betters—there are probably plenty of calendars in and around the Supreme Court to indicate the year and century (2013, 21st).

Even if we are stuck only getting reports from the front line, there is something to do in the meantime. In fact, even after we do get the transcripts and audio of the arguments (remember, no cameras, ever), we can read all of the briefs in the case. There are the briefs from the parties to the cases and there are the 176 briefs from helpful friends. These friends include, among many of the prominent, famous and infamous, 50 U.S. Senators and 172 U.S. House members.

You can find the Proposition 8 briefs online

Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al.

You can find the DOMA briefs online

United States v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.

In case you have decided not to dip a toe into the amicus waters, following is a list of all the briefs. But please do give it a try. Some of it will be a tough legal slog for non-lawyers, so you might skip those parts. But some will be essential historical, political, social and cultural analysis and commentary. Whether or not you agree with all these “friends”, you will come away with an informed view of all the positions, from the most solid to the wildest.

Browse the list of briefs below. It might be educational and fun. And if you do read a few of them, you might have even more fun. Maybe even legal fun. Yes, there is such a thing. Just ask the Justices.

Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al. (Proposition 8)

Merit Briefs

  • Brief for Petitioners, Dennis Hollingsworth, et al
  • Brief for Respondents, Kristin M. Perry
  • Brief for Respondent, City and County of San Francisco
  • Reply Brief for the Petitioner, Dennis Hollingsworth, et al

