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.”

For nearly two years, House Republicans paid conservative superlawyer Paul Clement $520 an hour to defend the anti-gay Defense of Marriage Act in federal court — and then sent the bill to the American taxpayer. In total Clement has now cost the American people up to $3 million for his efforts on behalf of this unconstitutional law. Last night, we taxpayers finally found out what we were paying for — a 60 page brief explaining why the justices should leave marriage discrimination untouched.

As decades of precedent establish that the Constitution should provide a shield to minority groups when prejudice leaves them without adequate recourse to the political process, Clement includes a section discussing just how very powerful and completely capable of vindicating their rights at the ballot box gay men and lesbians have become. Same-sex marriage is supported by President Obama and Vice President Biden! Less than half of Congress filed a brief agreeing with them! A magazine once wrote an article about how influential the Human Rights Campaign is! For the first time in history, an entire 1 percent of the Senate is openly gay!

After touting the immense political clout of a group that, after 226 years of American democracy, finally managed to elect a single person to the upper house of Congress, Clement then drops this line:

In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. . . . Gays and lesbians not only have the attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. . . . [G]iven that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.

One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.”

Because, of course, if the fact that gay people have won a few political battles lately were reason to deny them the equal protection of the laws, then the same would also be true about African-Americans and women. Lyndon Johnson signed the Voting Rights Act two years before Virginia lost its marriage discrimination case in the Supreme Court. The Civil Rights Act of 1964 promised equal treatment to women in the workplace — a promise still denied to gay men and lesbians — seven years before the justices first recognized that official discrimination against women violates the Constitution. Political victories do not cancel out Americans’ constitutional rights, they augment them, and Clement is simply wrong to suggest otherwise.

Ultimately, the sheer absurdity of Clement’s argument exposes why his claims must not prevail at the Supreme Court. The Constitution of Seneca Falls and Selma is also the Constitution of Stonewall. Clement’s argument would deny all three.

The Roberts Court does not much care for America’s obligations to other nations. Five years ago, in a case argued by future Tea Party Sen. Ted Cruz (R-TX), the Court held that Texas could simply ignore an international treaty ensuring that foreign nationals arrested in the United States are informed of their right “to request assistance from the consul of [their own state.] Even North Korea honored this treaty when two American journalists were held captive by that country for five months in 2009.

On Friday, the Supreme Court announced it would hear a case that could further undermine whether other nations can trust America’s word when we agree to certain obligations under a treaty.

On its surface, Bond v. United States is a case about a petty criminal who tried to poison her husband’s mistress. When Carol Anne Bond learned her neighbor was pregnant with Bond’s husband’s baby, she obtained several highly toxic chemicals from her job with a chemical manufacturing company, and then applied those chemicals to the neighbor’s mailbox, car door handles, and house doorknob. The mistress next door suffered chemical burns as a result.

As Bond soon discovered, however, the United States is a party to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. In order to ensure that America meets its obligations under this treaty, Congress passed a law that makes it a criminal act “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon” for a non-peaceful purpose. So Bond’s petty act of revenge quickly became a federal case.

As a general rule, the Constitution does not permit Congress to criminalize murder or assault or other non-economic crimes of violence, except in certain limited circumstances. But that does not mean that the chemical weapons law Bond ran afoul of is unconstitutional. Article II of the Constitution provides that the President “shall have power, by and with the advice and consent of the Senate, to make treaties;” and Article I of the Constitution permits Congress “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” So the president signed onto a valid treaty, the Chemical Weapons Convention, which was then ratified by the Senate. Congress passed a law “carrying into execution” this valid treaty. As a textual matter, the constitutionality of Bond’s conviction is not a difficult case.

But, of course, it is now in front of the same Court that recently imposed implausible new limits on Congress’ power to carry into execution the federal government’s lawful authority in the challenge to the Affordable Care Act — ignoring a recent opinion by none other that conservative Justice Antonin Scalia in order to do so. The justices that brought us that decision, not to mention the Court’s election-buying decision in Citizens United and numerous other decisions ignoring the Constitution’s text and longstanding precedent, cannot exactly be trusted to follow the law in Bond either.

