'Public Safety Exception' Stretched in Bombing Case

      The live capture of the Boston Marathon bombing suspect Dzhokhar Tsarnaev occasioned celebration not only in the streets of Watertown that night [April 19] but all across the United States. Smart work and good cooperation by all the law enforcement agencies involved had kept the Boston area safe and put the homegrown citizen-terrorist on the path toward what seemed certain to be severe justice.
      Almost immediately, however, the celebration was marred by some tough-sounding Republican politicians and supposed national security experts. They called for giving Tsarnaev not grade-A U.S. justice but the degraded brand crafted by the Bush administration and left partly in place under President Obama.
      Sen. Lindsey Graham, the South Carolina Republican, led the calls for treating Tsarnaev not as a U.S. citizen but as an “enemy combatant” without the full complement of rights recognized in the criminal justice system. Graham, a former military lawyer, acknowledged that, as a citizen, Tsarnaev had to be tried in a civilian, not a military, court. But he argued that Tsarnaev should be held as an enemy combatant for perhaps 30 days in order to interrogate him in detail without the complications of Miranda and other constitutional rights.
      The White House promptly rejected the suggestion. “He will not be treated as an enemy combatant,” press secretary Jay Carney said at the April 22 press briefing. “We will prosecute this terrorist through our civilian system of justice.”
      Behind the scenes, however, the FBI had already pushed the envelope on Tsarnaev’s rights by questioning the wounded teenager for 16 hours in a hospital room without a lawyer and without any Miranda warnings. It took a federal magistrate judge to hold a presentment within 48 hours, as required by the Federal Rules of Criminal Procedure, and advise Tsarnaev of his rights.
      The FBI agents questioned Tsarnaev under an expansive interpretation of the so-called “public safety exception” to the Miranda rule created by the Supreme Court in 1984. The 5-4 decision in New York v. Quarles allowed law enforcement officers to dispense with Miranda under very limited circumstances and only for a brief time. In an unannounced policy shift in 2010, however, the Obama Justice Department reimagined the decision into authority for somewhat open-ended interrogation to gather “valuable and timely intelligence not related to any immediate threat.”
      The contrast between the facts in Quarles and those in Tsarnaev’s case show how far the Supreme Court’s ruling has been stretched. The case against Benjamin Quarles began when a woman told patrol officers she had been raped by a man with a gun. Officers stopped Quarles in a grocery store — he matched the woman’s description of her assailant — and asked him, without any Miranda warnings, where the gun was. Quarles pointed to a corner and said, “The gun is over there.” Officers retrieved the weapon; at trial, the prosecution sought to admit both Quarles’s statement and the weapon itself as evidence.
      Lower courts said the statement and the gun were both out, but the Supreme Court said both could be admitted. “We conclude,” then-Associate Justice William H. Rehnquist wrote for the majority, “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.” Rehnquist stressed, however, the specifics of the case: the officer asked Quarles only one question and advised him of his rights as soon as he had located the weapon, the “threat” to public safety that justified the exception.
      The Justice Department memo took that ball and ran with it. “The circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case,” the unsigned, four-paragraph statement reads. In “exceptional” cases, questioning could extend to “possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.”
      As Emily Bazelon noted in her critical commentary in Slate, the FBI had found no need to dispense with Miranda after Timothy McVeigh was apprehended for the Oklahoma City bombing nor after Eric Rudolph was arrested for the Atlanta Olympics bombing. In the post-9/11 world, however, the feds are giving much less deference to civil liberties.
      The 16-hour interrogation of a hospitalized and presumably sedated teenager stretches the exception up to the limit if not beyond. U.S. Magistrate Judge Marianne Bowler, on the bench since 1990, must have concluded the limit had been reached when she decided to schedule a bedside court appearance on April 22 to inform Tsarnaev of the charges against him and of his rights in the proceedings.
      Bowler and the FBI have both declined to comment, but House Intelligence Committee Chairman Mike Rogers, a Michigan Republican and former FBI agent, said investigators were “not happy” with the judge’s decision. Perhaps not, and perhaps the agents needed time to gather safety-protecting intelligence. But incommunicado, lawyerless interrogation of suspects is a practice that was once thought to have been put behind us. Time will tell whether Tsarnaev’s case proves to be an exceptional exception or a precedent for further expanding it.