Amicus Briefs

  • Brief for the American Civil Rights Union in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal
  • Brief for the American Psychological Association, the American Medical Association, the American Academy of Pediatrics, the California Medical Association, the American Psychiatric Association, the American Psychoanalytic Association, the American Association for Marriage And Family Therapy, the National Association of Social Workers and its California Chapter, and the California Psychological Association in Support of Affirmance (Addressing the Merits)
  • Brief for the Becket Fund for Religious Liberty in Support of Hollingsworth and the Bipartisan Legal Advisory Group (Addressing The Merits) (Also Filed in 12-307)
  • Brief for Catholics for the Common Good and the Marriage Law Project in Support of Petitioners
  • Brief for Center for Constitutional Jurisprudence in Support of Petitioner
  • Brief for the Citizens United’s National Committee for Family, Faith and Prayer, Citizens United Foundation, U.S. Justice Foundation, Gun Owners Foundation, The Lincoln Institute for Research and Education, Public Advocate of the United States, Declaration Alliance, Western Center for Journalism, Institute on the Constitution, Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, English First, and Protect Marriage Maryland PAC in Support of Petitioners
  • Brief for the Coalition of African American Pastors USA, the Center for Urban Renewal and Education, the Frederick Doublass Foundation, Inc., and Numerous Law Professors in Support of Petitioners and Supporting Reversal
  • Brief for David Boyle in Support of Petitioners, on the Non-Jurisdictional Issues
  • Brief for Eagle Forum Education & Legal Defense Fund, Inc., in Support of Petitioners in Support of Reversal
  • Brief for the Ethics and Public Policy Center in Support of Petitioners and Supporting Reversal or Vacatur
  • Brief for Equality California in Support of Respondents
  • Brief for the Family Research Council in Support of Petitioners Addressing the Merits and
  • Supporting Reversal
  • Brief for Foundation for Moral Law in Support of Petitioner
  • Brief for GLMA: Health Professionals Advancing LGBT Equality (Gay And Lesbian Medical Association) Concerning the Immutability of Sexual Orientation in Support of Affirmance (Addressing the Merits)
  • Brief for David Benkof, Robert Oscar Lopez, and Doug Mainwaring in Support of Petitioners and Supporting Reversal
  • Brief for Helen M. Alvaré in Support of Hollingsworth and Bipartisan Legal Advisory Group Supporting Reversal (Addressing the Merits) (Also Filed in 12-307
  • Brief for the High Impact Leadership Coalition in Support of Petitioners
  • Brief for International Jurists and Academics in Support of Petitioner Hollingsworth and Respondent Bipartisan Legal Advisory Group Addressing The Merits And Supporting Reversal (also filed in 12-307)
  • Brief for Judicial Watch, Inc. and Allied Educational Foundation in Support of Petitioners
  • Brief for Leon R. Kass, Harvey C. Mansfield and the Institute for Marriage and Public Policy in Support of Petitioners
  • Brief of Liberty Counsel, Inc. and Campaign for Children and Families in Support of Petitioners
  • Brief for the Lighted Candle Society in Support of Petitioners
  • Brief for Marriage Anti-Defamation Alliance in Support of Petitioners
  • Brief for Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing The Merits and Supporting Reversal (Also Filed in 12-307)
  • Brief for Minnesota For Marriage in Support of Petitioners
  • Brief for National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; the Church of Jesus Christ of Latter-Day Saints; the Lutheran Church-Missouri Synod; the Union of Orthodox Jewish Congregations of America; the Romanian-American Evangelical Alliance of North America; and Truth In Action Ministries in Support of Petitioners
  • Brief for Patrick Henry College in Support of Petitioners
  • Brief for Professor Daniel N. Robinson, Ph.D. in Support of Petitioners and Supporting Reversal
  • Brief for Scholars of History and Related Disciplines in Support of Petitioners
  • Brief for the States of Indiana, Virginia, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin in Support of the Petitioners (Addressing the Merits)