It’s worth noting that Bond is represented by Republican superlawyer Paul Clement, the same attorney behind the challenge to health care and the same lawyer that’s now charged the American taxpayer as much as $3 million to defend the unconstitutional Defense of Marriage Act. It is highly doubtful that Ms. Bond can afford Clement’s legal fees on her own, suggesting that she has a wealthy benefactor with a deep ideological interest in undermining America’s ability to keep its treaty obligations — or in continuing the project Clement began in the health care case of dismantling America’s ability to solve national problems.

The following is the fourth in a four part series previewing the four issues facing the Supreme Court in next week’s Affordable Care Act arguments.

In challenging the Affordable Care Act’s insurance coverage requirement, the law’s opponents seek an unprecedented expansion of judicial power that would eradicate all limits on what the nine unelected judges on the Supreme Court can do. Because their entire legal argument has, in the words of conservative judge Laurence Silberman, no basis “in either the text of the Constitution or Supreme Court precedent,” it eliminates any bounds on what judges can do to impose their will on the American people. If the Supreme Court has the power to strike down the individual mandate, there is nothing preventing it from forcing you to eat broccoli.

And yet, the assault on the mandate is only the second scariest thing the law’s opponents want the Supreme Court to do. To date, no judge has invalidated in ACA’s expansion of Medicaid to ensure that it covers everyone who earns up to 133 percent of the poverty rate. And yet anti-health care attorney Paul Clement is now asking the justices to take away this important expansion of health care to the most vulnerable Americans. If the justices take him up on this offer, it could threaten the very existence of Medicaid as well as numerous other programs funding education, low-income housing and countless other services for low-income Americans and children. Although Clement denies, it, his arguments threaten the very existence of numerous programs that millions of American depend upon.

Like several other federal programs, Medicaid is partnership between the federal government and the states. Under Medicaid, the feds offer funding to the states to enable them to provide health services to the poor. The states are free to take this money or to leave it on the table, but if they accept it they are required to comply with certain conditions. Thus, everything about Medicaid is voluntary. States can always reject Medicaid funds outright if they don’t want to comply with federal Medicaid law.

Clement, however, claims that the recent expansion of Medicaid is unconstitutional because it somehow “coerces” the states into taking Medicaid funds, but this is no more true than it would be true that someone who accepts a job that pays them $1 million a year to do very little work has been “coerced” into taking it. Medicaid is a very good deal for the states, and this is only more true after it was expanded by the ACA, as the federal government picks up 90 percent of the costs of the Medicaid expansion under the ACA. There is no coercion when someone takes a good deal.

To get around this problem, Clement offers a series of increasingly complex arguments, the most distressing of which threatens the very existence of Medicaid itself:

Federal spending is not a product of Congress’ “generosity,” in disbursing funds that materialize out of thin air. Federal funding is overwhelmingly composed of tax dollars collected from the States’ own residents. Accordingly, when the federal government makes conditional funding offers to the States, it is “impos[ing] its policy preferences upon the States by placing conditions upon the return of revenues that were collected from the States’ citizenry in the first place.” Were a State to refuse to comply with Congress’ conditions, “federal taxpayers in [that State] would be deprived of the benefits of a return from the federal government to the state of a significant amount of the federal tax monies collected.” The larger the amount of the funds conditioned, the less realistic the State’s purported option of turning down the funds. Its practical ability to ask residents, already taxed by the federal government to provide health insurance elsewhere, to contribute additional taxes to supplant the declined federal program is all but nil.

In essence, Clement is arguing that the ACA’s Medicaid expansion is unconstitutional because it is funded from tax revenues that come from the residents of the several states. But the same can be said about Medicaid as a whole. Or about federal education funds. Or about federal housing funds. Or about any other federal spending program. Clement’s argument would wipe out much of America’s safety net and leave millions of Americans to fend for themselves.

This is why Clement’s anti-Medicaid argument is the scariest thing in this litigation. The Supreme Court is unlikely to accept his argument, but if they do, America will become a far crueler nation overnight.

The following is the second in a four part series previewing the four issues facing the Supreme Court in next week’s Affordable Care Act arguments.