Breyer's Bicycle Accident Not His First

      Justice Stephen Breyer's bicycle accident [April 26] came 20 years after a more serious biking mishap that may have played a part in his failure to win an appointment to the Supreme Court when he was first considered for a vacancy in 1993. Here's my account from The Supreme Court Yearbook 1993-1994, the year that President Bill Clinton did choose him for the seat being vacated by Justice Harry A. Blackmun:

      Stephen Breyer had a bad year—at least a few bad days—in 1993. First came the bicycle accident. The longtime federal appellate judge, who regularly biked between his work at the U.S. courthouse in Boston and his home in adjacent Cambridge, was hit by a car as he was crossing Harvard Square. Breyer was hospitalized with a punctured lung and broken ribs.
      A week later, still in pain, Breyer left his hospital bed to go to Washington for a job interview—not just any job interview but a face-to-face meeting with the president of the United States about a vacancy on the Supreme Court. Breyer went into the session with President Bill Clinton on June 11 as the favored choice to succeed retiring justice Byron R. White. But somehow Breyer left Clinton cold. Aides later said the president found the former Harvard Law School professor detached and didactic.
      After the Friday afternoon meeting Breyer lay down on a couch in the White House counsel's office to rest. He was told to begin preparing an acceptance speech. But three days later, after a weekend of leaked stories that Breyer had failed to pay Social Security taxes on a household worker, Clinton settled on someone else for the Court: Ruth Bader Ginsburg, a judge on the federal appeals court in Washington, D.C.
      Ginsburg had won the president over with her life story of fighting and overcoming legal discrimination against women. Breyer's more conventional career paled by comparison. Passed over, Breyer returned to his judicial duties in Boston. In August he gamely came to Ginsburg's swearing-in ceremony.
      The episode was a rare setback for Breyer, and by all accounts he handled it well. When another Supreme Court seat opened up in April 1994, Breyer was naturally circumspect. When reporters asked him about his chances of succeeding the retiring justice Harry A. Blackmun, Breyer responded blandly. It was an honor to be considered, he said, and he had been considered before.
      Indeed, Breyer's chances started as slim. Clinton began with other candidates in mind: Senate Majority Leader George Mitchell, who had already announced his plans to leave the Senate at the end of the year; Interior Secretary Bruce Babbitt, who had been at the top of the short list a year earlier; and federal appeals court judge Richard Arnold, a respected jurist and a personal friend of Clinton's from his home state of Arkansas.
      One by one, however, the leading contenders fell by the wayside. Mitchell took himself out of consideration, saying he needed to devote full attention to his Senate duties, including shepherding the president's health care plan. Babbitt fell victim to sniping from some Republican senators— and to the likelihood of a more difficult confirmation battle over his successor at Interior. Arnold was crossed off the list because he suffered from lymphoma, a form of cancer, which Clinton feared might cut short his tenure on the Court.
      Finally, on May 13, after thirty-seven days of embarrassing public vacillation, Clinton turned to Breyer. “He was the one with the fewest problems,” White House counsel Lloyd Cutler told reporters in a background session afterward. Clinton announced his selection late Friday afternoon on the White House lawn to a press corps impatient after five days of rampant speculation. The announcement, just in time for the evening newscasts, averted another news cycle of criticism about the delay. Breyer was still in Boston. His formal presentation to the White House press corps had to wait until Monday.