  • Brief for Social Science Professors in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for the State Of Michigan in Support of Petitioners
  • Brief for Thirty-Seven Scholars of Federalism and Judicial Restraint in Support of Petitioners
  • Brief for the Thomas More Law Center and Chuck Storey, Imperial County Clerk, in Support of Petitioners (Addressing the Merits)
  • Brief for United States Conference of Catholic Bishops in Support of Petitioners and Supporting Reversal
  • Brief for Utah Pride Center, Campaign for Southern Equality, Equality Federation and Twenty-Five State-Wide Equality Organizations (also filed in 12-307)
  • Brief for Catholic Answers, Christian Legal Society, and Catholic Vote Education Fund in Support of Petitioner Hollingsworth and Respondent Bipartisan Legal Advisory Group and Supporting Reversal (Addressing the Merits) (also filed in 12-307)
  • Brief for Coalition for the Protection of Marriage in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Dr. Paul Mchugh in Support of Hollingsworth and Bipartisan Legal Advocacy Group Addressing the Merits and Supporting Reversal (Also Filed in 12-307)
  • Brief for Liberty, Life and Law Foundation and North Carolina Values Coalition in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Pacific Legal Foundation, Ward Connerly, Ron Unz, Glynn Custred, and the Howard Jarvis Taxpayers Association in Support of Neither Party
  • Brief for Parents and Friends of Ex-Gays & Gays in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Concerned Women for America in Support of Reversal (Addressing the Merits)
  • Brief for Robert P. George, Sherif Girgis, and Ryan T. Anderson in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for American Anthropological Association, American Academy of Pediatrics, California, and Robert M. Galatzer-Levy, M.D., in Support of Respondents and Affirmance, Addressing California Proposition 8’s Stigmatizing Effects
  • Brief for Adoption and Child Welfare Advocates in Support of Respondents
  • Brief for the American Academy of Matrimonial Lawyers, the Northern California Chapter of the American Academy of Matrimonial Lawyers, and the Association of Certified Family Law Specialists in Support of Respondents
  • Brief for California Assembly Speaker John A. Pérez and Law Professors Concerned with Representative Democracy in Support of Respondents
  • Brief for American Companies in Support of Respondents
  • Brief for American Federation of Labor and Congress of Industrial Oranizations and Change To Win in Support of Respondents and Suggesting Affirmance
  • Brief for the American Humanist Association and American Atheists, Inc., American Ethical Union, the Center for Inquiry, Military Association of Atheists and Freethinkers, Secular Coalition for America, Secular Student Alliance, and Society for Humanistic Judaism, in Support of Respondents (Addressing the Merits)
  • Brief for the American Jewish Committee in Support of the Individual Respondents on the Merits (also filed in 12-307)
  • Brief for American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor (Also Filed in 12-307)
  • Brief for Anti-Defamation League Et Al. in Support of Respondents
  • Brief for Bay Area Lawyers for Individual Freedom, Et Al., in Support of Respondent
  • Brief for Beverly Hills Bar Association, et al., in Support of Respondents
  • Brief for Bishops of the Episcopal Church in the State of California, et al in Support of Respondents and Affirmance
  • Brief for California Assembly Speaker John A. Pérez and Law Professors Concerned With Representative Democracy in Support of Respondents
  • Brief for California Council of Churches, et-al in Support of Respondents and Urging Affirmance
  • Brief for the California Teachers Association and the National Education Association in Support of Respondents
  • Brief for California Professors of Family Law in Support of Respondents
  • Brief for the Cato Institute and Constitutional Accountability Center in Support of Respondents
  • Brief for Chris Kluwe and Brendon Ayanbadejo in Support of Respondents
  • Brief for Columbia Law School Sexuality & Gender Law Clinic and the Society of American Law Teachers in Support of Respondents
  • Brief for Constitutional Law and Civil Procedure Professors Erwin Chemerinsky and Arthur Miller in Support Of Plaintiffs-Respondents Urging Affirmance
  • Brief for Dr. Maria Nieto in Support of Respondents
  • Brief for Edward D. Stein, Joanna L. Grossman, Kerry Abrams, Holning Lau, Katharine B. Silbaugh and 32 Other Professors of Family Law and Constitutional Law in Support of Respondents
  • Brief for Family Equality Council; Colage; Our Family Coalition; Gay, Lesbian, and Straight Education Network; the Center on Children and Families; the Child Rights Project; and Sarah Gogin in Support of Respondents Perry, Stier, Katami, Zarrillo, City and County of San Francisco, and Edith Schlain Windsor, in her Capacity as Executor of the Estate of Thea Clara Spyer, Addressing The Merits And Supporting Affirmance (also filed in 12-307)
  • Brief for Garden State Equality in Support of Respondents
  • Brief for Gary J. Gates in Support of Respondents (On the Merits)
  • Brief for Foreign and Comparative Law Experts Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, and Ryan Goodman in Support of Respondents
  • Brief for Hon. Judith S. Kaye (Ret.), Profs. Stephen Gillers, Charles G. Geyh, and James J. Alfini, and Mark I. Harrison in Support of Respondents
  • Brief for Howard University School of Law Civil Rights Clinic in Support of Respondents (On The Merits)
  • Brief for International Human Rights Advocates in Support of Respondents
  • Brief for Jonathan Wallace, Meri Wallace and Duncan Pflaster in Support of Respondents
  • Brief for Kenneth B. Mehlman in Support of Respondents
  • Brief for Lambda Legal Defense and Education Fund, Inc. and Gay & Lesbian Advocates & Defenders in Support of Respondents
  • Brief for Leadership Conference on Civil and Human Rights, Bar Associations and Public Interest and Legal Service Organizations in Support of Respondents
  • Brief for Marriage Equality USA in Support of Respondents
  • Brief for Massachusetts, Connecticut, Delaware, District Of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington in Support of Respondents
  • Brief for National Center for Lesbian Rights in Support of Respondents
  • Brief for the National Organization for Women Foundation and the Feminist Majority Foundation in Support of Respondents
  • Brief for National Women’s Law Center, Williams Institute Scholars of Sexual Orientation and Gender Law, and Women’s Legal Groups in Support of Respondents (On The Merits)
  • Brief for the Organization of American Historians and the American Studies Association in Support of Respondents
  • Brief for Parents, Families and Friends of Lesbians and Gays, Inc. in Support of Respondents
  • Brief for Political Science Professors in Support of Respondents and Affirmance Addressing Political Power of Gay Men and Lesbians
  • Brief for Rev. Rick Yramategui, Rev. Herb Schmidt, and Rev. Darrell W. Yeaney in Support of Respondents’ Position on the Merits
  • Brief for the Southern Poverty Law Center in Support of Respondents
  • Brief for the State of California in Support of Respondents
  • Brief for Survivors of Sexual Orientation Change Therapies in Support of Respondents Kristin M. Perry, Et Al., and City and County of San Francisco, Urging Affirmance
  • Brief for the United States in Support of the Respondents
  • Brief for Walter Dellinger in Support of Respondents on the Issue of Standing
  • Brief for William N. Eskridge Jr., Rebecca L. Brown, Daniel A. Farber, and Andrew Koppelman in Support of Respondents
  • Brief for the Women’s Equal Rights Legal Defense and Education Fund on the Issue of the Special Interest of Women as a Gender in Support of Respondents
  • Brief for Constitutional Law Scholars Bruce Ackerman, Ash Bhagwat, Lee Bollinger, Erwin Chemerinsky, Michael C. Dorf, Lee Epstein, Barry Friedman, John C. Jeffries, Jr., Lawrence Lessig, William Marshall, Frank Michelman, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence Tribe, And William Van Alstyne Addressing The Merits And Supporting Affirmance (also filed in 12-307)
  • Brief for Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal (also filed in 12-307)
  • Brief for Westboro Baptist Church in Support of Neither Party Suggesting Reversal

