Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Friday, July 11, 2025

Lawless, Leah Litman

 

Lawless:  How the supreme court runs on conservative grievance, fringe theories, and bad vibes by Leah Litman

Started: July 7, 2025
Completed: July 11, 2025
Recommendation: Recommended
Recommended By: Lots of political reviews

Review:

It seems like this is an effort to make the book more approachable, but there are a lot of references to the Barbie movie, the Mean Girls movie, Game of Thrones, Arrested Development, and American Psycho.  I found these largely distracting and rarely applicable beyond the surface level.  On the other hand, I've gotten rather well versed in how the Supreme Court works and didn't really need analogies in order to see where things were headed.  More important to me, was the collection of information that pointed the entire activity of the court to grievance.  I can easily see Justice Kavanaugh acting on the basis of grievance.  As Kavanaugh said in his own testimony, "This is a circus...what goes around comes around..."

Monday, March 3, 2025

The Most Powerful Court in the World, Stuart Banner

 

The Most Powerful Court in the World:  A history of the Supreme Court of the United States by Stuart Banner

Started: February 28, 2025
Completed: DNF
Recommendation: Not Recommended
Recommended By: Nobody

Review:

I did not check when I started, but Stuart Banner is a member of the Federalist Society.  I knew something was off as I started reading the book because the first step was to normalize politicization of the Supreme Court.  It worried me as it started, but as the book went on it became an apologist for such things as Dred Scott (bad decision, but Tawney was a pretty good guy).  As I was listening to the book after about a quarter of the way through things added up and I checked to see if Banner was a member of the Federalist Society.  Sure enough, he was.  So I started this book thinking that I was getting a historian's perspective and I realized that I was getting a right twist on everything.  Really threw me off coming from a UCLA professor in good standing.

Tuesday, July 30, 2024

American Crusade, Andrew L. Seidel

 

American Crusade:  How the Supreme Court is weaponizing religious freedom by Andrew L. Seidel

Started: June 11, 2024
Completed: July 30, 2024
Recommendation: Highly Recommended
Recommended By: My wife (likely the Opening Arguments podcast)

Words for which I sought help:

abstemious -- not self-indulgent, especially when eating and drinking.

solipsism -- the quality of being very self-centered or selfish

vertiginous -- causing vertigo, especially by being extremely high or steep

Review:

Reading this book, it does not feel concise.  It feels dense.  It feels heavy.  The tons of footnotes bely how detailed this book actually is.  Seidel, however, has taken a topic that could fill a much, much larger multi-volume tome and drilled down to the most important points.  Every page, every paragraph, most sentences are important.  I learned a lot.  I relearned a lot.  I feel like I know how this attack on American freedom works.  What a fantastic book.  I hope that there are no new cases to discuss in the future, but we all know there will be until the crusade is finally crushed.

Friday, May 31, 2024

Reading the Constitution, Stephen Breyer

 

Reading the Constitution:  Why I chose pragmatism, not textualism by Stephen Breyer former Associate Justice, US Supreme Court

Started: May 22, 2024
Completed: May 31, 2024
Recommendation: Highly Recommended
Recommended By: Nobody

Review:

Breyer makes the strongest arguments I have seen against textualism.  He points out cases where the court was right despite textual interpretation and where it was wrong because of it.  Clearly, he focuses on his own dissents, but he does a good job of highlighting why textualism is a problem.  This is a good read for lay people even though it is clearly intended for judges or judge wannabes.

Thursday, June 15, 2023

Nine Black Robes, Joan Biskupic

 

Nine Black Robes:  Inside the supreme court's drive to the right and its historic consequences by Joan Biskupic

Started: 6/12/2023
Completed: 6/15/2023
Recommendation: Recommended
Recommended By:  My wife

Review:

This is a a pretty good overall look at the Supreme Court in its current configuration.  Biskupic inserts herself into the description a couple of times which is mildly distracting, but serves to establish when she is not using second hand information.  I honestly do not think of any of the justices as "leftist," "left," or even progressive.  I think it is highly likely that, upon review, they will be found to be centrist.  The whole court has been so powerfully pulled to the right, however, that centrists are now viewed as "left."  I do not think that this bodes well for the court as a whole or for our government in general.

There is a great article here, but I will quote a bit from it because time is not friendly to links:

Democratic decisions require a body of factual evidence respected by all sides as true. Spiritual beliefs are compelling but they do not constitute empirical evidence. For this and other reasons, the abortion issue has created collateral arguments over church and state, and how we see each other as skeptics or believers.

OK, so that gives us a starting point when talking about most things, but especially abortion.  It also explains the huge rift in the court right now.  Nobody agrees on the facts of the case.  If decisions are built based on different and conflicting facts it is impossible to move forward.  When the chief justice talks about an individual praying alone on the 50 yard line despite pictures (in evidence and in the dissent) that show it was not someone praying alone, but a school leader praying amongst a large group of students complete disregard for facts is going to cripple the court and delegitimize the court.  I would think that it would be essential to work from the facts at the highest level of justice (and, yes, this is a rather small example, but it is a critical hinge in the case referenced).  That facts are simply ignored seems like a huge problem.

Sunday, November 27, 2022

Worse Than Nothing, Erwin Chemerinsky

 

Worse Than Nothing:  The dangerous fallacy of originalism by Erwin Chemerinsky

Started: 11/20/2022
Completed: 11/27/2022
Recommendation: Recommended
Recommended By: The library

Review:

I have felt that  "originalism" leads to too much potential for "both sides" analysis.  I think it also risks keeping the country mired in the past.  This book charts a pretty dangerous future where individual states can have a state religion and sponsor religious activities.  The whole concept of treating individuals equally can be lost as religious exceptions pile in.  Moreover, there is no merit in thinking that the structure of originalism offers a consistent, even handed approach for judges.  It serves, instead, as a cloak to hide individual judges' prejudices under the gauze of someone else's (a founder or some such) prejudices.  Kind of scary book.

Friday, November 11, 2022

Justice on the Brink, Linda Greenhouse

 

Justice on the Brink: The death of Ruth Bader Ginsberg, the rise of Amy Coney Barrett, and twelve months that transformed the Supreme Court by Linda Greenhouse was found at a local book store and the title just grabbed me.

Started: 5/16/2022
Completed: 11/11/2022
Recommendation: Highly Recommended
Recommended By: Nobody

Words for which I sought help:

protean -- tending or able to change frequently or easily

Review:

Greenhouse is a master of both the Supreme Court itself and it's rulings.  She set the scene well, drove me through the congressional hearings and then leapt onto the decisions.  Her analysis of the decisions was lucid, useful, and insightful.  I have to admit that I have always looked at the Court as addressing each case on its own merits.  Greenhouse, however, makes a compelling case that often Justices use one case to set the stage for another and that Justices have an agenda which they nudge along case-by-case building up case law so that their desired outcome appears both consistent with historical judgements and inevitable.  I think that this book will serve as a reference for me out into the future.

Tuesday, April 14, 2020

Supreme Inequality, Adam Cohen

Supreme Inequality: The supreme court's fifty-year battle for a more unjust America by Adam Cohen is a book that was mentioned in an article I read, but I cannot remember which article or where.

Started: 4/8/2020
Completed: 4/14/2020
Recommendation: Highly Recommended
Recommended By: Some article

Review:

What a great book!  The details of how the Supreme Court have changed over the course of 50 years is pretty impressive.  I have felt that the country is heading into a corpotacracy, but that has been from the perspective of major politicians (like how Reagan would not be considered right by the current GOP).

It is personally painful to see how the Supreme Court is changing and how it is accelerating under the justices that Trump has put in place.  It is pretty horrible and it is hard to imagine how things will move forward cleanly.

Sunday, September 22, 2019

Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., Supreme Court

Obergefell v Hodges is a case with the opinion written by Justice Kennedy and dissenting opinions from Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito.  This case made same-sex marriage the law of the land in the United States of America.

Started:  6/26/2015
Completed: 9/22/2019
Recommendation: Recommended
Recommended By:  Nobody


Review:

This is less a review and more a walk-through of the ruling from the Court.

HELD The Fourteenth amendment requires a State to recognize a same-sex marriage that was performed in another State.  The Petitioners in this case were not trying to demean marriage, but to gain the benefits and responsibilities thereof.  Changes to the nature of such things as marriage is consistent with the history of the country and have served to improve such covenants.  The Due Process clause (found in Section 1) of the Fourteenth amendment extends to personal choices inherent in individual dignity and autonomy.  The right to personal choice regarding marriage is inherent in the concept of marriage.  The right to have intimate interactions is inextricably linked to the right to marriage as well.

