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During a recent event in Washington, Justice Sotomayor made this observation about the state of American politics.

One student asked what barriers still needed to be broken to improve the representation of women and minorities in government.

“Money,” Sotomayor said to laughter. “No, seriously. Look at what’s happening in politics. What’s talking the loudest is money.” For more minorities and women to gain more of a foothold in government decisions, “we’re going to have to work the political system at the highest level,” she said.

I’m not sure that I understand Justice Sotomayor’s comment. Is she saying the inability of women and minorities to raise money keeps them out of politics? Or is she saying that non-women and non-minorities are keeping them out of office by raising more money.

In 2008, then-Senator Obama (a minority) raised $750 million. Senator Clinton (a woman) raised $230 million.  Both opted out of public funding. In 2012, President Obama (a minority) shattered his own record, and raised over $1 billion. Obama out-raised McCain and Romney.  Money does talk the loudest.

In a new blog post, the HHS announced that private insurance companies can no longer deny cover to same-sex spouses.

Today, we are clarifying that, starting next year, if an insurance company offers coverage to opposite-sex spouses, it cannot choose to deny that coverage to same-sex spouses. In other words, insurance companies will not be permitted to discriminate against married same-sex couples when offering coverage. This will further enhance access to health care for all Americans, including those with same-sex spouses.

Folloing Windsor, the Obama Administration has issued a whole host of blog posts (or rules) affecting manners in which the Federal Government will treat all couples married based on the state of celebration, regardless of whether the home state recognizes those marriages.

But this seems different because now the government is forcing private insurance companies to recognize these unions, even if state law specifically forbids it! (Well, insurance companies are not really private anymore).

What isn’t clear from the blog post (we didn’t even get a PDF!) is whether a private employer is now required to offer policies to married same-sex couples. I doubt this is the case, but maybe we’ll get a new blog post soon enough. If this is the case, this will set a collision course with RFRA–forcing employers to provide health insurance to same-sex couples.

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.

Sheriff Richard Mack at the Utah Capitol.

Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.

More pictures of Sheriff Printz

Courts are bound by record as submitted by the parties–even at the District Court level. District Judge Johnson (EDNY) apparently missed that fact, as he personally visited the defendants’ business, to determine if they made the appropriate accommodations for disabled persons.

Here is how the NY Times describes this incident:

Something about the cases seemed wrong. The lawsuits, scores of them, accused businesses of failing to provide proper access for disabled customers. Defendants who lost had to pay the plaintiff’s legal fees, and they piled up in case after case. Last year, a federal judge in Brooklyn, citing “troubling litigation tactics,” denied legal fees, based in part on an unusual step by his chambers. His staff members investigated the matter outside the courtroom.

Now a federal appeals court is saying he went too far.

The judge, Sterling Johnson Jr., sent staff members to visit several Brooklyn businesses that were sued by Mike Costello, a paraplegic man, and found that most if not all were never made more accessible to disabled people.

The 2nd Circuit summarily vacated his opinion, and reassigned the case! The panel included all-star judicial diva, Judge Rakoff sitting by designation, who I’m sure enjoyed this benchslap.

However, we cannot affirm the district court’s denial of attorneys’ fees on the record before us. In its order, the district court noted that it visited “each of the businesses that were named defendants in Plaintiff’s eight lawsuits” and purported to take judicial notice of the fact that “most if not all of the alleged structural deficiencies preventing access to persons with disabilities still exist.” App. 115–16 & n.14. The district court drew from its observations the conclusions that plaintiff’s counsel never sought to remedy these failings, that counsel’s conduct was “mendacious,” and therefore that they should receive no attorneys’ fees. Id. at 116.

I had a blast on Houston Matters, a great local show on Houston Public Radio. The topic of yesterday’s program was what the 28th Amendment to the Constitution should be. Callers proposed different amendments, and Teddy Rave  of the University of Houston Law Center and I weighed them.

One of my favorite (and craziest) callers proposed executing any official who does not comply with the Constitution. That gives new meaning to “take care that the laws are faithfully *executed*” Another caller said we should strengthen the separation of Church and State in the Constitution. I told her (to her surprise) that the First Amendment says nothing about this separation, and referenced Jefferson’s letter to the Danbury Baptists. Another caller said we should abolish the penny! I wholeheartedly agree. It costs 1.8 cents to make. We should do to Lincoln’s coin what Lincoln did to habeas corpus–suspend it!

Perhaps my favorite part was when a caller asked about amending the Constitution to eliminate protections for corporate speech. I reminded everyone that I am speaking on a corporation (KUHF), and that this corporation is relying heavily on the First Amendment. I hope that message got through to opponents of Citizens United who routinely donate to public radio. And yes, I’m aware that they may avail themselves of the Press Clause, rather than the Free Speech clause, but other non-Press corporations have routinely availed themselves of corporate personhood for purposes of the First Amendment.

I threw out some red meat to Texas listeners, including a proposal to allow states to secede, prohibit the federal government from requiring people to engage in commercial activity, and the ever-popular repeal of the federal income tax. It was a fun show.

Thanks to my mom, who was in town, for recording me in studio.

You can listen here: