The Edge: Don't Bet on SCOTUS Either Way

National Journal Staff

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Don’t Bet on SCOTUS Either Way

The Supreme Court heard arguments today on California’s constitutional amendment banning same-sex marriage, and the headlines suggest the justices are hesitant to embrace a ruling that would make gay marriage a fundamental right.

But divining the justices’ thinking is tricky work. During last year’s arguments over President Obama’s landmark health care law, coverage suggested the oral arguments were bad news for the president.

The New York Times reported then that “the heart of the Affordable Care Act is in peril.” CNN analyst Jeffrey Toobin called the proceedings a “train wreck for the administration.”

Yet just a few months later, the Roberts court upheld the major provisions in the law and journalists and pundits declared a historic victory for the president.

So despite all the cable TV hyperventilating and tea leaf reading going on, the court is far from finished. And until it is, neither side should take much comfort.

—Chris Frates


JUSTICES EXPRESS BUYER’S REMORSE AT GAY-MARRIAGE HEARING. At the first day of hearings on two gay-marriage cases before the Supreme Court (hear oral arguments or read the transcript), justices on the left, right, and center expressed skepticism about their decision to hear the issue in the first place, The New York Times reports. Conservative Samuel Alito indicated that it may be too soon for the Court to weigh decisively, asking, “You want us to step in and assess the effects of this institution, which is newer than cell phones and/or the Internet?” The likely swing vote, Justice Anthony Kennedy, wondered, “Why is taking a case now the answer?” In a positive sign for opponents of Proposition 8, Kennedy said the children of gay couples should be considered. “They want their parents to have full recognition and full status,” he said. “The voice of those children is important.” Read more

  • Charles Cooper, lawyer for the defense, has a long history of championing the conservative cause on issues like gun control and affirmative action. On Proposition 8, his plan was to avoid issues of homosexuality and marriage, and focus on issues of jurisdiction and process. (WSJ)

COULD OVERTURNING GAY-MARRIAGE BANS HELP GOP? If the Supreme Court rules state gay-marriage bans are unconstitutional, the issue could go a couple of ways. Just as with Roe v. Wade and abortion, gay marriage could remain a fixture in the public discourse long after a justice pens a majority opinion. Or it could move the debate onto the political back burner—and that would be a good thing for the GOP, National Journal’s Elahe Izadi reports. Read more

  • After famously—and incorrectly—predicting the Supreme Court would strike down the Affordable Care Act last year, legal analyst Jeffrey Toobin said today he was no longer “in the business of making predictions.”

NATION'S STRICTEST ABORTION LAW SIGNED IN N.D. North Dakota Gov. Jack Dalrymple signed an abortion law today that includes the strictest restrictions in the U.S., The New York Times reports. One measure forbids abortions once a fetal heartbeat has been detected, a milestone that can occur as early as six weeks into a pregnancy. “Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade," Dalrymple said in a statement. Abortion-rights groups have said they will sue to overturn the law. Read more

FIRST WOMAN EVER TO HEAD SECRET SERVICE. President Obama will for the first time ever appoint a woman to be director of the U.S. Secret Service, The Washington Post reports. Julia Pierson, 53, a three-decade veteran of the agency, will be announced later this afternoon. She does not require Senate confirmation. “Obama selected Pierson, in part, to bring a culture change to an agency whose masculine culture was exposed during an overseas trip last year,” The Post reported. That trip, to Colombia, exploded into scandal when it was discovered that agents had brought prostitutes back to their hotel rooms. Read more

WHY SENATE DEMS SHOULD WORRY ABOUT 2014. With the expected retirement of Tim Johnson, D-S.D., today, the path for Democrats retaining the Senate became that much more difficult, Bloomberg reports. Indeed, South Dakota has voted Republican in every presidential election since 1940—the only exception being Lyndon B. Johnson’s landslide win in 1964. South Dakota appears to be a likely Republican pickup, as does West Virginia, and Republicans would need only four more seats to win back the Senate. Democrats have 19 other seats to defend this year, five of which voted for Mitt Romney in 2012. Read more

NEW RULES COULD HEAD OFF GUN FILIBUSTER. New procedural rules adopted by the Senate at the beginning of the year could foil any attempt by Republicans Rand Paul of Kentucky, Ted Cruz of Texas, and Mike Lee of Utah to block gun-control legislation, Roll Call reports. The senators wrote in a letter to Senate Majority Leader Harry Reid that they “will oppose the motion to proceed to any legislation that will serve as a vehicle for any additional gun restriction,” but did not mention blocking a cloture motion. The new rules give Reid the power to circumvent efforts to block a motion to proceed without the need for a 60-vote supermajority. Read more