The court accepted the case on two basic issues:  1) is a State required to allow the marriage between two people of the same sex and 2) is a state required to recognize the marriage licenses of another state.

This is a collection of several cases rolled into one before the Supreme Court.  Obergefell and Arthur were married in Maryland after a 20 year relationship and after Arthur was diagnosed with ALS.  The returned to Ohio and Arthur died.  Obergefell was denied by the state of Ohio being listed as Arthur's spouse on the death certificate.  DeBoer and Rowse have several special needs children, but adoption laws in Michigan do not recognize same sex couples, so only one of the two is the legally recognized parent.  They came to the court seeking a way for them both to be legally the parents of their children.  DeKoe and Kostura were married in New York, but moved to Tennessee after DeKoe returned from deployment to Afghanistan.  Tennessee does not recognize same sex marriage, so their marriage was invalidated every time they crossed the state line.

The Supreme Court has addressed same sex relationships in only a few cases.  In Browers v. Hardwick the court ruled that there was no right to consensual sodomy.  In Romer v. Evans, however the court struck down an amendment to the Colorado constitution that explicitly prevented laws that protected LGBTQ people from discrimination.  The third case was Lawrence v. Texas which reversed Browers v. Hardwick and held that consensual sex could not be criminalized.

In 1993, Hawaii's Supreme Court dismissed a case regarding same sex marriage due to a change in the Hawaiian constitution as the case moved through the court system.  As a result, many concluded that same sex marriage could be allowed (see Baehr v. Miike).  The United State Congress passed the Defense of Marriage Act in response.  This act defined marriage on the federal level as heterosexual.  Several states disagreed and provided for same sex marriage within their laws and these laws were upheld by state supreme courts.

The fourteenth amendment has been interpreted by the Supreme Court as a protector of intimate choices (see Eisenstadt v. Baird in which a lecturer provided free vaginal foam as a contraceptive to an unmarried woman and was charged with a crime which was reversed by the Supreme Court).

Marriage, itself, has been addressed by the Supreme Court (most famously in Loving v. Virginia which affirmed a right to interracial marriage).  These cases addressed who was eligible to marry (Zablocki v. Redhail struck down a law that prevented people behind on child support from marrying; Turner v Safley held that inmates could marry).  The Supreme Court, however, has not considered the issue of same sex marriage to be a Federal question in the past (see Baker v. Nelson from Minnesota's Supreme Court, which was rejected by the Supreme Court on appeal), but DOMA changed that.

The court argued that there were four points in its consideration of the case:

  1. Marriage is inherently linked to personal choice (the logic is in Loving v. Virginia) and is effectively the height of intimacy.
  2. The right to marriage is older than any other right (as argued in Griswold v. Connecticut) including the Bill of Rights.
  3. Marriage protects children and the family
  4. Marriage is a keystone of social order
The plaintiffs argued that this case was not about including a disenfranchised group in an existing right, but the creation of a new right (same-sex marriage) and that such a thing should be very carefully reviewed in keeping with Washington v. Glucksberg (a case that wanted to establish the physician assisted suicide as a right via the fourteenth amendment and failed).  The Court's opinion held that Loving, for example, did not seek a new "interracial marriage" right and that Turner did not seek a new "inmate marriage" right--rather both asked that the existing marriage right be extended to a disenfranchised class.

The Court also found that the lack of an ability to marry was very harmful to same sex couples, that these harms extended to society as a whole, and that the result was subordination of an entire group (same sex couples).

A curious part of this opinion is that the Court argued that sufficient debate had occurred on this issue to be able to gauge whether same sex marriage was worthy of a decision instead of a call for more intense discussion.  The court cited the number of amicus briefs (among other things) as a way of evaluating whether or not the issue had been intensively discussed.  To my mind, this suggests that important court cases simply need more amicus briefs submitted to the Court.  These briefs should be present from people from different walks of life, with different backgrounds from the plaintiffs whether they are supportive of the plaintiff or the defendant.  

The Court identified that marriage was a fundamental right and that it is the unique role of the Judiciary to protect fundamental rights (which cannot be legislated into or out of existence).  The majority opinion effectively dismissed many of the arguments put forward against marriage on the basis of harms to the institution of marriage, potential for people to change their decision to procreate (a bit bizarre that one), and religion (it is a not a First Amendment right to bar someone else from doing something because you have a religious belief against the practice).

