"The blog has also taught me that serious journalism still has a very large place amid the babbling noises of the Internet."

"I have but one regret, and it is that I was unable to persuade the traditional journalists who control the credentialing for Congress that I was as independent as they feel they are, and that journalism can take unusual new forms and still be journalism."

Writes Lyle Denniston, ending his stint on SCOTUSblog.

"The Supreme Court on Wednesday appeared sharply and perhaps evenly divided in its first major abortion case in almost a decade..."

Writes Adam Liptak at the NYT (in an article illustrated with a really excellent photograph by Gabriella Demczuk).

Justice Anthony M. Kennedy, who almost certainly holds the crucial vote, mused that it might be useful to return the case to the lower courts to develop more evidence. He said it would help to know how many abortions could be performed in the clinics that would remain open if a restrictive Texas law was allowed to become fully effective....

Justice Antonin Scalia’s death last month may have muted the prospect of truly bold action, but even a 4-to-4 tie would have enormous consequences because it would leave in place an appeals court decision that could drive down the number of abortion clinics in Texas to about 10, from roughly 40.

Here's the analysis of the argument at SCOTUSblog:

The four more liberal members of the Court — Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor — energetically challenged the lawyer for Texas, and often did so in words that denounced what the Texas legislature could have been thinking in passing the restrictions.  Justice Sotomayor was so diligent that she even went on with questions after Chief Justice John G. Roberts, Jr., signaled that the lawyer then at the lectern was finished.

And here's the whole transcript of the argument.

"But Scalia’s arguments became quite clumsy, and raised some eyebrows, when he suggested that maybe the University of Texas needs fewer minority students..."

"... and he suggested that many of them find that the classes are 'too fast' for them at such high-rank institutions, and thus prefer to go to lower-ranked, 'slower-track schools.'"

From Lyle Denniston's description of the oral argument in Fisher v. University of Texas at Austin yesterday.

Garre, the university’s lawyer, responded by reminding Scalia that the Supreme Court had rejected that very type of argument a dozen years ago in the last major ruling to uphold a college affirmative action plan, for the University of Michigan Law School.  “Frankly,” Garre said, “I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. . . .  Now is not the time and this is not the case to roll back student body diversity in America.”

... [Garre's] comment seemed directed at Justice Kennedy, in the hope that Kennedy would not be comfortable casting the decisive vote that ended affirmative action on American campuses. If those were his thoughts, the hearing provided some foundation for them.

Those who are focused on Justice Kennedy should remember that he dissented in the University of Michigan Law School case? There, he wrote:

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.

Kennedy's questions yesterday were focused on the procedural status of the case, which looked to him like "the same case" the Court had sent back in 2013 when it sent the parties back to the lower court with instructions to look more deeply into something that I assume was highly significant to Justice Kennedy. The case did not go back to the district court for the development of evidence but only to the Court of Appeals which purported to look more deeply into the legal question. Yesterday, there was much discussion of sending the case back down again, but Kennedy was left saying the university “would not put in more evidence than we have now.”

ADDED: By pointing at the mismatch argument crudely, Scalia gave supporters of affirmative action a lavish gift.

The Supreme Court takes 7 cases seeking Religious Freedom Accommodation Act exemptions from Obamacare.

Explained, at SCOTUSblog, by Lyle Denniston. These cases all involve non-profit religious organizations, which the federal government has tried to accommodate. You may remember the Hobby Lobby case. That had to do with for-profit corporations, which the government argued (unsuccessfully) had no right to accommodations under RFRA. In the new cases, non-profit organizations say that the accommodations they've been offered do not go far enough:

[The government's] accommodation requires the institution to notify the government of its objection; that, the government argues, is enough to excuse that institution from any direct role in providing contraceptives to their female employees. From then on, it is the government, working with the institution’s health insurer, that actually provides the free access to contraceptives for those employees....

The religious institutions have countered that, because the plans that will provide for the access are those institutions’ own heath insurance systems, the government will “hijack” those to provide the contraceptives. The mere act of notifying the government of a religious objection, those institutions have contended, works as a “trigger” to the government to go forward with contraceptive coverage through their plans. That, the institutions have said, confronts them with the choice of violating their religious beliefs or paying the heavy fines.

The organizations argue that their exercise of religion is substantially burdened by this level of involvement in the process. If this need to avoid even direct participation counts as a substantial burden on religion, then the government must have a compelling interest and it must meet that interest with the "least restrictive means."

In Hobby Lobby, the Supreme Court didn't decide but assumed that "the interest in guaranteeing cost-free access" contraception was compelling. It said that the government had certainly not used the least-restrictive means, because it didn't even give the accommodation that it worked out for not-for-profit organizations.

In these new cases, the question is whether even that accommodation is the least restrictive, a question Hobby Lobby left open. As the Court wrote in that case, the "most straightforward" accommodation "would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections."

The Supreme Court just agreed to hear another Affordable Care Act case.

This is King v. Burwell, the case about "whether the program of tax credits applies only in the consumer marketplaces set up by sixteen states, and not at federally operated sites in thirty-four states." Announcing the decision on Friday afternoon was unusual, as Lyle Denniston explains at SCOTUSblog.