Anthony Lewis's Passionate Voice for Justice

      Fifty years ago, the U.S. Supreme Court was something of a backwater beat. The regular press corps was so small — half a dozen newspaper and wire service reporters — that they sat between counsel table and the bench, able to stare straight up at the nine justices. Protocol was so relaxed that reporters could use typewriters to take notes.
      Things are much different today. The regular press corps is larger: about 30 people have “permanent” press credentials. The press gallery has been moved off to the side of the court’s bench, with some seats inside the courtroom, others in cubicles just outside, and obstructed-view hallway seats for an overflow crowd that can number more than 100 for arguments in a major case.
      Protocol and security are also tighter. Reporters can bring pen and paper only. In an era of ubiquitous cell phones and BlackBerrys, reporters are admonished strictly to leave all electronic devices in the downstairs press room.
      Beyond the visible differences in the arrangements for news media, the coverage of the Supreme Court also has changed dramatically. There is more coverage by more news organizations on more platforms: newspapers and magazines, radio and television, and the web. And the coverage is both more detailed and more insightful, with careful attention to making stories legally precise as well as fully accessible to general audiences.
      No single individual deserves more credit for this transformation than Anthony Lewis, who died last month (March 25) two days shy of his 86th birthday after an award-winning journalistic career that spanned six decades. Lewis held the Supreme Court beat for The New York Times for less than a decade, 1955-1964, but he established a new standard for coverage by which Supreme Court reporters have been judged ever since.
      The Times’s obituary, written by Adam Liptak, Lewis’s successor four-times-removed, aptly conveys the debt that readers and viewers of Supreme Court coverage today owe to Lewis. Before Lewis, Supreme Court coverage was apt to consist of “pedestrian recitations” of decisions with little by way of context or legal reasoning. The “thorough knowledge” of the court that Lewis gained during a year of study at Harvard Law School as a Nieman fellow changed that. Lewis’s articles, Liptak writes, “were virtual tutorials about currents in legal thinking, written with ease and sweep and an ability to render complex matters accessible.”
      Like countless others, this writer first read Lewis’s work — while a teenager — in Gideon’s Trumpet, Lewis’s masterful and celebratory account of the Supreme Court’s 1962 decision that required the government to provide lawyers to indigent defendants in criminal cases. By the time the book was published, in 1964, Lewis had already won his two Pulitzer prizes. The first, in 1955, was for stories helping to clear a Navy employee wrongly accused of disloyalty during the McCarthy era. The second, in 1963, was for his coverage of the Supreme Court, especially of its epochal decisions on reapportionment and redistricting.
      Lewis left the Supreme Court beat in 1964, but he did not leave behind his knowledge of law or his passion for justice. After a few years in the London bureau, Lewis started a 32-year career in 1969 as a Times columnist under the rotating titles “At Home Abroad” or “Abroad at Home.”
      Whether writing about events in the United States or in foreign countries, Lewis constantly returned to stories of people who had been wronged by misuse of law or cast aside by virtue of its neglect. In a tribute in The New York Review (May 9), Georgetown law professor and immigrant rights’ advocate David Cole recalled Lewis’s recurrent columns on the harsh strictures of immigration law and immigration court decisions.
      The tributes to Lewis that began with his death continued in Washington last week [April 18] as the Constitution Project bestowed on him and three others its constitutional champions award for their work on Gideon and its legacy. Accepting the award on his behalf, his widow, Margaret Marshall, the former chief justice of the Massachusetts Supreme Judicial Court, recalled Lewis’s devotion to the U.S. Constitution.
      “Tony loved the Constitution of the United States,” Marshall said. “He lived the Constitution. He taught the Constitution. He believed in the Constitution. He wrote about the Constitution over and over and over and over.” In Lewis’s view, Marshall continued, the greatness of the United States — what conservatives might call “American exceptionalism” — “lies in our willingness to accept the Constitution, as interpreted by judges, as law.”
      Lewis retired the column on December 15, 2001. With the 9/11 attacks fresh in mind, Lewis reaffirmed his belief in the rule of law. “Without the foundation of law, this vast country could never have survived as one, could never have absorbed streams of immigrants from myriad cultures,” Lewis wrote. “With one terrible exception, the Civil War, law and the Constitution have kept America whole and free.”
      Lewis cautioned, however, that the rule of law is not self-executing. “Freedom under law is hard work,” he concluded. “If rulers cannot be trusted with arbitrary power, it is up to citizens to raise their voices at injustice.” Lewis raised his voice at injustice, eloquently and passionately, over more than half a century of turbulent times at home and abroad. His voice is now silenced, but his legacy lives on in the work of those — like myself — whom he educated and inspired.