The Court's decision to require that states recognize that people legally married in another state are legally married in their state is quickly asserted as a matter of consistency in the ruling.

Sunday, November 17, 2013

The Nine, Jeffrey Toobin

The Nine:  Inside the Secret World of the Supreme Court by Jeffrey Toobin came up on a search of library audio books with the key words "supreme court" so I thought I'd give it a shot.

Started: 11/7/2013
Completed: 11/13/2013
Recommendation: Mildly interesting
Recommended By: Nobody

Review:

This book has an interesting angle on the effect of abortion in general and conservatism in particular on the Supreme Court.  Having said that, there is no stepping inside a "Secret World."  All of the details mentioned here about the court are readily available elsewhere.  The interesting angle is more the Conservative assault on the Court which has been quite successful and is reasonably well documented.

Saturday, November 9, 2013

Out of Order, Sandra Day O'Connor

Out of Order:  Stories from the History of the Supreme Court by Sandra Day O'Connor came up when I was searching for audio books with Supreme Court as a keyword so I thought I'd give it a shot.

Started: 10/25/2013
Completed: 11/7/2013
Recommendation: Recommend the audio version for those with an interest in US History
Recommended By: Nobody

Review:

Justice O'Connor seems to write her chapters as one might write a legal decision.  Between chapters it is not unusual for the same historical fact to reappear often  in the exact same way it was presented earlier.  It feels like the book is a collection of presentations with the occasional chapter being a combination of several speeches.  As a result, there is overlap between them.  This is why I recommend the audio version...the overlaps are relatively small and easy to hear, but I can imagine reading the same thing over and over and thinking that she had said all she was going to say.  Rather, I think that each time she addresses a major character or event at the court, she feels the need to set the historical precedent which led to the event itself.  Hearing her describe these events with frequently the same inflection suggests that this is material that is familiar and important to her, kind of like a point that a teacher might repeat over and over in the hopes that a child would come to know the material through repetition alone.

Justice O'Connor's perspective alone is useful in understanding some of the seminal decisions for which she was a swing vote, but her sense of the other justices on the court--both current and historical was an interesting insight as well.  She remains active in the Federal Court system, though she has retired from the Supreme Court.  I enjoyed her fresh insights, her take on historical courts, and her severe and ardent dislike for circuit riding (which seems exceedingly well founded).  After reading her work (in contrast to Justice Stephen's book) I feel like I've had a character sketch of Justices framed by their life, times, and decisions.

Saturday, September 28, 2013

Five Chiefs, John Paul Stevens

Five Chiefs: A Supreme Court Memoir by John Paul Stevens falls into the broad category of books about the Supreme Court. I'm interested in learning more and more about how the court works and this is part of the dip into understanding the court better. I picked up an audio version from the library to hear during my commute, but this book has been on my shelf for a while and the area has been a long term interest.

Started: 9/18/2013
Completed: 9/28/2013
Recommendation: Recommended, good insight into the court
Recommended By: I read a review of this book that recommended it as one for anyone who wanted to know more about the Court, but I cannot recall the source of that review, maybe the Washington Post

Review:

Justice Stevens does not stand out in my mind as an exceptional judge.  Having said that, he simply must be a fantastic judge to have made it to the Supreme Court.  I have read a few of his opinions and while I do not agree with all of them, I have always found his logic appealing.  As a result, I was looking forward to this insight into the court.  Justice Stevens does not tell you how the Court makes decisions, but he does give you insight into how the Court operates.  Of course, the memoir is his own and it is littered with his opinion (an opinion that somehow, reverberates) on a wide array of items.  It was stunning to me that he put so much time into the layout of tables in a general conference room, but perhaps it is this attention to detail that made him a good judge.  I'm glad I read this book, though, as I feel like I understand the man behind the opinions much better.  I would recommend that anyone interested in the Court from the perspective of one who served on it for quite some time,

Wednesday, June 26, 2013

UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., Supreme Court

United States v. Windsor, Executor of the Estate of Syer, Et. Al. is a case with the Opinion of the Court written by Justice Kennedy and Disenting opinions from Chief Justice Roberts, Justice Scalia, and Justice Alito.  This case effectively overturned the Defense of Marriage Act in particular saying that marriage between same sex partners is no different (for the Federal Government) then marriage between opposite sex partners.

