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Back in January of 2013, I blogged how Justice Sotomayor rescheduled Vice President Biden’s inaugural oath so she could attend a book signing in New York. I thought this was inappropriate, and offensive. The VP shrugged it off, but we learn in Joan Biskupic’s book that the VP’s staff was “miffed”:

After the reelection victory, Vice President Biden asked Justice Sotomayor to administer the oath of office for the January 20, 2013, inaugural. She agreed, but imposed a condition. She needed the event moved up four hours earlier than the traditional noon ceremony. Sotomayor had committed to a book signing in Manhattan that afternoon and wanted to make sure she got to it. Biden’s aides were miffed. The Los Angeles Times, the first to report that Biden would not be sworn in with Obama, cheekily observed that Sotomayor would not reveal her plans, that she simply “had somewhere else to be.” Court officials would not confirm that Sotomayor’s schedule was dictated by the book event posted on the Barnes & Noble website. 14 A writer on the legal blog Above the Law remarked, “What was more important to Justice Sonia Sotomayor than swearing in Joe Biden as VP at noon on Sunday? Signing books at Barnes & Noble in New York City. Not so wise Latina.” 15 But Sotomayor’s move passed with little public interest or real press scrutiny. Even Vice President Biden accepted the situation matter-of-factly, telling his 120 guests as she rushed off on the morning of the inauguration, “I wanted to explain to you what a wonderful honor it was and how much out of her way the justice had to go. She is due in New York … We are going to walk out , you see her car’s waiting so she can catch a train I hope I haven’t caused her to miss.”

I’m glad Biden was a good sport about it.

 

On Thursday, I gave a talk at the U.C. Davis Federalist Society Chapter about Gridlock and Executive Power. My good friend Jack Chin provided some thoughtful comments about the scope of executive discretion. For example, I was not aware that it is a federal offense to use the word “federal” in any business name–FedEx beware! In-and-out burgers were served. All enjoyed it! Here is the video.

 

In Romer v. Evans, the Court invalidated a Colorado constitutional amendment that prevented localities from providing certain protections to gay people. Justice Kennedy found that this law singled out a class of people, and heaped a special disability onto them. This violated the Equal Protection clause.

In the wake of recent decisions invalidating bans on same-sex marriage, we may see Romer, in reverse. Utah is considering a state constitutional amendment that prevents churches from being forced to perform same-sex marriages. Sen. Jim Dabakis, a gay and married state senator from Salt Lake City (did anyone think that position could have existed only a few years ago?) supports that law, warned that he would oppose any laws that singled out LGBT people as a special class.

But Dabakis has warned that he and others would fight expansion of such legislation to include allowing wedding photographers, wedding cake bakers, reception centers or other businesses to choose not to serve same-sex couples.

“I would have a problem if they start saying LGBT people are in a special class, and they can be discriminated against,” Dabakis said earlier this month.

Is’t this Romer in reverse? In Romer, a state constitutional amendment was passed that singled out gays as a class of people who could not receive certain protections under the law. As Justice Scalia’s dissent characterized it, the law ensured that everyone was being treated equally, but the majority rejected that understanding of the law.

Here, the situation is exactly the opposite. People would now be allowed to discriminate against LGBT customers. Gays would be singled out as a single class, by statute, as a group that cannot bring any claims for discrimination from certain businesses. Depending how these laws are framed, and the background behind them, I can see a Romer challenge lurking.

There is some irony that we’ve gone from Romer, which prevented cities from providing special protections to gays, to these proposed laws, which would deny gays the protections achieved as a result of same-sex marriage bans falling. It’s been a busy two decades!

I’m putting aside for the moment whether these businesses can be required to provide certain services in violation of First Amendment right against compelled speech, or state religious freedom restoration acts. The compelled speech issue–forcing people to officiate at weddings, bake a wedding cake,  photograph a wedding, etc.–is quite serious, and would trump any state statute. But state RFRAs would still be subject to a Romer claim as violative of equal protection as applied.

In a series of video interviews with SCOTUSBlog, Harvard Law Professors offers these thoughts about why he chose constitutional law–with the presumption that he could have done anything else:

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

A disproportionate share of aspiring law professors want to teach constitutional law, for many of the reasons Tribe suggests. A very small number of them will ever be able to claim one of the few ConLaw lecterns–among the most coveted.

One of the themes that Joan Biskupic developed in her new book, Breaking In, was how the more senior Justices perceived their newest colleagues–Justices Sotomayor and Kagan. While Biskupic goes out of her way not to do a direct comparison, at various points throughout the book, we gain insights into how the “colleagues” view them.

Kagan, is a “shrewd tactician.” Sotomayor is a “solo operator.”