United States v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al. (DOMA)

Merit Briefs

  • Brief for Petitioner United States (On the Jurisdictional Question)
  • Brief for Petitioner United States (On the Merits)
  • Brief for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (On the Jurisdictional Question)
  • Brief for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (On the Merits)
  • Brief for Court-Appointed Amica Curiae (On the Jurisdictional Question)
  • Brief for Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Brief for Respondent Edith Schlain Windsor (On the Merits)
  • Reply Brief for Court-Appointed Amica Curiae (On the Jurisdictional Question)
  • Reply Brief On Jurisdiction for Respondent The Bipartisan Legal Advisory Group Of The U.S. House of Representatives
  • Reply Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the United States House of Representatives
  • Reply Brief for Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Reply Brief for the United States (on the Jurisdictional Questions)

Amicus Briefs

  • In Support of Petitioner United States and Respondent Edith Schlain Windsor
  • Brief for 172 Members of the U.S. House of Representatives and 40 U.S. Senators in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for 278 Employers and Organizations Representing Employers in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the American Bar Association in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the American Federation of Labor and Congress of Industrial Organizations, Change to Win, and the National Education Association in Support of Respondent Edith Schlain Windsor
  • Brief for the American Humanist Association and American Atheists, Inc., American Ethical Union, the Center for Inquiry, Military Association of Atheists and Freethinkers, Secular Coalition for America, Secular Student Alliance, and Society for Humanistic Judaism in Support of Respondents (On the Merits)
  • Brief for the American Jewish Committee in Support of Edith Schlain Windsor (On the Merits) (Also filed in 12-144)
  • Brief for the American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Psychiatric Association, the American Psychoanalytic Association, the California Medical Association, the National Association of Social Workers And its New York City and State Chapters, And the New York State Psychological Association in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor (Also Filed in 12-144)
  • Brief for the Anti-Defamation League in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Bishops of the Episcopal Church in California, Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington and the District Of Columbia; the Jewish Theological Seminary of America; Manhattan Conference of the Metropolitan New York Synod of the Evangelical Lutheran Church in America; the Rabbinical Assembly; the Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College; Rabbi Akiva Herzfeld of Shaarey Tphiloh; the Union for Reform Judaism; Unitarian Universalist Association; United Church of Christ; the United Synagogue of Conservative Judaism; Affirmation; Covenant Network of Presbyterians; Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns; Methodist Federation for Social Action; More Light Presbyterians; Presbyterian Welcome; Reconciling Ministries Network; Reconciling Works: Lutherans for Full Participation; and Religious Institute, Inc. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Cato Institute and Constitutional Accountability Center in Support of Respondent Edith Schlain Windsor
  • Brief for the Center for Fair Administration of Taxes (CFAT) in Support of Respondents
  • Brief for Citizens for Responsibility and Ethics in Washington in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Constitutional Law Scholars in Support of Petitioner United States (On the Jurisdictional Questions)
  • Brief for Constitutional Law Scholars Bruce Ackerman, Ash Bhagwat, Lee Bollinger, Erwin Chemerinsky, Michael C. Dorf, Lee Epstein, Barry Friedman, John C. Jeffries, Jr., Lawrence Lessig, William Marshall, Frank Michelman, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence Tribe, and William Van Alstyne in Support of Respondent Edith Schlain Windsor (On the Merits) (Also filed in 12-144)
  • Brief for Dr. Donna E. Shalala, Dr. Louis W. Sullivan, Togo D. West Jr., Kenneth S. Apfel, Sheldon S. Cohen, Rudy F. Deleon, Jamie S. Gorelick, Michael J. Graetz, Dr. John J. Hamre, Benjamin W. Heineman Jr., Kathryn O. Higgins, Constance Berry Newman, and Harriet S. Rabb in Support of Respondent Edith Schlain Windsor
  • Brief for the Empire State Pride Agenda, Equality California, Equal Rights Washington, One Iowa, Equality Maryland, Vermont Freedom to Marry, Massequality, New Hampshire Freedom to Marry Coalition and Equality Maine in Support of Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Brief for Family Equality Council; Colage; Our Family Coalition; Gay, Lesbian, and Straight Education Network; the Center on Children and Families; the Child Rights Project; and Sarah Gogin in Support of Respondent Edith Schlain Windsor (On the Merits)(Also filed in 12-144)
  • Brief for Family Law Professors and the American Academy Of Matrimonial Lawyers in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Federalism Scholars in Support of Respondent Edith Schlain Windsor
  • Brief for Former Federal Election Commission Officials in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Former Federal Intelligence Officer in Support of Petitioner United States and Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Former Senators Bill Bradley, Tom Daschle, Christopher J. Dodd, and Alan K. Simpson on the Merits in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Former Senior Justice Department Officials and Former Counsels to the President in Support of Petitioner United States (On the Jurisdictional Question)
  • Brief for GLMA: Health Professionals Advancing LGBT Equality Concerning the Immutability of Sexual Orientation in Support of Affirmance (On the Merits)
  • Brief for Gary J. Gates in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Gay & Lesbian Advocates & Defenders and Lambda Legal Defense & Education Fund, Inc. in Support of Petitioner Unite States and Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Historians, American Historical Society, et al. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Honorable John K. Olson in Support of Respondent Edith Schlain Windsor (On the Jurisdictional Question)
  • Brief for the Honorable John K. Olson in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Honorable Lawrence J. Korb, Radm. Thomas F. Atkin, Bg. Roosevelt Barfield, Dr. Coit D. Blacker, Gen. Wesley K. Clark, Richard Clarke, Hon. William Cohen, Cdr. Beth Coye, Hon. Russell D. Feingold, Bg. Evelyn Foote, Ltg. Robert G. Gard, Jr., et al. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Institute for Justice in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Los Angeles County Bar Association and Armed Forces Committee of the Los Angeles County Bar Association in Support of Respondent Edith Schlain Windsor
  • Brief for Family and Child Welfare Law Professors in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Leadership Conference on Civil and Human Rights, Bar Associations and Public Interest and Legal Service Organizations in Support of Respondent Edith Schlain Windsor
  • Brief for NAACP Legal Defense & Educational Fund, Inc. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for National Women’s Law Center, Williams Institute Scholars of Sexual Orientation and Gender Law, and Women’s Legal Groups in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for New York, Massachusetts, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Organization of American Historians and the American Studies Association in Support of Respondent Edith Schlain Windsor
  • Brief for OutServe-SLDN Inc. in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for the Partnership for New York City in Support of Respondent Windsor and Affirmance of the Second Circuit (on the Merits)
  • Brief for Political Science Professors in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Professors Nan D. Hunter, Suzanne B. Goldberg, Kathryn Abrams, Katherine M. Franke, Burt Neuborne, and Angela P. Harris Addressing The Merits in Support of Respondent Edith Schlain Windsor
  • Brief for Scholars of the Constitutional Rights of Children in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (Sage), the National Senior Citizens Law Center, the American Society on Aging, the National Hispanic Council on Aging, the Southeast Asia Resource Action Center, and the National Organization of Social Security Claimants’ Representatives in Support of Respondent Edith Schlain Windsor (On the Merits)
  • Brief for Survivors of Sexual Orientation Change Therapies in Support of Petitioner United States of America and Respondent Edith Schlain Windsor