Started: 6/26/2013
Completed: 6/26/2013
Recommendation: Take the time to read this...it is complicated
Recommended By: My wife

Words I looked up:

anodyne -- not likely to provoke dissent or offense

consanguinity -- related by blood

elides -- annuls or quashes (legal definition).  Within context this word is exceedingly well chosen as it was used to suggest that the amicus argument was invalid because the amicus argument would quash the distinction between the enactment of a law and the enforcement of it.  The word also means (when used with speech) slurring over (as in missing a vowel) and so the flavor of this word choice is to suggest that the amicus argument attempts to ignore the distinction by slurring over the very distinction between a law and the enforcement of it.  What an impressive way to set the stage for subsequent, more detailed argument.

prudential limits -- limits imposed upon the judiciary (in this case, by the judiciary).

Review:

This is less of a review and more of a walk-through of the arguments.

OPINION OF THE COURT

SUMMARY

HELD 1.  The court has jurisdiction

This case would normally have been ignored by the Supreme Court had the Executive not decided to stop supporting the consititutionality of the law while still (via the IRS) basically enforcing the law.  Since the Executive did that (basically gave up on the law, but still enforced it), there was a conflict internally within the government and the Supreme Court is in place to resolve such conflicts in the area of constitutionality.  Since the United States (the Executive branch) was no longer defending the constitutionality of the law, an amici curiae was allowed to make the defense and that body (the Bipartisan Legal Advisor Group created by the House of Representatives or BLAG) made a strong defense of the constiutionality of the law.  So, in essence, there are two sides to the issue (there is some serious cash involved as well) and it is consitutional in nature.  The Supreme Court should review the case and rule.

HELD 2. DOMA (Section 3) is unconstitutional by virtue of the Fifth Amendment (and is struck down)

(a) States should regulate marriage and, in this case, New York's decision that same sex marriage is legal is something that is both within the State's soverignty and an expression of an evolving understanding of fairness and equity within government.

(b) DOMA harms a group protected by New York's laws and the Federal Government cannot pass laws that harm a politically unpopular group (there are a series of court cases that reflect this point of view).  In addition, the Federal Government should not be writing laws that are properly (and severally) the responsibility of the States (marriage laws being an example).  Finally, DOMA forces same sex couples to live as a married couple according to the State, but an unmarried couple according to Federal Laws and this creates an untenable tension between State and Federal government.

DETAIL

I. History of the Case Prior to the Supreme Court

DOMA predates laws that allow same sex marriage within States.  Section 3 of DOMA says that a "marriage" is defined as between one man and one woman and "spouse" refers to someone of the opposite sex whenever those words appear in Federal law (over 1,000 such laws are affected).

The defendants were married in Canada, but retained residence in New York (where their marriage was recognized as valid).  One died and left her estate to the other.  The IRS required that income tax be paid on the inheritance and did not allow the spousal exclusion because of Section 3 of DOMA.  The defendant filed for a refund from the IRS via the court system. 

While the refund was still working its way into the court system, the Executive Branch informed congress that it would no longer respect section 3 of DOMA due to unconstitutionality.  This decision was made in an odd way as there had been no court case finding the law invalid and this is the first time that a decision has been made by the Executive not to enforce a law (based on the constitutionality of that law) without the law ever having been tested in court.  Moreover, the decision was odd because the Executive Branch continued to enforce the law (as in the IRS requiring an income tax on inheritence from same sex married couples).  The House of Representatives took issue with the unconstitutional finding and asked BLAG to intervene in existing cases on behalf of the Legislative Branch (the Judiciary did not allow BLAG to become the defendant, but made them an "interested party").

The District Court that heard the tax refund suit found in favor of the defendants and declared Section 3 unconsititional (ording the United States to pay a refund with interest).  A couple of appeals were filed and the Second Court of Appeals for the Second Circuit agreed with the District Court's ruling.  In an unrelated case, the Second Court of Appeals for the First Circuit also found section 3 of DOMA to be unconstitutional.

