I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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A strange re-writing of the DOMA opinion

Randy Barnett, writing on both the SCOTUSblog and the Volokh Conspiracy blog, has re-tooled the logic of Windsor v. United States in a form that is more pleasing to his desire for federalism cases.  Only, it’s not what the court ruled or said.   He describes his take on the logic of the decision:

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Strange citation of the day: Justice Scalia’s odd invocation of the Confederacy

He writes in the DOMA case:

The majority concludes that the only motive for this Act was the ““bare . . . desire to harm a politically unpopular group.”” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’’s scorn, see, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987)), but our respected coordinate branches, the Con- gress and Presidency of the United States.

Quick! What was Edwards about?  How did it show “scorn” to a “once-Confederate Southern state?  Which state?  How did Scalia vote?

Answers await below the fold.

Oh, and I’m almost a winner on the scavenger hunt he proposes in Windsor (yes, he really does propose a scavenger hunt).

Continue reading Strange citation of the day: Justice Scalia’s odd invocation of the Confederacy

DOMA is unconstitutional on Equal Protection grounds… Prop 8 punted for lack of standing

Scalia, dissenting today, has some language that the dissent could have used nicely in yesterday’s preclearance case:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’’s opinion aggrandizes the latter, with the predictable […]

Linda Greenhouse is justifiably afraid of the federalism arguments in the DOMA case

A fascinating passage in Greenhouse’s piece on the DOMA case quotes the lawyer for Wainwright (the state of Florida) in Gideon v. Wainwright, which held that there was a constitutional right to counsel for felony defendants in the state courts:

During the argument on Jan. 15, 1963, a Florida assistant attorney general, Bruce R. […]

Adam Liptak’s interesting entrail reading about cert grant votes on gay marriage cases

Adam Liptak of the New York Times has a fascinating speculation about clues from the oral arguments in the gay marriage case about why cert was granted.

A couple of points needed to understand the piece:  First, while it takes five votes to win in the Court, only four are required to get review. […]