Justice Kagan has become known as a shrewd tactician among her colleagues. She has been held up by White House officials as a model for Obama appointees to all federal courts— a judge who has the “potential to persuade” conservative colleagues. 16 Kagan’s pattern on the bench and in opinions indicates that she sees herself operating strategically as one of nine justices. Sotomayor, in contrast, is more of a solo operator, engrossed in her own determinations on a case, less interested and adept in getting others to adopt them.

The Justices also say her desire to shake things up “reflected the core of her character.”

 As surprising as her salsa dancing was at the first end-of-term party, some justices say it now seems to have reflected the core of her character. She shakes up the proceedings and confronts her colleagues in their private discussions of cases.

Nor was she “apt to influence colleagues.”

A substantive compromise eluded them, and it would not have fallen to Sotomayor to broker a deal. This was an area of the law she knew well, certainly . And she had strong views on racial and ethnic policy. But she had generally kept them quiet. And in terms of persuasive force, some judicial colleagues said later that although Sotomayor was clear in making her own opinions known, she was not apt to influence colleagues whose legal views differed from hers. The Second Circuit judges would not disclose all that went on behind the scenes. Speaking generally, Pooler described Sotomayor as a judge who steeped herself in the facts and the law of a case . She said she could sometimes hold tight to her position, wondering of colleagues, “Why can’t you see it?” Yet in these years as an appeals court judge, Sotomayor was cautious and not known for heated dissents or splitting off from her colleagues.

Kagan enamored her colleagues.

The tactics and style that the former Harvard Law School dean brought to the Court were not lost on more senior colleagues, particularly veteran justice Ginsburg, who considered Kagan a persuasive force who might blunt the majority’s move to the right. Even Kagan’s ideological opposite, Chief Justice Roberts, publicly lauded her oral argument style and fluid writing.

(I get the sense that RBG fawns over Elena, but not so much Sonia.)

And in contrast to Kagan, Sotomayor’s early performance in the Court surprised her colleagues.

In these early years, Sotomayor drew more than her share of grimaces from justices in the public courtroom. Sotomayor asserted that she usually had a plan in mind when she jumped into the questioning: “Something most people will learn about me, I get so intensely engaged in argument that it’s never fake,” she said in an early interview. “Every question I ask has a purpose, it has some importance to something that is troubling me or that I’m curious about.”

But some Justices thought her demeanor during oral arguments may be counterproductive.

Some colleagues said they believed her dominant presence on the bench and in conference was an attempt to challenge the doubters, to prove that she was prepared for cases. Others, however, said they believed her manner undercut her ability to work toward consensus.

Yet, this question was “complicated by the dimensions of ethnicity and class.”

 Overall, what did the other justices really think of her? It was a question that arose often among lawyers, journalists, and other close followers of the Court . The query naturally came up because of how Sotomayor stood out. Yet in these tradition- bound environs, where most justices shared backgrounds of privilege, it was a question complicated by the dimensions of ethnicity and class. And there was no single answer. It was clear through interviews with her colleagues that Sotomayor engendered appreciation for her life story and respect for her work ethic. The justices varied in their personal assessments, as is natural with any group: some found her warm, amiable; others found her abrupt and exasperating. At the human level, these differences with her were not small. In the larger scheme of the law, they were. The nine were appointed for life, and they had an incentive to get along. Any qualms expressed by colleagues about Sotomayor were minuscule compared with clashes among the nine in the great span of history.

I think there is a lot buried in this paragraph that Biskupic alludes to, but alas, we are left to speculate what the Justices really think about the penultimate Junior Justice.

Sotomayor resists any comparisons.

Justices Sotomayor and Kagan maneuvered differently among colleagues. Justice Sotomayor often operated autonomously, staking out a position and standing firm. She would not hesitate to write lone concurring opinions, differentiating her views from those of the other liberals. Justice Kagan saw herself more as one of nine in a collective process and during her early tenure never broke off to pen a solo concurrence. Sotomayor resisted comparisons with other justices, saying she considered them counterproductive. Speaking generally, she said that throughout her life she knew there would always be someone who would seem smarter, faster, and better. She said the comparisons she preferred were personal to her: “Am I learning? Am I getting better?” Some senior justices, too, rejected the inevitable comparisons between the two Obama appointees, both Princeton graduates and New Yorkers, noting that outside legal analysts were not equally quick to compare Roberts and Alito, George W. Bush appointees who joined the Court within months of each other.

Again, Biskupic alleges to the fact that Sotomayor and Kagan are compared in ways that Roberts and Alito are not, due to, I presume, complexities about ethnicity and class. I suppose, as Justice Sotomayor is fond of reminding us, race matters.

Read the book. There is a lot of important nuance throughout.