II.  Can the United States and/or BLAG appeal this case to the Supreme Court?

This is a detailed repitition of the Jurisdiction argument provided in the Summary.  It addresses whether there was harm (yes, the United States had to pay a large sum of money).  BLAG could be involved as a strong advocate via amica curiae due to its "sharp adversarial concerns."

In addition, the appeal should be heard because dismissing it would suggest that the Second Court of Appeals should have dismissed the previous appeal and that would leave 94 cases in a sort of limbo as to how justices should rule.  Additionally, DOMA is pretty far reaching (1,000 laws) and leaving this issue ambiguous would almost undoubtedly lead to many more cases and lots more expenses.

Finally, the Judiciary simply agreeing with the Executive position as to the consititutionality of a law without hearing the case would suggest that it is the Executive and not the Judicial branch which determines constitutionality.  Since that is not the case (the Judicial branch is saddled with the role of determining constitionality), it is necessary that the Supreme Court hear the case even though the United States is both a plaintiff and in agreement with the defendant.

Therefore, this is a weird case with huge implications and needs Supreme Court Review, so the Court did (and should) review the case.  The United States is the plaintiff as the agrieved party and BLAG plays a role as amicus curiae.

III.  Are State and Federal Laws in Conflict?

The States regulate marriage, but the Federal Government can address rights and privileges of married couples as determined under a series of other rulings.  The Federal Government has also messed with the validity of a marriage (citing a "fake" marriage for immigration purposes as being invalid despite meeting State qualifications).  So, there is some basis for the Federal Government to address (and even define) marriage.

DOMA, however, is very far reaching and improperly bridges State sovereignty which has traditionally been the location for definition of the nature of marriage.  DOMA flies in the face of a long history of saying that marriage was a State thing, not a Federal thing.  DOMA is also a discriminatory policy (it does not open up opportunity to all groups, but restricts opportunity to a well defined group).  New York, on the other hand was exercising its marriage laws to increase opportunity.

IV.  The Fifth Amendment is being ignored

DOMA seeks to harm the very group that New York seeks to protect.  Because of that, due process is not being afforded the harmed group and equal protection under the law is not being respected.

Both the wording and the intent of DOMA is to prevent one group from deriving benefits another group is granted.  The law itself has the stated purpose of imposing a moral teaching.  The purpose of the Law as described by the enactors was to create a second class of marriage and to discourage States from passing laws allowing same sex marriage.

In order to accomplish this goal, DOMA builds in inequality into all existing and future laws (not the least of which is the United States tax code).  In addition, it identifies a set of State sanctioned marriages that will be made unequal under the law.  Basically there would be one set of privileges and responsibilities as viewed by the State and another set of privileges and responsibilities as viewed by the Federal Government.  By making same sex marriage "Federally unworthy" a second-tier of marriages is created.

This inequality of marriage between Federal and State creates a huge number of problems (tax issues, healthcare benefits, bankruptcy, burial in Federal cemetaries, recognition of crimes against spouse of a United States official, and Social Security benefits are identified).

The Fifth Amendment requires "equal protection under the laws" but DOMA clearly does not do this.  When the Fifth Amendment is coupled with the Fourteenth Amendment it is clear that DOMA has overstepped.  Thus, DOMA is struck down.

ROBERT'S DISSENT

The Chief Justice accepts the argument of Justice Scalia (below) on both jurisdiction and constitutionality.  In addition it seems unlikely that so many legislators and the President had a principal purpose that was a bare desire to harm a group of people.  There is a distinct lack of evidence that the law was passed with an intent of malice.

The ruling as provided by the majority cannot do more than simply decide this case, it provides no guidance as to what definition of marriage States may use.  In future cases regarding the constitutionality of a given State's marriage definition the very arguments used to strike down DOMA will make it difficult to decide those cases.

There will be future cases around same sex marriage and this case will not serve as guidance for those future cases due to the narrow arguments by the majority.

SCALIA'S DISSENT

I. Jurisdiction

A. The Plaintiff and Defendant agree

Both the Plaintiff and Defendant argue that the lower appeals court properly resolved this issue.  The heart of the argument from the majority is that the Judicial must decide the constitutionality of the law.  This concept places the Judiciary inappropriately at the top of the Government.  The design of the constitution was such that the three branches should coordinate, not be tiered.