  • The proportion of Americans calling for stronger gun-control laws has fallen 10 points to 47 percent since December, when a mass shooting in Newtown, Conn., prompted calls for curbing gun violence (CBS News poll)

PETRAEUS TO APOLOGIZE FOR AFFAIR TONIGHT. Former CIA Director David Petraeus will publicly apologize for conducting an extramarital affair with his biographer at a speech tonight at the University of Southern California, The New York Times reports. “So please allow me to begin my remarks this evening by reiterating how deeply I regret—and apologize for—the circumstances that led me to resign from the CIA and caused such pain for my family, friends, and supporters,” he will say, according to advance text of the speech obtained by The Times. Petraeus resigned his CIA post in November after the affair became public. Read more


SUPREME COURT TO HEAR CHALLENGE TO DOMA. On Wednesday, the Supreme Court will dive back into same-sex marriage, this time hearing arguments in United States v. Windsor, over the federal Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. The complaint centers on the fact that one half of a female pair was forced to pay more than $360,000 in estate taxes after her partner died. Read more

TODD AKIN GETS THE ‘LAW & ORDER’ TREATMENT. Get your popcorn ready: NBC’s  Law & Order: SVU will feature a plot that uses as its jumping-off point former Missouri Rep. Todd Akin’s now-infamous comments about “legitimate rape,” Politico reports. The promo for Wednesday’s show goes thus:  “Ripped from the headlines: Words that set off a national controversy.” Cut to an actor on the witness stand saying, “It’s nearly impossible for a victim of legitimate rape to become pregnant.” Read more


"I don't like this coffee. If this cream were any richer and whiter it'd be carrying a liberal protest sign. —As tweeted by Rep. Steve Stockman, R-Texas (Roll Call)


THE LAWYER AND WRITER WHO MADE MARRIAGE EQUALITY HAPPEN. Twenty years ago, the argument in favor of same-sex marriage wasn’t even part of the national conversation. Those fighting for gay rights were focused on workplace discrimination, AIDS awareness, and hate crimes. But Evan Wolfson, a lawyer, and Andrew Sullivan, a conservative British writer, have been making the argument for marriage equality since the 1980s. BuzzFeed’s Chris Geidner visits with the two to reflect on their life’s work as both try to comprehend the notion—unfathomable until recently—that they might live to see complete marriage equality. "Everybody who's now 20, every gay person—a huge generation—they now take it for granted," Sullivan said. They "have never even doubted that they had the right to marry and have absolutely no clue about how it came about and don't care, really, for the most part. And, at some point, you say, 'Great! That's what I wanted.'" Read more


OBAMA’S PASSOVER VICTORY. On Comedy Central’s The Daily Show, host Jon Stewart focused an entire segment on Obama’s trip to the Holy Land, including his diplomatic victory arranging communication between Israel and Turkey. Elsewhere, Late Show host David Letterman had the zinger of the evening at the expense of the federal workforce, tying their productivity to tax season, while The Tonight Show’s Jay Leno was able to joke about FAA tower closures and the friendship between the United States and Israel. Read more


IRS ‘STAR TREK’ VIDEO LEAVES WILLIAM SHATNER APPALLED. As if things couldn’t get worse for the IRS, which last week apologized for spending $60,000 on a training video that spoofed Star Trek, Captain Kirk himself has now expressed his disapproval, The Hill reports. “So I watched that IRS video. I am appalled at the utter waste of U.S. tax dollars,” actor William Shatner, who played Captain James Kirk in the iconic television series, tweeted today. The kerfuffle over the video marks the biggest space scandal to hit the capital since Obama carelessly mixed Star Wars and Star Trek references in claiming he wasn’t capable of a “Jedi mind-meld.” Wondering what $60,000 buys? Judging by the five-minute video, bad writing, bad production values, and worse acting. Read more


YOLO SCALIA: PROTEST SIGNS FROM THE SUPREME COURT. The U.S. Supreme Court is hearing arguments today and tomorrow in two landmark same-sex marriage cases. The justices could rule in June that gay marriage must be legalized across the country. Protestors, most of them supporting gay marriage, gathered today outside the courthouse in Washington bearing messages like “2 Moms Make a Right,” “Dear Scalia, YOLO,” and “Don’t Mess with Dumbledore’s Rights.” See some of the best signs as captured on Instagram here.

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