The highest profile issue in this lawsuit is unquestionably the challenge to the Affordable Care Act’s requirement that nearly all Americans carry insurance or pay slightly more income taxes. No one, however, should confuse the fact that the law’s opponents have run an effective PR campaign touting the idea that this provision is unconstitutional with the reality that it is both clearly and unambiguously constitutional. In the words of Judge Laurence Silberman, a leading conservative judge who once received the Presidential Medal of Freedom from George W. Bush, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.”

Given that there really isn’t a case that the ACA violates our actual Constitution, attorney Paul Clement’s brief attacking the law pursues an unusual strategy — trying to convince the justices that neither our real Constitution nor the nearly 200 years of precedent interpreting Congress’ power to regulate actually exist. As a new Center for American Progress issue brief (written by an author familiar to the readers of this blog) explains, Clement’s entire case falls apart unless the justices accept several entirely fabricated claims about the Constitution and longstanding precedent. Here are just two examples:

Bad Textualism

The Constitution permits Congress to “regulate commmerce . . . among the several states,” and that’s really all you need to know about why the Affordable Care Act is constitutional — the ACA regulates 1/6 of the nation’s economy, and it concerns a nationwide commercial market for health care. Clement tries to get around this problem by asking the justices to read the word “regulate” very narrowly to not allow Congress to to require “individuals to engage in commercial transactions,” but his reconception of the Constitution runs head long into text and history.

In 1824, Chief Justice John Marshall wrote in the very first case to interpret Congress’ power over Congress that there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Marshall explained, the power to “regulate” something “implies in its nature full power over the thing to be regulated.” The Affordable Care Act regulates trade in health care services, and under Marshall’s rule, Congress has “full power” over all forms of trade—including the power to require people to take certain actions within the health care market. Simply put, Marshall was one of the ratifiers of the Constitution itself, so he has far more credibility to tell us what it means than a conservative advocate like Clement.

Hyperbolic Claims

Unsurprisingly, Clement also revives the plaintiffs’ false claim that, if the Affordable Care Act is upheld, that somehow means that Congress can do whatever it wants. The truth is that the Supreme Court has long maintained that nationwide economic regulation — such as a law regulating the entire national health care market — fits comfortably within Congress’ power, but non-economic laws are far more suspect. This is why the United States lists “family law, general criminal law, or education” as examples of laws that exceed Congress’s power to regulate commerce in its brief. Unlike the Affordable Care Act, these laws are not economic in character, and thus fall beyond Congress’ authority over commerce.

In other words, Clement’s hyperbole has little basis in reality. There are all kinds of laws that exceed Congress’ authority — it’s just that none of them are called the Affordable Care Act.

To learn more about the wild departures Clement wants the justices to make from the Constitution’s text and longstanding Supreme Court precedent, read the entire issue brief here.

As Judge Laurence Silberman, a leading conservative who once received the Presidential Medal of Freedom from George W. Bush, wrote last November, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.” Surprisingly, conservative superlawyer Paul Clement’s brief on behalf of the several states arguing that the Affordable Care Act is unconstitutional only really addresses one of these problems.

The most striking thing about the brief is how light it is on citations to cases. Normally, a brief filed in the Supreme Court will be absolutely riddled with case citations in an attempt to demonstrate that the result supported by the brief flows naturally from existing precedent. Clement’s brief, by contrast appears barren by normal standards. His entire summary of his argument includes only three citations to cases, and only one of those cases was decided after 1820.

Instead, much of Clement’s brief reads as if it were an exercise in how the Constitution could have been interpreted if it had never once been examined in the first 225 years of the Republic. He opens the brief with a lengthy argument that just one word in the Constitution’s text forbids Congress from passing a law requiring most Americans to carry health insurance (this passage omits citations, although there are no cites in the bolded part of the quote):

The Constitution grants Congress the power “[t]o regulate Commerce … among the several States.” While the term “commerce” has not always been “marked … by a coherent or consistent course” of interpretation, the term “regulate” has: For nearly two centuries, the Court has defined “the power to regulate” as the power “to prescribe the rule by which commerce is to be governed.” . . . It is axiomatic that the power to “regulate commerce” presupposes the existence of commerce to be regulated. It is not the power to compel individuals to engage in commerce so that Congress has something to regulate The difference between the two is self-evident. The power to regulate is far more modest and allows Congress to reach individuals only if they decide to engage in conduct that constitutes (or substantially affects) interstate commerce..