At Milestone Anniversary, Gideon's Promise Is Unrealized

      Clarence Earl Gideon revolutionized the criminal justice system with a handwritten petition to the U.S. Supreme Court complaining about the state’s refusal to appoint a lawyer for him when he was tried and convicted in Florida in 1961 of breaking into a pool room. Gideon’s victory did not end, however, with the Supreme Court’s decision on March 18, 1963, requiring the government to provide public defenders for indigent defendants in felony cases. Gideon himself benefited from the decision in a retrial five months later when, represented this time by a lawyer, he was found not guilty.
      The 50th anniversary of the court’s unanimous decision in Gideon v. Wainwright is a fitting time both for celebration and for rededication to making the promise of Gideon reality. The Sixth Amendment right to counsel that Gideon and later cases safeguards exists in far too many cases only on paper, not in reality. Public defenders — overworked, underpaid, underresourced — give far too many defendants only the semblance of legal representation in a criminal justice system where the prosecution still has most of the cards.
      That is the central message of a 24-page report released last week [April 9] by the Brennan Center for Justice that describes the promise of Gideon as “unrealized.” Brennan Center attorneys Thomas Giovanni and Roopa Patel aptly depict Gideon as an “unfunded mandate” — a directive from the Supreme Court that state and local governments fail to adequately fund.
      The need for legal representation for the poor is if anything greater than it was in Gideon’s day. A half-century of tough-on-crime legislation has made the United States a global leader in incarceration. U.S. prisons held about 217,000 people in 1963; the prison population has increased since then more than tenfold to 2.3 million. “We live in an era of mass incarceration,” Giovanni and Patel write.
      The unwinnable war on drugs is one of the major reasons why U.S. prisons are filled to capacity and beyond. Almost half the people in federal prisons are there for drug offenses, but only a small fraction of those are serving time for serious drug trafficking. In state prisons, nearly half of the inmates are behind bars for nonviolent offenses, including a fair share of drug-related convictions.
      Tough sentencing laws give federal and state prosecutors more leverage in plea bargaining than they had a half century ago. Prosecutors who charge to the max hold draconian sentences over a defendant’s head in plea negotiations. Any number of defendants risk a decade or more in prison if they turn down a plea offer and insist on going to trial.
      Against the well-armed prosecutor, indigent defendants typically have a public defender with far too many cases to give any of them the attention they deserve. As Giovanni and Patel note, the American Bar Association recommends that public defenders carry a caseload of 150 felonies or 400 misdemeanors per year. The average public defender’s load is considerably higher. In New Orleans, for example, defenders handled on average 19,000 cases in 2009 — seven minutes per case.
      For many indigent defendants, this is assembly-line injustice. In the mine-run of cases, public defenders have little to review the evidence or conduct an investigation — indeed, they have barely enough time to interview their clients.
      Federal public defenders are on average better qualified and better resourced than their state and local counterparts. But the current budget sequestration is having some impact. The federal defenders representing Suleiman Abu Ghaith, Osama bin Laden’s son-in-law and alleged al Qaida spokesman, in his conspiracy trial in federal court in New York City have asked that the case be delayed until January because of the five-week furlough imposed on the office to absorb the budget cut.
      The federal government does offer grants to supplement state and local spending on public defenders under the 20-year-old Justice Assistance Grant program. States have discretion on how to allocate the money: $287 million in 2012. Most of the money — 60 percent in 2012 — went to law enforcement. Combined, prosecutor and defenders offices got less than $16 million, and prosecutors got the lion’s share: $13.8 million versus only $1.9 million for defenders. Giovanni and Patel note that many defender offices are unaware they can apply for grants under the program.
      The Brennan Center report offers three “common sense reforms” to improve the country’s system of public defense. One step is to reduce the number of defendants put into the assembly line by reclassifying many petty offenses into non-jailable civil infractions or legalizing the conduct altogether.
      The two other steps focus directly on defender offices. The report naturally calls for more funding not only from the usual sources — state and local budgets and federal grants — but also from “unlikely sources,” such as the private bar. The report suggests that more law firms follow example of some in Atlanta and New York City of sending associates to externships in public service organizations, including defender offices. The report also specifically calls for more funding for training public defenders and for hiring social workers for defender offices.
      Political, fiscal, and financial realities militate against all these recommendations. Law-and-order sentiment remains strong; governments at all levels are financially strapped; and private law firms are themselves financially pinched. But the Supreme Court’s historic step in Gideon deserves better today than to be honored more in the breach than in the observance.