If it decides to limit the subsidies to the state-run “exchanges,” it is widely understood that that outcome would crash the ACA’s carefully balanced economic arrangements.... The fate of those subsidies apparently will now depend upon how the Court interprets four words in the Affordable Care Act. In setting up the subsidy scheme, Congress said it would apply to exchanges “established by the State.” The challengers to subsidies for those who shop for insurance on a federal exchanges have argued that those words limit the availability to the tax benefits solely to state-run exchanges....

AND: Also at SCOTUSblog, Nicholas Bagley: calls this granting of review "a significant setback for the Obama administration." The government had opposed review, noting the lack of a split in the circuit court decisions, but that's not what Bagley really finds "troubling," given the importance of the issue. He's bothered by the implication that at least 4 Justices — it take 4 votes to grant review — "think—or at least are inclined to think—that King was wrongly decided."

ADDED: This seems to be an occasion for dragging out that old and oft-quoted line: "th’ Supreme Coort follows th’ election returns."

"Arguing that the Ninth Circuit panel that ruled against the Nevada ban on same-sex marriage last week did not appear to have been selected by a neutral process..."

"... a private group in that state on Monday asked the full Ninth Circuit to reconsider that ruling to assure that the group got a fair hearing...."

The filing on Monday, citing an analysis done of gay rights cases in the Ninth Circuit since January 1, 2010, said that there have been eleven of those cases and that Judge Berzon sat on five and Judge Reinhardt on four. “Statistical analysis,” it said, “demonstrates that the improbability of such occurring randomly is not just significant but overwhelming.  Thus, the odds are 441-to-1 against what we observe with the relevant cases.” There are eighteen active judges on that court who have never been assigned to a gay rights case, the motion said....

Conceding that the Ninth Circuit does have “a neutral process” for assigning judges to panels, the motion contended that, “in this case, the appearance is unavoidable that those measures failed.”

That is, the group — the Coalition for Protection of Marriage — isn't saying that that something underhanded happened, only that it unavoidably looks that way, and appearance matters and is a reason for en banc review.

Here's the PDF of the motion, which uses a term for same-sex marriage that I have never noticed before: "genderless marriage."

Today, in the Supreme Court, "EPA mostly wins, but with criticism."

Lyle Denniston explains Utility Air Regulatory Group v. Environmental Protection Agency.

Leaving the federal government with considerable power to impose controls on greenhouse gases that contribute to heating up the planet and causing climate change, on Monday the Supreme Court also delivered a stern lecture to the Environmental Protection Agency for claiming regulatory power that Congress did not give it.

"In an opinion filled with chilling, repeated references to being within shooting or grenade-throwing distance of the president..."

"... the Supreme Court ruled unanimously on Tuesday that the Secret Service did not engage in unconstitutional censorship when its agents moved protesters out of range of a president as he dined on an outdoor restaurant patio."

"The Supreme Court Case That Could Clobber Public-Sector Unions."

Garrett Epps looks at yesterday's oral argument.

[The National Right to Work Committee argues] that permitting the [public-sector] unions to collect fees for representing non-members—the so-called “agency fee”—violates the First Amendment....

Since public employees work for government, everything they bargain about is political. Higher wages, better benefits, new work rules—all affect the state budget. Assessing fees from non-members thus requires them to pay for political speech.

All the expenses, in other words, are non-chargeable.

Scalia appeared skeptical of that argument, but it went over with three of the other four conservatives.

So liberal hopes hang on Scalia of all people. Epps extracts some quotes.

"Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem...

"... not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their 'political fights,' Breyer said, but noted that he could not find anything in the history of the clause that would 'allow the president to overcome Senate resistance' to nominees."

From the SCOTUSblog write-up of today's oral argument in in National Labor Relations Board v. Noel Canning, about the President's power to make appointments without Senate confirmation.

... U.S. Solicitor General Donald B. Verrilli, Jr. The Solicitor General made little headway in arguing that the [Recess Appointments Clause] meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power. He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most....

Washington lawyer Miguel A. Estrada, speaking for the Senate’s current Republican members, made a vigorous defense of leaving the Senate to decide its own procedures, including when it takes a recess....

"Splitting 5 to 4, the Supreme Court... refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state."

Lyle Denniston explains the issues and the votes:

The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.

"In a surprise development," the Supreme Court took another affirmative action case.

Just now, the Court "agreed to decide whether a state may constitutionally ban the use of race in deciding who gets admitted to public colleges or universities."  This is huge, considering that there is currently a pending affirmative action case — dealing with the peculiar situation at the University of Texas that makes some use of race. "

"The new case is significantly broader," Lyle Denniston says.

ADDED: Here's a report on the 6th Circuit decision from last November. I don't think it's actually surprising that the Supreme Court took this case.

In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action....

The court said having supporters and opponents debate affirmative action through the governing boards of each public university would be much fairer than cementing a ban in the constitution, which it referred to as home of "the highest level" of public policy.