 

  • In Support of Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives
  • Brief for the American Civil Rights Union in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for the Becket Fund for Religious Liberty in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for the Beverly Lahaye Institute and the National Legal Foundation In Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Catholic Answers, Christian Legal Society, and Catholic Vote Education Fund in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also Filed in 12-144)
  • Brief for Center for Constitutional Jurisprudence in Support of Respondent Bipartisan Legal Advisory Group (On the Jurisdictional Question)
  • Brief for Chaplain Alliance for Religious Liberty, et al., in Support of Respondent the Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Citizens United’s National Committee for Family, Faith and Prayer, Citizens United Fdn., U.S. Justice Fdn., Gun Owners of America, Inc., Gun Owners Fdn., The Lincoln Institute, Public Advocate of the U.S., Declaration Alliance, Western Center for Journalism, Institute on the Constitution, Abraham Lincoln Foundation, English First, English First Fdn., CLDEF, Protect Marriage MD PAC, Delegate Bob Marshall, and Senator Dick Black in Support of Respondent Bipartisan Legal Advisory Group (On the Jurisdictional Question)
  • Brief for Citizens United’s National Committee for Family, Faith and Prayer, Citizens United Foundation, U.S. Justice Foundation, Gun Owners Foundation, The Lincoln Institute, Public Advocate of the U.S., Declaration Alliance, Western Center for Journalism, Institute on the Constitution, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, English First, Protect Marriage Maryland PAC, Delegate Bob Marshall, and Senator Dick Black in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Coalition for the Protection of Marriage in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Concerned Women for America in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for David Boyle in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Dovid Z. Schwartz in Support of Respondent Bipartisan Legal Advisory Group
  • Brief for Dr. Paul McHugh in Support of Respondent Bipartisan Legal Advocacy Group (On the Merits) (Also filed in 12-144)
  • Brief for Eagle Forum Education & Legal Defense Fund, Inc., in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for the Family Research Council in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Foundation for Moral Law in Support of Respondent Bipartisan Legal Advisory Group
  • Brief for Helen M. Alvaré in Support of Hollingsworth and Bipartisan Legal Advisory Group (On the Merits) (Also Filed in 12-144)
  • Brief for Indiana and 16 Other States in Support of Respondent the Bipartisan Legal Advisory Group (On the Merits)
  • Brief for International Jurists and Academics in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Law Professors in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Liberty Counsel in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Liberty, Life and Law Foundation and North Carolina Values Coalition in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (also filed in 12-144)
  • Brief for Manhattan Declaration in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group (On the Merits)(Also filed in 12-144)
  • Brief for National Association of Evangelicals; the Ethics & Religious Liberty Commission of the Southern Baptist Convention; the Church of Jesus Christ of Latter-Day Saints; the Lutheran Church-Missouri Synod; the Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for National Organization for Marriage in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Parents and Friends of Ex-Gays & Gays in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Robert P. George, Sherif Girgis, and Ryan T. Anderson in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for Social Science Professors in Support of Respondent Bipartisan Legal Advisory Group (On the Merits) (Also filed in 12-144)
  • Brief for the United States Conference of Catholic Bishops in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for United States Senators Orrin G. Hatch, Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelbe and Roger Wicker in Support of Respondent Bipartisan Legal Advisory Group (On the Merits)
  • Brief for Utah Pride Center, Campaign for Southern Equality, Equality Federation and Twenty-Five State-Wide Equality Organizations (Also filed in 12-144)
  • Brief for Westboro Baptist Church in Support of Neither Party Suggesting Reversal (On the Merits)