Hunger Strike Underscores Malign Neglect at Guantanamo

      Eleven years later and counting, the Guantanamo prison camp remains a festering sore for the United States, a failure in its own terms as counterterrorism policy and a stain on the United States’ human rights reputation abroad.
      Four years after President Obama’s bold promise to close the prison camp within a year, it still houses 166 detainees. Most of them — 86 to be precise — have been cleared for release to their home or a third country. But they remain in limbo thanks to a policy of malign neglect that Congress has enacted and the Obama administration has failed to resist.
      Now, the prisoners themselves are demanding attention in the only means available to them: a hunger strike. Guantanamo officials say about 40 of the men are refusing food and 11 are being force-fed. David Remes, an attorney representing 15 detainees, says he has been told the number is much larger: most or virtually all of the 130 prisoners in Guantanamo’s Camp 6, the largest facility. The Center for Constitutional Rights (CCR), the New York-based public interest law firm that helps provide representation for the prisoners, says the protest amounts to “a grave crisis.”
      The immediate provocation for the hunger strike appears to have been the resumption in February of a policy of searching prisoners’ Qurans for possible contraband. Military spokesmen say the guards use protective gloves in the searches, but the Muslim prisoners consider them a desecration of their holy book.
      More to the point, the need for the searches is disputed. In a letter to CCR written last week [April 1], William Lietzau, deputy assistant secretary of defense for rule of law and detainee policy, claimed that “improvised weapons” and “unauthorized food and medicine” have been found hidden in prisoners’ Qurans. But Carol Rosenberg, the Miami Herald reporter who has been the most persistent journalist watchdog on Guantanamo, has been asking the Pentagon since mid-March for details, including photographs of any seized items, but no information has been provided.
      The military “has yet to substantiate” the claim, Rosenberg wrote in her April 5 story. Remes scoffs at the allegations, noting that observant Muslims would consider it a sacrilege to hide items inside a copy of the Koran. Nevertheless, Lietzau said in his letter that it is “imperative” that the policy continue.
      As serious as the Quran search issue may be, the hunger strike has now broadened into an anguished cry in protest of what is now more than a decade of legal limbo for the prisoners. The strike, Remes says, has become “a protest against the fact that they’re being held indefinitely, without charge, and with no end in sight.”
      Reports of the hunger strike prompted the United Nations’ chief human rights official to renew her call for closing the prison camp. The prolonged detention of the prisoners “raises serious concerns under international law,” Navi Pillay, the U.N.’s high commissioner for human rights wrote in a statement late last week. The failure to close the camp also “weakens [the United States’] position when addressing human rights violations elsewhere,” she added.
      The international criticism might be a sensible cost for a superpower to bear if the policy advanced U.S. purposes, but it does not, as well documented in a thoroughly reported critical examination of Guantanamo policies by Wall Street Journal reporter Jess Bravin. In his book The Terror Courts, Bravin recalls the fateful decisions by the Bush administration to stash supposed “enemy combatants” at Guantanamo, they thought beyond the reach of federal courts, and then create from scratch a brand-new system of military commissions to try the detainees. “The legal equivalent of a war of choice,” Bravin calls it.
      The decision to bypass either the established military court system or civilian courts did not solve, it caused, problems. In three successive decisions, the Supreme Court rebuffed the Bush administration’s attempt to shield the military commissions from judicial review. On top of those delays, the commissions themselves were forced, in effect, to re-invent the wheel — and the personnel selected for the jobs did not acquit themselves well.
      Bush and Congress responded to one of the Supreme Court’s decision, in 2006, with a law trying to fix some of the problems. When Obama took office, with a Democratic-controlled Congress, he tried to revamp the system further. But Obama bowed to restrictions voted by Congress that bar bringing Guantanamo prisoners to the mainland for trial and make transfers out exceedingly difficult.
      A decade out, the commissions have adjudicated only a few cases, with paltry penalties, while federal courts have tried and convicted dozens, often with long sentences. The current trial of the 9/11 conspiracy case at Guantanamo drags on, prolonged by antics from the defendants that a federal judge would have long since stopped. Despite reforms and reassurances from the newly appointed chief prosecutor, Bravin is unsatisfied. “The question remains,” he writes in conclusion, “whether [the commissions] can be done right at all.”
      The hunger-striking detainees ask the same question about the whole Guantanamo system. “The men are at their wit’s end,” Remes says. “They say to me and other defense counsel, ‘Look, we’re going to get out of here one way or the other. We’re either going to be released or we’re going to go out in a box.’ You have that level of desperation.”