The only time the judiciary should be involved is when there is a conflict between plaintiff and defendant.  The judicial role is not to define the nature of a law, but to adjudicate a disputed claim.  Determining the compatibility of State and Federal laws is not a function of the judiciary at all.  Such a decision can only come as a side-effect of resolving a dispute.  In order for the court to rule, a dispute must be present.

While it is true that the United States would be injured by having to pay a tax refund, the plaintiff is actually asking the court to find the law unconstitutional (which would require paying that refund), so any injury sustained by the plaintiff cannot be resolved by the action which the plaintiff is requesting.  Between plaintiff and defendant there is no controversy.

The Supreme Court has never before agreed to hear a case when there is no controversy.  Allowing BLAG into the case is not appropriate.  The only other time such a thing has happened is when the validity of a mode of congressional action was at issue (the very existence of a portion of the legislative branch).  The artificial construct created by the majority to allow BLAG into the case is an incomprehensible twist of legaleze.  Even allowing BLAG to play the role of amicus does not meet the requirement for controversy because there must be "an opposing party" which BLAG even as amicus curae is not.

Reducing the Article III requirement that there be controversy to a "prudential aspect" is wrong and as poorly constructed as when it happened previously (Flast v. Cohen) but in the opposite direction.  Redefining Article III terms throws the court in chaos.  The idea that "controversy" can exist without disagreement is ridiculous.  Even the cases cited by the majority do not uphold this position.  Allowing the controversy to be upheld by an amicus curae is a breathtaking blow to Article III.

If both the plaintiff and defendant agree that a law is unconsititutional, there should be a consent decree.  This case should not have reached this point.  The President's decision to both claim the law is unconstitutional and enforce it is the issue here.  The President could have resolved this issue without the involvement of the courts and so could the legislature.  This court did not need to become involved and is inappropriately involved in interpreting the law rather than handling disputes.

B. Justice Alito's theory of jurisdiction (in his dissent) is flawed

Justice Alito makes the Judiciary the primary determiner of constitutionality and extends the legislative power dangerously.  Congress should not be able to bring the President to Court over perceived inadequacy in the execution of the law.

Justice Alito's system overreaches making it too easy to bring cases (simple majority) and able to bring cases that no other litigant could bring to court.  Suddenly the courts will be brought into endless political disputes.  Implementing Alito's system would suddenly convey enormous power to the judiciary contrary to the wishes of the founders.

Without Justice Alito's system, the Congress can address issues directly with the President and the system is defined to afford Congress such an avenue of redress.  Indeed the circular argument that the Court can force the President to do something the Congress cannot makes it clear that Congress should address issues directly with the President.

II.  The Merits of the Case are Lacking

A. The Majority Justification is rootless and shifting

The majority argues that States should decide who should marry, but this case does not question whether States should make that decision.  What does the majority mean by "the usual tradition of recognizing and accepting state definitions of marriage continue"?  Of course, this is at odds with the Federal Government's long history of dealing with marriage (in particular requiring that Utah outlaw polygamous marriage before becoming a State).

How in the world are the Fifth and Fourteenth ammendments linked in this case?  The only plausible linkage is that the Equal Protection clause is not the basis for the majority holding.  Then, the majority cites case studies that all center around the Equal Protection clause for strking down DOMA.  [Hereafter is a section of argument, I cannot follow that appears to argue that rationality (probably a legal term) is not being applied to a deferential framework.  I'm sorry, but I can't explain that piece.]

The argument made by the majority amounts to "substantive due process" even though those specific words do not appear in the holding.  Of course, in order to make that argument it would be necessary to argue that same-sex marriage is "deeply rooted in Nation's history and tradition" which is an impossible argument to make.  The other possible argument would be that DOMA eliminates "ordered liberty" which is equally absurd.

The argument of the majority boils down to a bare desire to harm same sex married couples.

B. DOMA was not malicious

The Constitution neither forbids nor requires moral legislation.  Previous rulings of this court require that a law which is only deemed unconstitutional on the basis of an alleged illicit motive for its passage should not be struck down.

Any argument that both the Legislature and President had malicious intent should be supported by a large body of evidence.  The majority only offers a passing reference to the existence of such evidence.

DOMA solved the issue of how Federal taxes (among other things) can be handled when one State disagrees with another about the nature of a marriage.  That is the whole reason for a definitional provision (such as  Section 3 of DOMA).

