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The Chief Justice offered these remarks (my best efforts at transcribing) at the 4th Circuit judicial conference, in response to a question from Judge Wilkinson on the aggressive questioning from the Nine.

We don’t talk about the cases before the argument. When we get out on the bench, this is the first time we get clues about what our colleagues think. We use questions as a way to bring out points that our colleagues ought to know about. We do tend to debate each other through counsel. That’s an explanation.

We do overdo it. The bench has gotten more and more aggressive Recent appointees tended to be more active in questioning than the Justices they replaced. There is nothing bad about that. It’s just the fact.

I have had to act as an umpire in terms of the competition among my colleagues to get a question out. They are not being rude. But you don’t always pick up with the acoustics that a colleague on the other end of a bench has asked a question. I do think we have gone too far. We talk about it a little bit. We try to make sure we don’t prevent a lawyer from reserving argument time for rebuttal by asking questions time when trying to sit down. It is too much. I think we do need to address it. The lawyers feel cheated. It’s nice to get a feel where everyone else is.

I’m sure I’m as guilty as most from time to time. Going out on the bench, I said, look let’s not interrupt when the white light is one, and I Found myself asking questions when the white light was on.

I can’t help but think the Chief is referring to Justice Sotomayor, who is definitely more aggressive than Justice Souter (I’ve commented on the Chief playing umpire with Sotomayor here).

In the Times, Adam Liptak wrote:

Adam Liptak compared Sotomayor to her predecessor: “Where Justice David H. Souter would deploy a single finely constructed query, Justice Sotomayor is apt to barrage advocates with a series of insistent questions.”

Joan Biskupic made a similar observation.

Joan Biskupic noted that “Sotomayor asks more questions than any new justice in recent years and more than many veterans.”

I’m actually working on an article that analyzes interruptions on the Supreme Court bench. I have some data about this, which I’ll publish later.

I just bought one of these awesome t-shirts. They even got the neck doily right!

Courtesy of the bad-ass Notorious RBG tumblr.

This discussion from Michael Dorf is consistent with my previous post that in the last 20 years or so, the Court has ceased to bother with terms like fundamental rights, but focused on adjusting the levels of burden for the plaintiff, or government, depending on the nature of the right:

If you believe that the Congress that enacted DOMA was concerned about choice-of-law issues, then I have a bridge I’d like to sell you.  Now Justice Scalia says this shouldn’t matter.  Under traditional rational basis scrutiny, it doesn’t matter what the actual motive of the legislature was; so long as we can imagine a rational basis for the law, it’s constitutional.  And he’s right about that.

Justice Scalia is therefore also right–IMHO–that there is much to regret about the fact that in Romer, Lawrence and now Windsor, the Court has failed to specify the level of scrutiny it is applying as a matter of equal protection doctrine (in Romer and Windsor) or substantive due process doctrine (in Lawrence).  Putting aside the substantive due process issue, it would seem much more straightforward for the Court simply to say that laws drawing distinctions based on sexual orientation are subject to heightened scrutiny, either because sexual orientation distinctions simply are sex distinctions (and sex distinctions are already subject to heightened scrutiny) or because LGBT persons have been subject to a history of discrimination that continues to this day (albeit to a lesser extent than in the past).

If the Court were to rule that sexual orientation is a suspect or semi-suspect classification, then Justice Scalia’s point would evaporate, because under heightened scrutiny, actual legislative motive does matter.  (See, e.g., Village of Arlington Heights v. MHDC).

Why is the Court unwilling to say whether sexual orientation discrimination triggers heightened scrutiny?  So far as I can tell, at some point in the 1980s, the Justices simply decided that they were done recognizing “new” suspect classifications and fundamental rights.  The result has been considerable confusion in the case law.  As a con law teacher, I have a difficult time explaining to my students how to integrate cases like Romer,Lawrence and non-gay-rights cases that apply “covert” heightened scrutiny into their outlines.

Less than two hours after the 9th Circuit lifted the stay in Hollingsworth  v. Perry (seemingly sua sponte, but whatever it’s the 9th Circuit), California AG Kamala Harris officiated at the wedding of Kristin M. Perry and Sandra B. Stier, the eponymous plaintiffs in the Prop 8 case. Mazal tov!

The Times has a harrowing account of the 9/11 museum at Ground Zero. This quotation at the end of the article really struck me.

“One hundred years from now, no one will be alive who remembers 9/11,” Mr. Davis said. “The story has to tell itself.”

On September 11, 2011, I was 17 years old (my birthday is August 13). While I hope to be alive in 100 years (and due to advances in nanotechnology, that is possible), I realize that I am probably going to be among the last generation alive, who was old enough to appreciate first-hand what happened in New York City on 9/11. I remember seeing the plumes of smoke billowing from the ground. I remember smelling ash in the air the morning after. I remember the tears of my friends who realized their loved ones were trapped, and could do nothing. I remember panicking whenever I saw an airplane low in the sky (this went on for weeks). It was surreal. But, they are only memories.

I have recorded my account for posterity here (and reposted it every year), but in a century, all we will have are recorded accounts.

This is inevitable. There are very few WW I veterans with us (Update: They are all gone. The last one died in 2012). The numbers of WW II veterans, and Holocaust survivors are dwindling.

I visited Ground Zero last year for the first time, and it was a very emotional experience, even 11 years removed (my account is here). My father worked across the street from the World Trade Center (he was not at his office on 9/11), and I had visited there countless times. It is still difficult for me to conceptualize that those buildings aren’t there, even though I know so well what happened. From the Staten Island ferry, the view of the Skyline, something I had seen hundreds of times, still seems incomplete.

I will visit the new Ground Zero museum, but it will be a very tough experience.