At yesterday’s marriage equality hearing, several of the Court’s conservatives took swipes at President Obama for refusing to defend the unconstitutional Defense of Marriage Act in court. Justice Scalia worried that “we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” Justice Kennedy compared Obama’s actions to President Bush’s infamous signing statements. Chief Justice Roberts, somewhat bizarrely, accused the President of lacking “the courage of his convictions” by saying DOMA is unconstitutional but continuing to enforce it.

But if Roberts and his fellow conservatives don’t like Obama’s decision, they have only one person to blame for laying the groundwork for it — Chief Justice Roberts.

In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact that none of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court.

So when the Obama Administration refused to defend DOMA, it did nothing more than follow the “Roberts Rule” and travel the path laid by Chief Justice Roberts himself. If Roberts’ fellow conservative have a problem with this Roberts Rule, they should take it up with the Chief.

Beginning this morning, the Supreme Court will hear two cases that could recognize the right of everyone, straight or gay, to marry the person they love. The first concerns California’s anti-gay Proposition 8, and could potentially extend the right to marry to same-sex couples in all fifty states. The second challenges the federal Defense of Marriage Act (DOMA), and could end the federal government’s practice of denying equal benefits to couples who are legally married under state law. Here is everything you need to know to understand these cases:

How The Court Could Rule

– A Broad Decision: The best, and most obvious, decision would be for the justices to follow the Constitution and the clear command of precedent and extend marriage equality to all fifty states. It is fairly likely, however, that at least one member of the majority will be too cautious to require Alabama to follow the Constitution, even if they are prepared to order California to do so. If the justices punt on the Alabama question, the important question is whether they hold that anti-gay laws are subject to “heightened scrutiny,” a skeptical kind of constitutional analysis that will make it very difficult for anti-gay discrimination to withstand court review in the future.

— A One-Off: The Ninth Circuit proposed a way to strike down Prop 8 while leaving most other states free to engage in marriage discrimination (the court said that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court). The logic of the ruling was thus confined to California. Similarly, two of the Court’s most important gay rights opinions relied on very narrow reasoning that advanced equality only incrementally. It is possible the justices will repeat this performance.

– Jurisdictional Dodges: In both cases, the Court could potentially rule that it lacks jurisdiction to hear the case, a decision that would cast a cloud of uncertainty over the rights of gay couples.

– A Stealth Attack: Several prominent conservatives are pushing a dangerous legal theory that would strike down DOMA on states’ rights grounds, and potentially endanger Social Security, veterans benefits and progressive taxation in the process.

– A Loss: Ultimately, however, it is important to remember that this is a severely conservative Court, and even so-called swing vote Justice Kennedy is a severely conservative justice. Equality could lose.

What To Expect From The Justices

– The Democratic Appointees: It would be very surprising if any of the Court’s four Democrats vote to uphold discrimination. While some commentators have noted Justice Ginsburg’s critical statements about Roe v. Wade — “It’s not that the judgment was wrong, but it moved too far, too fast” — this statement suggests Ginsburg might take an incremental approach, not that she will vote to uphold discrimination. Chance of pro-equality vote: more than 90 percent.

– Justice Kennedy: Kennedy is the author of two narrowly reasoned, but very important cases upholding gay rights. His record on gay rights is not perfect, however. Kennedy cast the key vote holding that the Boy Scouts have a constitutional right to engage in anti-gay discrimination, and he’s behaved less and less like a moderate swing vote and more and more like a hardline conservative in recent years. His vote for equality is likely, but not certain, and is more likely than not to rest on very narrow reasoning. Chance of pro-equality vote: 60-70 percent.

– Justice Thomas: Thomas is the Court’s most conservative member, but he once called Texas’ “sodomy” ban an “uncommonly silly” law, and he cares a great deal shrinking federal power until it is small enough to be drowned in a bathtub. Indeed, Thomas believes federal child labor laws and the nationwide ban on whites-only lunch counters are unconstitutional on states’ rights grounds. For this reason, it is possible he will be attracted to the claim that DOMA violates states’ rights. There’s no chance he’ll vote to strike Prop 8, however. Chance of pro-equality vote: 20 percent on DOMA, 0 percent on Prop 8.

– Chief Justice Roberts: Roberts has a lesbian cousin who will attend the marriage arguments as his personal guest, and he once did pro bono work on behalf of gay rights activists when he was an attorney in private practice. Nevertheless, Roberts remains very conservative and has a long record of criticizing decisions that read the Constitution’s promise of equality broadly. If Roberts does vote with a pro-equality majority, it is just as likely that he will do so in order to wrest control of the opinion and narrow it as he would to extend the blessings of liberty to gay Americans. Chance of pro-equality vote: 10 percent.

– Justice Alito: Alito is probably the toughest conservative questioner on the Court, and he has emerged as a strong advocate for whatever outcome conservatives prefer. Chance of pro-equality vote: less than one percent.

– Justice Scalia: In past opinions, Scalia compared homosexuality to murder, drug addiction, bestiality, incest and child pornography. Chance of pro-equality vote: 0 percent. Chance his opinion will accuse pro-equality justices of kowtowing to the “homosexual agenda”: 99.99 percent.