DOMA preserved laws against unanticipated consequences.  When spousal inheritance was passed by Congress it only reached opposite sex spouses, but current changes to State law could effect the Federal law (suddenly it would be extended to same sex spouses, an unanticipated consequence).  That is stabalizing, not malicious.

The assertions of the majority that the Congress and President acted with malice is untrue.  Defense (as in Defense of Marriage Act) is not to condemn, demean, or humiliate others, but to defend what already exists.  Casual acusations that suggest otherwise demean the Supreme Court.  It is appropriate to change law by election, not by asserting that elected officials are enemies of the human race.

The majority asserts that this case is limited to this type of same sex marriage and cites as support a case which explicitely was not supposed to support same sex marriage (though it did support sodomy).  The thought that this case will not serve as a foundation for subsequent cases is erroneous.

The very arguments against DOMA can be applied to State's definition of marriage as not same sex equally as strongly.  There is another shoe to drop and it is the requirement that all States allow same sex marriage.

The Constitution provides that we rule ourselves.  DOMA has allowed that with large and heated debate over this issue resolving into a variety of laws across several states (and even opposite laws in the same state).  This decision belongs with the People and not the courts.

ALITO'S DISSENT

I. Jurisdiction

The United States is not the proper Petitioner.  Alito agrees with Scalia's analysis of jurisdiction with regard to the United States.

In order for BLAG to stand as the Petitioner, BLAG had to demonstrate that it had a direct stake in the outcome.  As a representative of the House of Representatives, BLAG has standing because the House of Representatives has suffered an injury.  Since legislation is Congress' central function, impairment in its ability to legislate is a grievous injury.  Because the Second Circuit Court of Appeals struck down Section 3 of DOMA, the legislative function of the House became impaired and they are both injured by this and appropriate plaintiffs to the case therefore.  In the narrow case of the Courts striking down an act of Congress and the Executive declining to defend the act, Congress has a standing to defend the undefended statute and has a right to do so.

II. Due Process is not at risk

There is no constitutional right to same sex marriage and no part of the constitution addresses the issue.  The majority seems to argue substinative due process as a grant of the right to same-sex marriage.  Unfortunately such an argument requires that the rights be deeply rooted in our Nation's history and tradition or implicit in the concept of ordered liberty.  Neither of these arguments applies.

A new right is being requested of judges, not the legislature and judges have to address this issue with both caution and humility.  The concept of same sex marriage is new and the impacts of such a concept has yet to be developed.  No one is certain of the consequences, least of all judges.  The establishment of such a right should be done through the legislature, not the judicial branch.

III. Equal Protection is not at risk

Equal protection is a judicial construct that is aimed at specific cases not conceptual issues like the definition of marriage.  Equal protection has a very specific definition involving the need for a clear classification that is narrowly tailored to achieve a compelling government interest (several examples of such classifications are provided in both the positive and negative cases).  In essence, if a classification is being made, it needs to be relevant and appropriate to the law without being arbitrary. 

Classifications are also subject to a "rational-basis" review which means holding that the type of classification is sufficiently similar to a previous classification on which a ruling has already been made to apply that ruling to this case.  In this case the majority is arguing that opposite sex is to marriage as white skin is to voting. That is a strong argument which, if upheld, makes anyone upholding traditional marriage a bigot.

In essence, the court is being asked to resolve two different views of marriage.  Traditional (the older form) marriage is reserved for opposite sex couples in virtually every culture.  The argument made by BLAG is that this structure of marriage facilitates child rearing, but there are other explanations.  Consent-based marriage (the newer form) is a solemniziation of a mutual commitment between two persons.  This view of marriage is consistent with existing popular culture and is the basis for the argument that excluding same sex marriage is gender discrimination.

The constitution is silent on this distinction and it is not the role of the Judiciary to give it voice.

The legislature, however, cannot be silent.  The majority argues that Section 3 of DOMA infringes on State sovereignty.  Justice Alito agrees that marriage is an issue for State to resolve and that the Judiciary should not involve itself in that definition.

DOMA, however, does not infringe on State sovereignty.  States can still pass same sex marriage or not without any limitation from Section 3 of DOMA.  Section 3 of DOMA does identify a class of people that Congress felt should be fostered with special benefits because it is a unique type of economic unit.  Since Congress has the power to enact the laws effected by Section 3 of DOMA, it also has the power to identify the group affected by that law.