Gay Marriage Supporters Score TKOs at Supreme Court

      When Jack Baker and Michael McConnell went to court in 1971 to try to be married, justices of the Minnesota and the U.S. supreme courts gave them hardly the time of day. The Minnesota justices had no questions for the couple’s lawyer; one of the justices turned his chair around to show his scorn for their case. At the U.S. Supreme Court, the justices turned the case away without a hearing “for want of a substantial federal question.”
      Four decades later, the tables have turned. Courts, politicians, and the American public appear ready to accept, and in some quarters embrace, marriage equality for gay men and lesbians. Opponents, on the other hand, are having more and more trouble being taken seriously with their attenuated arguments against legal recognition for same-sex couples.
      In advance of last week’s Supreme Court arguments in the pair of gay marriage-related cases, the Washington Post editorially dismissed the arguments against gay marriage as “beyond farfetched.” In the courtroom itself, the attorney defending California’s gay-marriage ban, Proposition 8, had his back against the wall from the get-go. The next day, the lawyer defending the federal Defense of Marriage Act (DOMA) abandoned all the substantive arguments against same-sex marriage and defended the law only on civics textbooks rationales: uniformity and judicial restraint.
      In the Prop 8 case, Hollingsworth v. Perry, conservative inside-the-beltway lawyer Charles Cooper got his comeuppance early when Justice Sonia Sotomayor asked him whether he could specify any circumstance of rational anti-gay discrimination other than marriage. “I cannot,” Cooper conceded, blowing a hole in the arguments for keeping gay teachers out of the classroom or gay history out of public school curricula.
      Cooper had no good answer moments later when Justice Elena Kagan asked him to specify what harm would result to the institution of marriage or to opposite-sex couples from legal recognition of same-sex marriages. Cooper initially tried to avoid the question, but when pressed by Justice Anthony M. Kennedy to answer he could say only that it was “impossible” to foretell the consequences.
      Kagan cornered Cooper again when he contended that it was sensible to reserve marriage for opposite-sex couples to further procreation. When Kagan asked why 55-year-old couples should be allowed to marry at all, Cooper was stuck suggesting that women of that age might still bear children.
      From the conservative side of the bench, Justice Antonin Scalia raised the specter of children harmed by being raised in same-sex households. Sociologists disagree on the subject, Scalia said. But, as Washington Post blogger Ezra Klein pointed out, Scalia either had not read or ignored the brief from the American Sociological Association stating that children raised in same-sex households fare just as well as those in opposite-sex families.
      In the DOMA case, United States v. Windsor, Paul Clement, the former U.S. solicitor general that House Republicans chose to defend the law, signed a brief that incorporated the procreation and harm-to-children arguments against same-sex marriage. But he uttered not a word about those arguments in his half hour before the justices.
      Instead, Clement argued that Congress acted to maintain a uniform national definition of marriage and to allow the issue to be decided in the political process. Sotomayor punched a hole in the uniformity argument. “You are treating the married couples differently,” Sotomayor said, contrasting New York — which recognizes same-sex marriage — with Nebraska, which does not.
      Kagan later confronted Clement with the reason that Congress in fact cited for passing DOMA: “to express moral disapproval of homosexuality,” as the House committee report put it. Clement ran as fast as he could from the language. “If that’s enough to invalidate the statute, then you should invalidate the statute,” he said.
      With both cases argued, Supreme Court watchers were all but unanimous in scoring both sessions as TKOs for the gay marriage proponents. Even so, handicappers were not predicting decisive victories for marriage equality in either case. In the Prop 8 case, the dream team lawyers Theodore Olson and David Boies urged the justices to constitutionalize marriage rights for gays and lesbians nationwide. There were no takers. The justices indeed seemed to shy away from a ruling at all; the appeal could be dismissed on procedural grounds. With Prop 8 struck down by lower courts, gay marriage would return in California, but with no fingerprints from the justices.
      As for DOMA, the liberal bloc plus Kennedy seem likely to rule it unconstitutional. But Kennedy might join solely on federalism grounds, leaving the broader question of extending equal protection rights to gays and lesbians for another day.
      For his part, Chief Justice John G. Roberts Jr. seems content to leave gays and lesbians to the political process. “Political figures are falling over each other to endorse your side of the case,” Roberts told attorney Roberta Kaplan as she ended her argument against DOMA. Gay men and lesbians in the 41 states that do not allow same-sex marriage might well disagree — and have less patience than the happily married chief justice. But Roberts appears correct in sensing the future course of events.

