The vacancy on the Supreme Court that materialized with the death of Associate Justice Antonin Scalia this past February, and endures into the current term that began last week, has Americans perplexed about the kind of Supreme Court we want to have. It also has us revisiting the kind of Supreme Court the U.S. Constitution requires us to have. These distinctly different contemplations, although both deserving of our attention, are all too often mistakenly confused as being the same concern.
Given the choice, I favor a nine-member Court. The downside of an even-numbered bench has been evident to most Americans as recently as the last term when important decisions about executive powers, immigration, and unions were left with 4-4 deadlocks for us to see the obvious benefit a ninth justice on the bench would have provided.
Yet just because I would rather have—and simple math would prefer—a fully-staffed Supreme Court doesn’t mean the Constitution requires it. Continue reading
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In his dissent of the majority opinion in Obergefell v. Hodges, Justice Scalia referenced the value of asking your nearest hippie tough, complex questions about constitutional interpretation and the meanings of intimacy and expression.
So I did.
I don’t live in Marin County or Ojai; I live in Chicago but presently reside in D.C. so my nearest hippie is of the urban, erudite fashion, rather than the bell-bottomed kind. She uses cloth diapers though so she’s basically a hippie (to Scalia).
We didn’t talk about intimacy, expression, or spirituality. Instead we focused on the constitutional issues we both noticed from the decision and dissents in conversations. By the end of the mostly textual discussion,
we I thought other people were probably having similar conversations this weekend. In the spirit of inclusivity, we decided to celebrate Scalia’s call to action by publishing the transcript of our Q&A from the weekend. We casually explore our mutual love of constitutional questions, same-sex marriage topics, and the Obergefell case. Ladies and gentleman, I present Cara & Christina on Con Law: The Same-Sex Marriage Cases edition.