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This paragraph just about sums up the entire 9-0 opinion per Justice Alito:

The factors that justify absolute immunity for trialwitnesses apply with equal force to grand jury witnesses.In both contexts, a witness’ fear of retaliatory litigationmay deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony. In Briscoe, the Court concluded that the possibility of civil liability wasnot needed to deter false testimony at trial because othersanctions—chiefly prosecution for perjury—provided a sufficient deterrent. Id., at 342. Since perjury before agrand jury, like perjury at trial, is a serious criminaloffense, see, e.g., 18 U. S. C. §1623(a), there is no reason to think that this deterrent is any less effective in preventingfalse grand jury testimony

And Alito goes all historical to explain why “complaining witnesses” can be liable under 1983, but not for testifying before Grand Jury:

is true that a mid-19th century complaining witness might testify, either before a grand jury or at trial. But testifying was not a necessary characteristic of a “complaining witness.” See M. Newell, Malicious Prosecution 368 (1892). Nor have we been presented with evidence that witnesses who did no more than testify before a grand jury were regarded as complaining witnesses and weresuccessfully sued for malicious prosecution. See Tr. of Oral Arg. 14–15, 24–25.
In sum, testifying, whether before a grand jury or attrial, was not the distinctive function performed by a complaining witness. It is clear—and petitioner does notcontend otherwise—that a complaining witness cannotbe held liable for perjurious trial testimony. Briscoe, 460 U. S., at 326. And there is no more reason why a complaining witness should be subject to liability for testi- mony before a grand jury.

Oh that pesky Roberts Court closing the courtroom doors to civil rights litigation! These contentious 9-0 opinions really shake the public’s opinion in the rule of law.

I hope the Conspirators are not succumbing to fatal Hubris. Remember, the case aint over till it’s over. Votes change when opinions are circulated. Things shift around.

“If you are a frequent attendee at the court, and you study the issues, and you know the justices’ jurisprudence, you can know an awful lot from what happens at oral argument,” said Todd Gaziano, director of the Heritage Foundation’s Center for Legal and Judicial Studies.

Like many observers of the three-day oral arguments, Gaziano came away convinced the court is leaning toward striking down some or all of the law. The overwhelming consensus left White House officials insisting afterward that the arguments defy interpretation.

“Anybody who believes that you can try to predict the outcome of a Supreme Court case based solely on the questions of the justices is not a very good student of the Supreme Court,” White House spokesman Josh Earnest insisted this week.

A University of North Carolina political scientist and her colleagues, for instance, examined 8 million words spoken by justices over 30 years to conclude last year that “when the justices focus more unpleasant language toward one attorney, the side he represents is more likely to lose.”

Experienced advocates and close court observers, too, can likewise piece together reasonable predictions from a combination of questions asked, tone, prior rulings and the courtroom equivalent of body language.

“You can’t know anything for certain from the oral arguments,” Wisconsin Attorney General J.B. Van Hollen said in an interview, “but they can give you a feeling. They’re a predictor, but a cautious predictor.”

Sarah A. Treul, a University of North Carolina political scientist, joined three other scholars in studying the transcripts of nearly 3,000 Supreme Court cases argued between 1979 and 2008. In a study published last year, the researchers concluded that words matter.

“While justices gather information and seek answers that will help them decide close to their preferred outcome, they do so in a way that provides emotional clues as to how they may act when they ?nally vote on the merits,” the researchers wrote in The Journal of Politics.

“We can predict just over 70 percent of votes and cases” based on oral argument questions, said Timothy Johnson, one of the researchers on the paper and a University of Minnesota political scientist. [JB: Really?]

Chief Justice John Roberts Jr., too, has identified at least some connection between oral argument questions and final results.

In a 2005 study, Roberts examined 28 cases heard by the Supreme Court. He subsequently reported in the Journal of Supreme Court History that 86 percent of the time, the side receiving more questions from justices ultimately lost the case.

The RNC distorting the audio of his (abysmal) oral argument to make (what I think) is an unintentionally effective point–the government could not articulate well what the limiting principle on their own argument is.

Or, several leading liberal scholars openly second-guessing Verrilli, and offering pieces offering “what the SG should have really did.”

Tom Goldstein is quite upset that the RNC put out this video:

I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court.  It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it.  I would be shocked if a serious conservative lawyer would stand by the ad.

This is politics. This case is political. The outcome of this case will affect the next election (either way). Is it wrong for a political party to take advantage of this?  I mean, after arguments, the White House put out a statement saying they approve of Verilli’s job. The SG is a political figure, who is confirmed by the Senate, even if he is a lawyer, and a member of the Supreme Court bar. Usually though, most people have no clue or care about the SG. Here it matters.

To keep it balanced, what flak has Paul Clement taken because of his decision to represent the House Republicans in the challenge to DOMA? I don’t recall a defense of this type, or any (my memory my fail me) from Goldstein. I suppose the attacks can be distinguished–those on Clement are substantive (he shouldn’t defend a cause). Those on Verilli are procedural (he couldn’t defend it).

But here is what I think is really quite insulting. Law Profs writing about what the SG should have done

Mind you, these posts are not coming from political hacks like those at the RNC (whose job is to make political hay out of the most minor insignificant flaps), but from prominent constitutional law professors.

Akhil Amar. Jeff Rosen. Jack Balkin. Neil Siegel. Etc.

How patronizing and humiliating must that be for the SG? Can you imagine what Verrilli must be thinking. All these Monday morning quarterbacks. If the SG was a head coach who blew a key game, he would be on the hot seat. I could imagine what the New York Post would have written in such a case–“Stumbled out of the Blocks.”

Now, the issue of *why* the SG did not have good answers prepared to these questions is perplexing. Perhaps the inability to answer the question is a testament to the fact that the challenger’s legal strategy. I mean Verrilli is a veteran SCOTUS advocate. He has probably had so many moots. He had every advantage in the world. So what happened?

 

You know, it is always too easy for lawyers to be glib about procedural defaults that are based on really stupid, technical rules, that would be difficult for a layman to know.

Well, I submitted a FOIA request for mug shot from the Bureau of Prisons about three weeks ago. The letter was three pages long, and was replete with citations to case law, and included some original legal arguments as to why prisoners who had their convictions reversed by SCOTUS should also be released. I spent some time working on it, and had a few Harlan colleagues edit and revise it.

Today I got a letter back from DOJ. This member of the Virginia Bar and Magna Cume Laud law school grad forgot to sign the letter. They returned my request as Incomplete. I just mailed it back, with my signature affixed.

Fortunately, there was no time limitation, but my request–had there been one–would have been time barred.