Surging Support For Marriage Equality

– Marriage Equality Has Strong Bipartisan Support: Retired Judge Vaughn Walker, the first judge to strike down Prop 8, is a Republican appointed to the bench by President George H.W. Bush. Three of the court of appeals judges that voted to declare DOMA unconstitutional are Republicans. 131 top Republicans, including six former Republican governors, filed a brief supporting marriage equality.

– The American People Support Marriage Equality: Fifty-eight percent of Americans believe same-sex couples should be allowed to marry. Among adults under 30, support is at 81 percent.

The Constitution guarantees “the equal protection of the laws” — and that includes same-sex couples. As the Supreme Court has explained, this guarantee is most robust when applied to groups that experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” LGBT Americans undoubtedly fit this description, and thus neither DOMA nor Prop 8 can stand.

When President Bush announced his decision to nominate future-Chief Justice John Roberts to the Supreme Court, his wife Jane stood nearby holding the hands of two beautiful children — Jack and Josie Roberts. Both of these children were born in Ireland, and later adopted by the future Chief Justice and his wife. Justice Clarence Thomas also has an adopted son, his grandnephew Mark Martin, Jr., who Thomas adopted when Martin was six.

So it is a bit hard to understand why a top anti-gay advocate decided to insult adoptive parents in general — and Chief Justice Roberts in particular — as the justices are preparing to hear two cases that will decide whether same-sex couples will enjoy the same right to marry as all other Americans. According to John Eastman, a law professor and chair of the anti-gay National Organization for Marriage, Roberts and Thomas’ adopted children are only growing up in the “second-best” environment:

The justices also are not immune to considering how they might be affected by the course one side or the other is advocating in a dispute before them. . . . [Johns Hopkins Sociology Professor Andrew] Cherlin, who does not follow the high court especially closely, wondered whether the gay marriage cases might take on a similar dynamic. “If justices consider their own family lives in these cases, it may change the way they rule,” he said.

Gay marriage opponents said they are not worried about the votes of Roberts and Thomas.

“You’re looking at what is the best course society wide to get you the optimal result in the widest variety of cases. That often is not open to people in individual cases. Certainly adoption in families headed, like Chief Roberts’ family is, by a heterosexual couple, is by far the second-best option,” said John Eastman, chairman of the National Organization for Marriage. Eastman also teaches law at Chapman University law school in Orange, Calif.

There is nothing “second-best” about the family environment Roberts and Thomas have provided to their adopted children. While many critical things can be said about Justice Thomas — and we have said a lot of them — his decision to adopt his grandnephew is admirable and speaks well of Thomas’ capacity for personal sacrifice:

Neither Thomas nor his wife nor several Savannah sources contacted for this story would discuss the circumstances behind Thomas’ taking custody of Mark. But others say that the situation, while not dire, called for a responsible person to step in quickly. Mark Sr., Thomas’ nephew, had been in prison on cocaine trafficking charges. And Mark Jr.’s mother, Susan, was struggling with her own problems, raising four children, including young Mark Jr., on her own. Thomas believed that the boy would face lifelong trouble if he were not removed from his environment soon, and the parents agreed. “He was paying back his own grandfather by taking care of Mark,” says one friend.

The Roberts’ adoption story is rooted less in family tragedy and more in their devout faith. John and Jane Roberts married late in life — Jane was 42. The Chief Justice and his wife chose not to seek medical treatment that would have enhanced Jane’s ability to conceive because “Catholic doctrine prohibits most forms of fertility treatment,” and instead chose to adopt two children. As with Thomas, there are many critical things that can be said about the Chief Justice, but he is by all accounts very kind in his personal interactions and he and his wife provided their adopted son and daughter with a household where they could thrive. Roberts deserves praise for adopting children, and he certainly does not deserve the aspersions cast upon adopted parents by Professor Eastman.

Eastman is also not the first attorney involved in the marriage cases to suggest adoptive parents are somehow a second-best opinion for children. In his brief on behalf of the House Republicans defending the Defense of Marriage Act, conservative superlawyer Paul Clement claimed that “[b]iological parents have a genetic stake in the success of their children that no one else does.”

Supreme Court Chief Justice John G. Roberts. Jr., has stayed a Maryland high court ruling that prohibits DNA collections from suspects charged but not yet convicted in violent crimes. The stay has been granted until at least July 25.

The appeal to the Supreme Court was made by Maryland Attorney General Douglas F. Gansler after Maryland’s Court of Appeals refused to reverse its decision in Alonzo Jay King Jr. v. State of Maryland.

The case centers on Maryland legislation, which, starting in 2009, allowed police to collect DNA from suspects after they were charged with violent crimes or burglaries. Before then, police had been able to collect DNA only from convicted criminals.

Alonzo Jay King Jr. challenged the law after he was arrested in Wicomico County in April 2009 on first- and second-degree assault charges. Prosecutors used a DNA swab stemming from that case to connect him to a 2003 rape. He was eventually convicted and sentenced to life in prison for the rape.