Unfortunately, for Clement, however, the Constitution has been examined many times by the Supreme and other courts, and it is clearly and unambiguously false that there is two hundred years of precedent defining the word “regulate” the way Clement describes it. To the contrary, Chief Justice John Marshall — a man who, unlike Clement, was actually involved in ratifying the Constitution — disagreed strenuously with Clement’s reading of the document.

In Marshall’s words, there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Marshall wrote in the very first Supreme Court case interpreting Congress’ power over interstate commerce, the power to “regulate” something “implies in its nature full power over the thing to be regulated.”

Given John Marshall’s reading of the Constitution, it’s pretty obvious why Clement’s argument falls apart. If the United States can regulate any form of trade, that includes power over trade in health care services. Moreover, if this regulatory power includes “full power over the thing to be regulated” than Congress may do so however it chooses. That includes the power to require most Americans to pay for their health care through insurance rather than waiting until they become sick and then hoping they have enough money squirrelled away to ward off bankruptcy.

No doubt anticipating this flaw in his argument, Clement responds by splitting a very fine hair:

The federal government attempts to minimize the lack of constitutional grounding for a mandate to purchase health care insurance by recharacterizing it as something it is not: a “regulat[ion of] … the way in which individuals finance their participation in the health care market.” That is simply not true. The mandate does not regulate or even speak to how “individuals finance their participation in the health care market.” Nowhere in the mandate—or anywhere else in entire 2,700 pages of the ACA—did Congress require individuals to actually pay for health care services with the insurance that the mandate requires them to obtain. The mandate neither addresses the “health care services” market nor regulates the method of financing purchases in that market. All the mandate does is force individuals to purchase insurance, which they are free to use or not use in the event that they actually need health care services.

In other words, Clement argues, the ACA doesn’t actually regulate how people purchase their health care because it merely ensures that they have health insurance. It doesn’t actually require people to use it. Somewhere out there, Clement must assume, is a person who would rather buy insurance and pay for their own health care out of pocket rather than simply allowing the insurance company to cover their costs.

One doesn’t exactly have to have a Nobel Prize in Economics to understand why this argument is ridiculous.

Former Solicitor General Paul Clement is the high-priced lawyer of choice for conservative lawmakers eager to mangle the law and the Constitution at taxpayers’ expense. Clement will defend Arizona’s unconstitutional SB 1070 law before the Supreme Court, he is spearheading the challenge to the Affordable Care Act, and he is charging the American taxpayer $520 an hour to defend the unconstitutional Defense of Marriage Act on behalf of Speaker John Boehner and his fellow House Republicans.

According to a contract released last week, South Carolina taxpayers will now be on the hook for the same price to pay for Clement’s services defending an illegal voter ID law:

South Carolina taxpayers will be on the hook for a high-powered Washington attorney’s $520-an-hour rate when the state sues the federal government this week to protect its voter ID law.

That litigation could cost more than $1 million, according to two South Carolina attorneys who have practiced before the U.S. Supreme Court.

S.C. Attorney General Alan Wilson has more than five dozen staff attorneys to handle the state’s legal affairs, but Wilson hired a former U.S. solicitor general to litigate the voter ID case at a rate of $520 an hour, a contract obtained last week reveals.

South Carolina’s taxpayers aren’t just paying this unnecessary and unnecessarily high fee, they are paying it to defend illegal voter suppression. Voter ID laws are popular among conservative lawmakers because they disproportionately disenfranchise students, low income and minority voters — all of whom tend to be more likely to cast votes for left-of-center candidates than the electorate as a whole. Accordingly, these laws exist for the purpose of shifting the electorate rightward.

Such manipulation of the electorate isn’t just disturbing, it is also illegal because the federal Voting Rights Act prohibits state laws that which are either passed specifically to target minority voters or which have a greater impact on minority voters than on others. If the courts pay even the barest heed to the law, they will strike South Carolina’s voter ID law down in a heartbeat.