This issue is about the political process for adopting a policy when it is within the range of what can be done through majoritarian decisionmaking — not about whether affirmative action is beyond majoritarian decisionmaking. So I don't agree that this case is "significantly broader" than the University of Texas case. Both cases could be resolved with a big decision prohibiting affirmative action, but both present narrow questions. The Court's taking this new case doesn't mean something big is necessarily brewing, so I retract my "This is huge." I think the UT case could be huge, but taking this additional case doesn't add much reason to suspect that it will be.

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

"No part of your argument has to do with racial or ethnic profiling?" asked Chief Justice Roberts, and the SG agreed.

The Arizona immigration case is emphatically not about the issue that seems to be all people opposed to the law argue about in the political sphere.

As in the Affordable Care Act case, it was Solicitor General Donald B. Verrilli and former Solicitor General Paul D. Clement arguing on opposite sides. Unlike in that case and because the law under attack is a state law, Verrilli is arguing against the choice of the democratic majority, and Clement is arguing to uphold it.

Mr. Clements [sic] said the state was making an effort to address an emergency situation with a law that complemented federal immigration policy. “Arizona borrowed the federal standards as its own,” he said.

Mr. Verrilli countered that Arizona’s approach was in conflict with the federal efforts. “The Constitution vests executive authority over immigration with the national government,” he said.

That is, it's a federalism case, not a constitutional rights case. The question is the allocation of power between the federal and state government. (The Affordable Care Act case is also a federalism, and not a rights case, even though in the political sphere, people opposed to the individual mandate concentrate on the imposition on the individual, not misallocation of power as between the federal and state governments.)

“What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia asked.

Chief Justice Roberts said the state law merely requires that the federal government be informed of immigration violations and leaves enforcement decisions to it. “It seems to me that the federal government just doesn’t want to know who is here illegally and who’s not,” he said....

Chief Justice Roberts, writing for four of the justices in the majority, said the state law under review “simply seeks to enforce” a federal ban on hiring illegal workers. “Arizona went the extra mile,” he wrote last year, “in ensuring that its law closely tracks” the federal one.

That was from the Adam Liptak article in the NYT. Here's Lyle Denniston at SCOTUSblog:

In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally.  And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active....

The Court’s three more liberal Justices — Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — offered what appeared to be a less than enthusiastic support for the federal government’s challenge....

Kagan has recused herself, by the way. It seems rather obvious that Arizona will win this case. The first quote in Liptak's article is Sotomayor saying to Verrilli: "You can see it’s not selling very well."

Whatever happened to the "purchase" Larry Tribe thought Elena Kagan had on Anthony Kennedy's brain?

Remember that embarrassing sentence in Larry Tribe's letter pushing President Obama to nominate Elena Kagan? "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind." Remember discussing that in the context of a case called Arizona Christian School Tuition Organization v. Winn when it was argued last fall? I wrote:

This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. [Lyle] Denniston begins his description [of the argument] with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.

This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state....

Today, the Supreme Court came out with the decision in the case and there's Kennedy writing for the majority and Kagan  —with (guess who?) Ginsburg, Breyer, and Sotomayor — writing for the dissent.

The majority said there was no standing, which means that it did not reach the Establishment Clause question.

ADDED: Justice Kennedy makes the key distinction between this case and other cases (notably Flast) in which taxpayers had standing to challenge taxing and spending laws using the Establishment Clause:

[T]ax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience. In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture. The connec­tion would exist even if the conscientious dissenter’s tax liability were unaffected or reduced. When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative. And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accor­dance with their own consciences.

Dissenting,  Justice Kagan states the opposing position:

Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.

Still worse, the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other.

I love the clarity of Kagan's writing. But it will take more than that to gain purchase on Kennedy's brain. The truth is that Flast is out of line with a whole lot of other standing cases. Distinguishing this case from Flast may seem like a strain, but it's a more a matter of not letting the anomaly grow. Justices Scalia concurs, with Justice Thomas, to say Flast should be overruled altogether, and not just costrained. Scalia is pulling on one side, and Kagan on the other, and Kennedy maintains his purchase on the center.

The policy that is no policy... the problem of the sex discrimination action again Wal-Mart.

Lyle Denniston homes in on the plaintiffs' problem, as it emerged at oral argument in the Supreme Court yesterday:

[Justice Anthony] Kennedy said, “It’s hard for me to see…Your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.”

[The female employees’ lawyer, Joseph M.] Sellers chose in reply to dwell on the breadth of the store managers’ discretion, saying “There’s no guidance whatsoever about how to make those decisions.” The discretion, he added, is then used within “a very strong corporate culture” that leads managers to be “informed by the values the company provides.” The response itself seemed contradictory: if there was “no guidance whatsoever,” how were the managers led to apply company “values”?

I think plaintiffs are trying to say that if headquarters can see a pattern of women doing poorly under the decentralized discretion system, then keeping that system in place is a discriminatory policy. That absence of centralized control is the common issue that makes it an appropriate class action (rather than lot of individual cases that ought to be brought separately if at all).

So... the thing that makes a million individuals the same is that they... are different. They should have been made the same.... or more alike... by a sex-discrimination-conscious policy. I think it's possible to get your head around that idea, but nearly impossible to picture workable legal doctrine governing the real-world affairs of human beings... including the judges who would apply it.