Majority of Justices Skeptical of DOMA

      A majority of Supreme Court justices appeared ready on Wednesday, barring a jurisdictional hurdle, to strike down the federal Defense of Marriage Act (DOMA) provision that bars federal benefits to legally married same-sex couples.
      Four liberal justices all indicated likely agreement with the Obama administration’s position that the law amounts to unconstitutional discrimination against same-sex couples. Justice Anthony M. Kennedy, who often holds the balance of power between the court’s conservative and liberal blocs, signaled his concern that the law intrudes on the states’ traditional prerogatives to define marriage.
      “You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody,” Kennedy said to Paul Clement, a former U.S. solicitor general retained by House Republicans to defend the law. Kennedy said the law meant the federal government was “intertwined” with people’s daily lives.
      Earlier, Clement had faced a sharp question from the court’s senior liberal, Ruth Bader Ginsburg, who listed some of the federal benefits unavailable to married same-sex couples under the 1996 law. “For the federal government to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave,” Ginsburg said, “one might well ask, what kind of marriage is this?” Later, Ginsburg said the law created two kinds of unions: “full marriage and then this sort of skim-milk marriage.”
      The exchanges over DOMA’s impact came only after a preliminary 50-minute round of arguments over whether the issue was properly before the court at all given the Obama administration’s refusal to defend the law. President Obama decided in February 2011 to stop defending the law in court but to continue enforcing it. In the case before the court, United States v. Windsor, a lesbian New York City widow, Edith Windsor, won two lower court decisions entitling her to a refund of $363,000 she paid in federal estate taxes; the survivor of an opposite-sex marriage inherits his or her spouse’s estate tax-free.
      The court appointed Vicki Jackson, a Harvard law professor, to argue that it had no jurisdiction over the case because the government agreed with Windsor that the law was unconstitutional. Jackson was also asked to argue that the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) had no standing to come into the case to defend the law.
      Both Chief Justice John G. Roberts Jr. and fellow conservative Justice Antonin Scalia used the jurisdictional argument to tweak Obama and his administration for its stance in the case. “I don’t see why he doesn’t have the courage of his convictions,” Roberts said of Obama’s decision to continue enforcing the law while attacking it in court. Scalia said the administration was disregarding the executive branch’s customary obligation to defend laws in court. “If we’re in this new world,” Scalia said, “I don’t want these cases to come before this court all the time.”
      Representing the administration, deputy solicitor general Sri Srinivasan defended Obama’s decision. “The president made an accountable legal determination that this act of Congress was unconstitutional,” he said. In his turn, Clement insisted that there was “nothing objectionable” in allowing the House to appear in court to defend the law after the administration’s shift.
      Turning to the merits, Clement began by depicting the legal issue on DOMA as “quite narrow” despite the “deeply held” views pro and con on gay marriage. “Basic principles of federalism” allows the federal government to define marriage “solely for purposes of federal law,” Clement said.
      Repeatedly during his half-hour presentation, Clement stressed the need for “uniformity” in federal law. He made no reference to substantive arguments made in his brief for discouraging same-sex marriage, such as channeling procreation and child-rearing into opposite-sex marriages.
      Liberals Sotomayor and Stephen G. Breyer both questioned the uniformity supposedly advanced by DOMA. “You are saying New York’s married couples are different than Nebraska’s,” Sotomayor said. New York is one of nine states along with the District of Columbia that license same-sex marriages.
      Fellow liberal Elena Kagan also criticized the uniformity argument but then quoted from the House committee report on DOMA, saying the bill was enacted “to express moral disapproval of homosexuality.” Clement disavowed the purpose. “The House Report says some things that we are not, we've never invoked in trying to defend the statute,” Clement said.
      Solicitor General Donald Verrilli, representing the administration, and New York City attorney Roberta Kaplan, representing Windsor, forcefully denounced DOMA as discriminating against gays and lesbians. “What section 3 does is exclude from an array of federal benefits lawfully married couples,” Verrilli said. Later, Verrilli rejected Clement’s arguments that DOMA was enacted “for any purpose of uniformity, administration, caution, pausing, any of that.”
      In her turn, Kaplan said that “many thousands” of legally married couples are being treated as unmarried by the federal government “solely because they are gay.” But she faced questions from Roberts and Scalia aimed at leaving the issue s to the political process. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.
      Kaplan saw the history of the issue differently. “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” she said.
        If the court followed its usual procedure, the justices spent Wednesday afternoon in private conference considering the gay-marriage case argued on Tuesday: the constitutional challenge to California’s Proposition 8, Hollingsworth v. Perry. They will conference on the DOMA case on Friday. Decisions in both cases are due by the end of June, and probably not sooner.