Charlie Pierce Provides The Entertainment This Afternoon

This was not a law. It was a scheme. https://t.co/hhmS4tJNvS

— Charles P. Pierce (@CharlesPPierce) November 2, 2021

I had no idea the argument had cut this close to home; home in Texas, I mean.  Justice Sotomayor speaks first:

How about in Obergefell, imposes S.B. 8 style liability on anyone who officiates, aids, or abets a same sex wedding? How about, dissatisfied with Lawrence vs. Texas, subjects private consensual sexual conduct of which it disapproved to the exact same law as S.B. 8? How about Griswold, the use and sale of contraception is subject to S.B. 8 style liability? So this is not limited to abortion. That's the point that's been raised. It’s limited to any law that a state thinks it’s dissatisfied with.

Stone should’ve known he was in trouble when Justice Stephen Breyer threw the terms “interposition” and “nullification,” as well as the names of Justice Oliver Wendell Holmes and John C. Calhoun, at him. Nobody arguing even a tacit states' rights position wants to hear that. Justice Elena Kagan also dropped a new name for what Stone was defending: “unpreferred constitutional rights,” meaning that if a state doesn’t like a ruling regarding constitutional rights, it can simply raise a civilian posse against it. And she wasn’t finished yet.

But, General Stone, I think it's the combination of everything, you know? It's the $10,000 and it's everything that Justice Kavanaugh said and it's other provisions behind. And we've had a little experiment here, and we've seen what the chilling effect is. You know, usually, in these chilling effect cases, we're kind of guessing. Well, I—this would sort of chill me. Here, we're not guessing. We know exactly what has happened as a result of this law. It has chilled everybody on the ground.

The fact that, after oh these many years, some geniuses came up with a way to evade [that precedent, and] the even broader principle that states are not to nullify federal constitutional rights, and to say ‘Oh, we’ve never seen this before so we can’t do anything about it’ ... I guess I just don’t understand the argument. 

For those of you who don't remember: 

Marriage equality is the law of the land — except in Texas, argues the state GOP.

Legislative leaders in TX issued an opinion stating legalized gay marriage shouldn’t be permitted in the Lone Star State because they feel state law trumps the SCOTUS ruling in Obergefell v Hodges. pic.twitter.com/pmwkvsjOQN

— The Lincoln Project (@ProjectLincoln) October 22, 2021

I'm pretty sure Lawrence v. Texas was chosen with care. I think the reference to Obergefell was a shot across the bow, too.

I do have to toss this log on the fire.  Justice Kagan, again:

Your answer to Justice Kavanaugh, which is, ‘Go ask Congress,’ I mean, isn’t the point of a right that you don’t have to ask Congress? Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?

It only has to really matter to a majority of the Supreme Court.  Right?