But in a 5 to 2 ruling, the Maryland Court of Appeals sent King’s case back to the Wicomico County Circuit Court and threw out the DNA evidence against him, saying investigators violated his Fourth Amendment rights in taking his genetic material and comparing it with old crime scene samples. The ruling was condemned by prosecutors and police chiefs, who said it would hamper detectives’ ability to solve cold cases and jeopardize the convictions of 34 robbers, burglars and rapists whose genetic samples were taken after they were charged in separate cases.

While the stay is only valid for a week, because lower state and federal courts have been divided on the issue, it is likely that the stay will be extended and the case will be reviewed by the Supreme Court. Twenty-five states and the federal government have similar laws allowing DNA collection after someone has been charged with a violent crime but before conviction, and disputes over their constitutionality have erupted across the country. The main constitutional argument in the case is whether people charged with violent crimes have a reasonable expectation of privacy in their DNA that is higher than that of those who have been convicted.

In their decision that DNA collection after charging but before conviction was unconstitutional, the Maryland Court of Appeals said that its “analysis is influenced by the precept that the government must overcome a presumption that warrantless, suspicionless searches are per se unreasonable….The state bears the burden of overcoming the arrestee’s presumption of innocence and his expectation to be free from biological searches….”

–Alex Brown

Reagan-appointed Judge Richard Posner is one of the most highly regarded judges in the country. He is one of the few federal court of appeals judges whose decisions are routinely taught in law schools, and possibly the only sitting federal judge to enjoy that status. A pioneer of the conservative law and economics movement, Posner is widely viewed as one of the brightest conservative legal thinkers in the country.

Except that the modern GOP may change that.

Posner expressed admiration for President Ronald Reagan and the economist Milton Friedman, two pillars of conservatism. But over the past 10 years, Posner said, “there’s been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking.”

“I’ve become less conservative since the Republican Party started becoming goofy,” he said.

Posner also warned conservatives that “blasting [Chief Justice] Roberts” for his decision upholding the Affordable Care Act will backfire:

“Because if you put [yourself] in his position … what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?‘ Right? Maybe you have to re-examine your position.”

Posner may be right, although it would be a big change for the Chief Justice if he did become more moderate in the face of right-wing attacks. Roberts has shown no problem with hanging around with Posner’s “crowd of lunatics” in the past.

Marc Thiessen, the Bush Administration torture apologist turned Washington Post columnist, uses his column today to proclaim that Chief Justice Roberts was a failed nominee and Republicans need to ensure that future Robertses never reach the high Court again:

We don’t know if he was suddenly convinced by his liberal colleagues, or simply had a failure of nerve. But the challenge for conservatives is clear: We need jurists who not only have a philosophy of judicial restraint, but the intestinal fortitude not to be swayed by pressure from the New York Times, the Georgetown cocktail circuit and the legal academy.

Roberts’s defenders point to his many other conservative decisions and argue that he is not another David Souter or even another Anthony Kennedy. That may be true. But is that really the standard we want for a Supreme Court justice — they are not another Souter or Kennedy? Shouldn’t conservatives expect Republican presidents to do better and appoint another Scalia, Thomas or Alito? That shouldn’t be too much to ask.

First of all, Thiessen can hardly claim to support judges who embrace “judicial restraint” when he is slamming Roberts for refusing to eradicate the entire Affordable Care Act, toss the entire national health system into chaos, and do so on a theory that rejects nearly 200 years of established law.

Moreover, President George W. Bush, who appointed Roberts in 2005, can hardly be blamed for not anticipating that conservatives in 2009 would suddenly decide that a policy proposal that was conceived at the conservative Heritage Foundation and signed into law by Massachusetts Gov. Mitt Romney would be declared a heresy simply because President Barack Obama embraced it. Indeed, Bush nominated Roberts to the Supreme Court less than two months after Justice Scalia published an opinion which establishes that the Affordable Care Act is constitutional.

More recently, three leading conservative judges rejected the purely partisan argument that Obamacare violates the Constitution. Judge Laurence Silberman, who received the Presidential Medal of Freedom from Bush, upheld the law because the case against it “cannot find real support . . . in either the text of the Constitution or Supreme Court precedent.” Judge Jeffrey Sutton, a former law clerk to Scalia who spent much of his pre-judicial career looking for ways to undermine federal power, nonetheless wrote his own opinion rejecting a challenge to the Affordable Care Act. And Judge J. Harvie Wilkinson, one of the finalists for Roberts’ Supreme Court seat, called the case against health reform “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”

So believing that laws like Affordable Care Act are constitutional wasn’t just the mainstream view when Roberts joined the Court, it was the mainstream conservative view. Only a handful of radicals, such as Justice Clarence Thomas, would have rejected the Affordable Care Act if it had reached the Court in 2005.

But, of course, that is besides the point. The purpose of Thiessen’s column is not really to look back on a nomination that already happened, it is to send out a warning on judicial nominations yet to come. Ultimately, the intended audience for this column are the handful of conservative lawyers who will someday be entrusted with selecting nominees for a future Republican president. And the column’s message is clear: next time, pick someone who will follow conservative orthodoxy, regardless of what the Constitution actually says.