Wednesday, April 29, 2009


Yes, we had fun, didn't we!

Here, for you all, are the details unavailable from a mere audio transcript, from this morning's argument, and some pertinent questions:

1. Nina Totenberg made a big point of leaving the press section to enter the Bar section and give a distinguished looking gentleman a big kiss. We would all like to know who he was.

2. Abby Thernstrom was seated one person away from John Lewis. I also spotted Patrick Leahy and Ben Cardin. Any other members?

3. Several notables moved colleagues into bar membership. Has such a motion ever been denied?

4. An adorable older man seemed to be picking up a radio station on his hearing aid. I think he was escorted out, but I'm not sure.

5. Why aren't Democrats thrilled to have another opportunity, potentially, to rewrite voting law? Just asking.

6. Ginsberg seemed unwell. Kennedy was mumbling quite a bit, as well.

7. The argument that the Court today stands in the position of the Court in the Civil Rights cases, and that ruling against Section 5 could permit reinstitution of racist practices similar to that time, did not go over well. People, supporters as well as skeptics, cringed.

My prediction: 5 justices concluding that the MUD needs to be able to bailout. 4 reaching further, and finding the renewal of section 5 unconstitutional, as Congress had not sufficiently calibrated it to present conditions. Breyer will write a dissent, where he applies Active Liberty to this context, but yet again fails to drop a footnote to his book. Souter will write for himself and Justice Ginsberg, praising the VRA and especially Section 5 for its ameliorative effects. Souter will pick up on the reference made in argument to Reconstruction and the Civil Rights cases.

UPDATE: We did not observe Nina Totenberg in an indiscretion. The gentleman she greeted so warmly was Frank Lorson, who I understand was a longtime deputy clerk of the Court. There's a photo of Mr. Lorson here, but he seems not to have a Wikipedia page. Someone correct this oversight!