Reductio Ad Scalia

Justice Antonin Scalia
Supreme Court Justice Antonin Scalia was asked yesterday why his writings compare homosexuality to bestiality and murder. Answering a Princeton freshman, Justice Scalia said:

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd’. If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

(“I thought you would have known” seems a bit of a put down. This may have something to do with Justice Scalia having attended Georgetown undergrad, as opposed to Justices Samuel Alito, Sonia Sotomayor and Elena Kagan, all of whom attended Princeton.)

This is a common theme in the logical argument against cultural and moral relativism, particularly when it comes to homosexuality. And it is a provocative argument, as far as it goes. If we are to make no moral judgments about sexuality, then each and every type and instance of behavior is a matter of choice—polygamy, bestiality, you name it. Once we admit morality, we are broadly entitled to hold to it and the distinctions we make, even in the face of popular disagreement.

This is something worth thinking about as we make private and public policy, but it is far from dispositive. Some think we are at our best and doing our best when we hold strictly—including the “strict” construction of the Constitution, or for that matter of the Ten Commandments. But the real world has a funny way of demanding flexibility and fluidity from our philosophers, lawmakers, law interpreters and enforcers.

So Justice Scalia is not entirely wrong. He and all of us are, to avoid the absurd, allowed to attach particular values to homosexuality, bestiality, polygamy, divorce, whatever. There are probably still some out there who believe that slavery is moral; we know at least that it still thrives in the world. As for killing, morals differ for different circumstances; if not we would have outlawed killing entirely, or would admit that we don’t make a clear enough distinction when we seem to be legislating hypocritically.

But the story doesn’t end when we prove logically that different morals are legitimate. In the real world, people suffer at the hands of our “moral feelings” as Justice Scalia calls them. In some ways, it’s always about the suffering. In the face of “moral feelings” among some that there was nothing wrong with slavery, much of America agreed to its greatest national conflict to relieve an equally great suffering. Those who have legitimate “moral feelings” about homosexuality and marriage might want to be weighing their profound discomfort against the suffering of millions, not to mention against the arc of history.

The Presidential Campaign: How Do They Get Away With This Stuff?


The refrain of this Presidential campaign, in the face of the breathtakingly nonsensical and mendacious, should be “How do they get away with this stuff?”

Consider these two related items.

1. In the view of most political scientists and pundits, the single most significant impact of being elected President of the United States is the power to appoint Supreme Court justices.

2. A recent FindLaw.com survey found that only 34 percent of Americans can name any member of the Supreme Court. Only 1 percent could name the entire Court. The percentage who can name any particular justice:

John Roberts – 20%
Antonin Scalia – 16%
Clarence Thomas – 16%
Ruth Bader Ginsburg – 13%
Sonia Sotomayor – 13%
Anthony Kennedy – 10%
Samuel Alito – 5%
Elena Kagan – 4%

Presumably, a number of the people paying attention to the campaign and voting for President are the same people who don’t know the name of a single Supreme Court justice.

That’s how.

There Is No MAD In Politics


The Supreme Court decision in American Tradition Partnership, Inc. v. Bullock confirms that states like Montana must follow the rule of Citizens United and allow corporations the same political speech rights as individuals, including speaking money in elections.

War Games (1983) is a charming movie with a serious message. The charming comes from a young Matthew Broderick, playing a computer geek whose gaming nearly starts a global thermonuclear war. He is able to avert it, and the serious message for everyone is spoken by the computer: “The only winning move is not to play.”

