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Michael Dorf has a great post exploring the recent NJ Trial Court Decision that, in effect, forces NJ to offer same-sex marriages, and not just same-sex civil unions. I blogged about it last week.

At the end, Michael gives the NJ Supreme Court the silver bullet that will make their judgment unreviewable:

Going forward, the lesson of the foregoing analysis for the NJ intermediate appellate and Supreme courts should be clear: To make the ruling bullet-proof, be crystal clear in any opinion affirming the basic ruling of the trial court that the factual assessment of what the federal agencies are doing is an entirely sufficient basis for the conclusion that civil unions no longer satisfy Lewis.  Here is the language I would include at the end of any NJ Supreme Court opinion that ends up affirming the trial court ruling:

In summary, we hold that regardless of whether Windsor is best read to treat state civil unions as “marriages” for purposes of federal law, it is an undisputed fact that many federal agencies have already concluded that civil unions will not be treated as marriages for purposes of federal law.  In light of that fact, the State of New Jersey no longer satisfies its state constitutional obligation of equal protection under Lewis by affording same-sex couples the right to enter civil unions.  Only “marriage” now satisfies that obligation.

You’re welcome, New Jersey.

Let’s check back in a year or so, and see how the Jersey Supreme Court handles this issue.

Solicitor General Donald Verrilli often takes many hits with his performance, but Ken Jost explains that in the end, Verrilli is a good closer.

 For the past two Supreme Court terms, the justices waited until their last day to issue rulings in the year’s most closely watched cases: the challenges to the Affordable Care Act last year and the Defense of Marriage Act (DOMA) this year. In both cases, Solicitor General Donald Verrilli personally argued for the government, and in both cases the court ruled for the government — admittedly, by one-vote margins in both.

With a record like that, one would expect Verrilli to be hailed as the Mariano Rivera of Supreme Court advocacy: he closes well in the most important contests. But instead Verrilli has been getting bad notices in the world of Supreme Court watchers.

…

Despite any shortcomings at the lectern, Verrilli had a good win-loss record in the eight cases that he personally argued during the previous term. The court sided with the government in five, ruled against the government in two, and issued a no-decision of sorts in the other. A re-reading of the transcripts of those arguments shows Verrilli, at least in hindsight, to have been reasonably effective in setting out the government’s positions while fending off skeptical questions from one side of the bench or the other.

Ken also cites Unprecedented, which focuses on the undue bum wrap Verrilli got following NFIB v. Sebelius:

  A year earlier, Verrilli had been openly criticized and even mocked for what was seen as a fumbling defense of the Affordable Care Act. Yet the court upheld the law after Roberts accepted the tax power argument that Verrilli had insisted on keeping in the government’s briefs, according to Josh Blackman’s account of the case in his book Unprecedented. So court watchers may need to be cautious in grading Verrrilli’s arguments at least until the court has issued the only grade that matters.

Putting aside Larry Lessig’s cool Tumblr, which lists every single time the founding generation used the word “corruption,” I have to ask, what is the originalist value of this material? The entire jurisprudence of campaign finance law is a product of the 20th century.

McCutcheon’s brief provides a sketch of the corruption doctrine:

“[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” FEC v. National Conservative PAC, 470 U.S. 480, 496-97 (1985) (“NCPAC”). “Corruption” is limited: “Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Id. at 497. Citizens United again limited “corruption” to quidpro-quo corruption, rejecting influence, access, gratitude, and leveling-the-playing-field as cognizable corruption. 130 S. Ct. at 909-12.

But, Lessig challenges in his CAC brief, McCutechon is applying a modern-day version of “corruption.”

Appellant McCutcheon and the Republican National Committee (collectively “McCutcheon”) contend that the federal aggregate contribution limits impose substantial burdens on First Amendment freedoms and cannot be justified by any constitutionally legitimate interest, and in particular, by the interest in avoiding corruption. McCutcheon Br. at 34-48. McCutcheon’s argument, however, depends upon a modern understanding of the term “corruption,” in sharp conflict with the term’s original meaning. The Framers viewed corruption as one of the greatest threats to government. They considered anti-corruption measures essential to an enduring republican system of government.

Under what mode of originalism are the founders views of something like “corruption” relevant to a term the Court invented during the Ford administration. What, if instead of using the word “corruption,” the Court used a different word. Maybe “influence?” Would a different Tumblr be appropriate? This isn’t about original meaning, or original intent, as far as I can tell.

This is the closest the brief gets to explaining the salience of this history:

Anti-corruption principles are a core element of the Constitution’s text, history, and structure, with overlapping constitutional provisions designed to serve as a bulwark against insidious corruption.

Elsewhere, the brief tries to connect the founding era to the Buckley-jurisprudence in this manner:

 On the contrary, the generous limits here ensure the kind of robust electoral debate the Framers viewed as critical, while also striking out at the kind of dependence corruption the Framers wrote the Constitution to prevent.

I gather they would contend that the First Amendment permits speech, subject to the corruption rationale identified in Buckley. Thus, to give context to this exception–which the Supreme Court labelled “corruption–we have to look to the generation of those who ratified the First Amendment. Is this right?

I would understand if Lessig researched what the founders thought about the “freedom of speech” (there is 1.5 pages on the First Amendment, but it doesn’t cite any founders), or even on elections, but focusing on a single word, “corruption,” to elaborate a theory on what the founders thought about campaign finance law, as applied to doctrine that emerged 40 years ago seems anachronistic.

I’ve experienced this sensation before. I feel like my phone is vibrating when it is not. Apparently this is an actual “syndrome.”

Phantom vibration — that phenomenon where you think your phone is vibrating but it’s not — has only been around since the mobile age. And five years ago, when its wider existence became recognized, news organizations, including ours, covered the “syndrome” as a sign of the digital encroachment in our lives. Today, it’s so common that researchers have devoted studies to it.

…

Nearly 90 percent of college undergrads in a 2012 study said they felt phantom vibrations. The number was just as high for a survey of hospital workers, who reported feeling phantom vibrations between a weekly and monthly basis.

“Something in your brain is being triggered that’s different than what was triggered just a few short years ago,” says Dr. Larry Rosen, a research psychologist who studies how technology affects our minds.

For at least the last four years or so, my phone is always on silent,with no vibrations. The only time my phone makes noise is when someone calls me (this is increasingly rare–it’s usually my parents). I’ve found this helps to create a bit of a barrier between me and the phone. If I’m not looking at my phone, I have no idea if a message has arrived. It’s actually cathartic. I’ve gotten better about phone-etiquette, and now can make it through long stretches at dinner, or elsewhere, without even looking at it. The lack of any audio or vibrate notifications helps immensely.

You know, this entire Obamacare-shutdown thing is helping the economy in at least one way.

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