If Supreme Court justices are really concerned about standing, make Paul Clement give back the BLAG-pilfered millions or make "Sunny John" Boehner pay it all back

The New York Times's Marcus Mabry talks to reporter John Schwartz about the Supreme Court's consecutive days of hearings on marriage-equality issues -- California's Prop 8 yesterday, DOMA today.

by Ken

Court-watchers stress that we mustn't make assumptions about Supreme Court justices' ultimate decisions from the questions they ask during oral arguments. But nobody seems to question that:

(1) Yesterday the justices showed reluctance to take bold action in the appeal to save California's homo-hating Prop 8. What some of of those court-watchers conveniently forget is that the Roberts Court is far from constitutionally averse to bold action. In fact, the five right-wing bozos like nothing better than being able to strike landmark blows, as long as they're in the direction of furthering crackpot right-wing ideology or deep-pocketed corporatist interests.

When it comes to protecting the rights of unempowered citizens, well, then they're free to wallow to their hearts' content in their deep concern for not racing ahead of the country's delicate sensibilities. Like the delicate sensibility in favor of the sacred constitutional rights of corporations, or the delicate sensibility against tampering with the right to spend money on the pretense that it's "speech."

Kind of forgotten in the crush, seemingly by the justices as well as the commentators, is that in the Ninth Circuit ruling being appealed, the appeals court didn't strike Prop 8 down on U.S. constitutional grounds, but on the narrow state constitutional ground that rights that existed as a matter of law were taken away without any tenable justification. All the Supremes have to do is say, "Um, what they said."

(2) Today, in considering the challenges to Section 3 of DOMA, with its hard-to-deny discrimination against same-sex couples, the four moderate justices (as usual referred to incorrectly as "liberal" justices, though there isn't a liberal among them) predictably showed  concern for the "equal protection" of the conspicuously trampled-on rights of citizens in same-sex relationships. The news was that the man everyone was waiting to hear from, swingman "Slow Anthony" Kennedy, seemed sort of willing to possibly tilt in their direction.

Except that the Slowman doesn't really appear to be on the same page as the moderates. He doesn't seem much concerned about those trampled-on rights. What's got Slow Anthony in a tizzy seems to be DOMA's imposition of a single standard on (gasp) all 50 states! Because when has the federal government ever done that?

Well, nobody ever said the sailing would always be smooth when you have a halfwit functioning as the swing vote on the High Court. (It seems only fair to point out that that still leaves Slow A half a wit ahead of the cartoon blockheads of the Court's hard-core Right.)

WHAT'S ALL THIS ABOUT STANDING?

All accounts of the two days' hearings have noted the extensive consideration reflected in the justices' questioning of the issue of standing, not just in the Prop 8 case, where it has already been a much-discussed issue as to whether the right-wing loonies who pushed for the amendment's passage originally ever had standing to appeal the District Court ruling following the decision of California's governor and attorney general not to do so.

If the justices were to decide that the Proppers, might that mean that the Ninth Circuit's cautious ruling goes out the window (since after all there wouldn't have been a valid appeal) and the more clear-cut District Court ruling is reinstated? Practically speaking, it's a distinction without that much of a difference, since there would be no question of a District Court's ruling having any standing outside California.

The justices' interest in standing on the defense of DOMA was more surprising, and raises more questions. The issue is whether the House's laughably named Bipartisan Legal Advisory Group (BLAG) had standing to rush into the breach when, again, the appropriate agency of government, in this case the Dept. of Justice, made it clear that it wouldn't defend this law that it considered unconstitutional.

I'm sure we'll hear much parsing of the ins and outs of this standing issue in the months between now and the announcement of the Court's ruling(s) in these cases. So let me just press my case for an outcome.

Since BLAG functions with votes of the House speaker and the majority and minority leaders and whips, it's hard to imagine the circumstances in which the the speaker and the majority leader and majority whip weren't an indissoluble bloc. And so in practice BLAG fucntions as a way of making a pretend-bipartisan decision out of the will of the majority party.

Dare we hope that the Court will recognize that the BLAG-gers not only didn't have standing but in fact were being very naughty in their siphoning off of millions of taxpayer dollars to press their personal ideological crusade? And surely it would follow from that the Court might apply one of two remedies:

(1) Make far-right-wing superlawyer Paul Clement, who has been the beneficiary of those pilfered mllions, even though in earning that money his legal briefs have been so preposterously ineffectual that he has appeared more like a legal superninny, give back all the swag.

(2) Or, failing that, make the House GOP con-squad headed by "Sunny John" Boehner, repay the loot to the Treasury.

Either way works for me. Of course we know how timid this Court is about taking sweeping bold actions.

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