When nuclear weapons were used for the first and only time in 1945, and it was obvious that portions of the world could be destroyed in an instant, responses followed.  There were moves to keep them out of the hands of “bad guys”, there were demonstrations to “ban the bomb” from everyone, there were attempts to limit and reduce the weapons that everyone eventually got.

And then there was the idea of Mutually Assured Destruction (MAD). It was simple: If anyone with those weapons could as easily be destroyed as they could destroy, it would be “madness” for them to strike. And as much as our deepest humanity wants to deny it, MAD is the reigning paradigm that has prevented nuclear weapons from being used even once in the almost seventy years since Hiroshima and Nagasaki.

In post-Citizens United politics, there is no MAD. There is worthwhile talk of disclosure, transparency and constitutional amendments to at least moderate the influence of corporate money in elections. But there is also a realpolitik sense that in the meantime those with the biggest weapons may well win. And the prospective winners have no worries about being destroyed by any opposing arsenal. That is why, understandably, the Obama campaign very quickly pivoted on the issue of Super Pacs. It was a matter of political survival.

MAD has saved us from blowing ourselves up. It is not available to save the politics of democracy. It is time for the most creative minds to figure out something beyond the virtuously obvious but ineffective. Whatever that might be.

Pete Rose And The Healthcare Decision

It looks as if the Supreme Court will issue its decision on the Affordable Care Act (aka Heritagecare) this week. An unreported story is the relationship of this to baseball legend Pete Rose.

There has probably been more betting on the outcome of this legal question than any before, at venues such as Intrade. Presumably the bettors include some number of lawyers; with more than a million lawyers in the U.S., what are the odds of that?

Major League Baseball has so far banned Pete Rose from the Hall of Fame because he bet on games. Not games he or his team were involved in, just games. Ever since the Black Sox scandal almost a century ago, baseball has had a zero tolerance rule on gambling by anyone in the sport.

The courts and the bar associations that regulate the practice of law have well developed and strict rules of conduct for lawyers. Obviously illegal gambling is just that— illegal—and clearly out of bounds. Gambling addictions that affect practice have also taken a prominent place in the rules of professional responsibility.

But it doesn’t appear that reasonable and prudent legal gambling of any kind is an ethical problem for lawyers. Unless, that is, there is some kind of Pete Rose issue about it. Specifically: Can lawyers responsibly and ethically bet on court decisions with which they have absolutely no relationship? The answer awaits investigation, and maybe some law review articles.

As for the case itself, they say that only fools predict difficult Supreme Court decisions. So a fool rushes in:

1. The Court will have the law stand or fall as a whole and not pick and choose. There is no severability clause. The court can appropriately say that with such an integrated and complex piece of legislation, if Congress got it wrong constitutionally, it is up to Congress to get it right.

2. If it falls on the basis of the mandate, as widely expected, the reasoning of the majority is going to be a sight to behold and study. A principle of jurisprudence at every level is to decide legal issues as narrowly as possible, unless there is an intention to make a bold legal statement. When the Supreme Court speaks, the bolder the statement, the more far-reaching the impact. In a three-branch democracy, any statement about the limits of powers is very loud and long-echoing.

3. We may not have nine opinions, but we may have an almost complete set of concurring and dissenting opinions. For those who have never read dissents in Supreme Court opinions, be aware that in difficult and controversial cases, it is not unheard of or inappropriate for dissenting Justices to politely but clearly state that the majority is in all respects wrong (see the four dissents in Bush v. Gore).

And now, the bottom line. Intrade traders have placed their bets, and they say the chances of “The US Supreme Court to rule individual mandate unconstitutional before midnight ET 31 Dec 2012” are 76.5%. Judging by the comments on the site, the bettors are some combination of knowledgeable thinkers and anti-Obama ideologues. Intrade and those analysts willing to go out on a limb are right. The mandate will be found wanting, with strenuous disagreement among the Justices. And on the basis of non-severability, so will the entire Affordable Care Act.

Or, then again, maybe not.