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.

Two years ago, Justice Ruth Bader Ginsburg lamented that if she were nominated today to her current job on the Supreme Court, her “ACLU connection would probably disqualify” her from being confirmed. Before becoming a judge, Ginsburg led the ACLU’s Women’s Rights Project, where she was literally the single most important women’s rights attorney in American history. As Dahlia Lithwick explains, Ginsburg “almost single-handedly convinced the courts and legislatures to do away with gender classifications” in a range of cases and ushered in modern constitutional doctrine protecting women in the process.

At an event sponsored by the San Diego Association of Business Trial Lawyers on Friday, Ginsburg offered even stronger words of condemnation for our broken senate-confirmation process:

There were only three votes in opposition when she was confirmed to the court by the Senate, but in the past she has said that she doubts if in today’s more partisan political environment if she would be confirmed for the court.

She said Friday that she was hopeful that someday soon the partisan battles over court nominees will fade.

“I’m hoping there will be members of Congress who will say enough. We are destroying the United States’ reputation in the world as a beacon of democracy, and we should go back to the way it was, and the way it should be,” she said of the confirmation process.

It is likely that Ginsburg’s Court will soon take up a lower court’s decision that effectively eliminated the president’s power to make recess appointments. This decision came in the wake of an effort by Senate Republicans to effectively shut down entire federal agencies by filibustering anyone nominated to head them. A Supreme Court opinion reversing that lower court’s error will do little to address the problem of filibusters preventing judges from receiving lifetime appointments to the federal bench, but it will cut off the Senate GOP’s attempt to destroy entire agencies despite controlling neither the White House nor the Senate majority.

In an interview with a New York classical music station that largely focused on her well-known love of opera, Justice Ginsburg briefly discussed her own stance on the death penalty — and that, if it were up to her, she would abolish it:

Every time I have to participate in a case where someone has been sentenced to death, I feel that same conflict. When you are with a group of nine people, the highest court in the land, you can’t pretend to be king or queen. If I had may way, there would be no death penalty. But the death penalty for now, is the law. But I can say, I won’t participate in those cases, then I would not be an influence.

Despite her opposition to the death penalty, Ginsburg previously indicated that she would not vote to strike down all death sentences, as some of her predecessors did in the past, believing she could have more influence on her pro-death penalty colleagues by remaining engaged in the nuances of individual death penalty cases.

In remarks at a recent symposium, U.S. Supreme Court Justice Ruth Bader Ginsburg identified what she called her “dream case” on reproductive choice. It wasn’t Roe v. Wade, she said, but another case that might have better advanced the justices’ understanding of what choice really means. The 1971 case was about a woman who was discharged from the Air Force for refusing to have an abortion. Captain Susan Struck’s appeal was accepted by the U.S. Supreme Court, but the Air Force waived the policy and rendered the case moot before arguments were heard. She explains:

Susan Struck was told by her commanding officer you have a choice: you can get an abortion or you can leave the service, because pregnancy was an automatic ground for discharge. Susan Struck said, I am Catholic. I will not have an abortion. But I will use only my accumulated leave time, I have made arrangements for adoption of the child. Nonetheless, her choice was, you get an abortion or you get out.

That’s the reproductive choice case I wish had come to the Supreme Court first. Because what it was about was a woman’s decision about her life’s course. Would she bear the child or not? And perhaps the court’s understanding of the issue would have been advanced if a woman took the position: I don’t want the government to dictate my choice.

Now, a new case reveals that not much has changed in the ensuing 40 years. A week after Ginsburg’s remarks, news broke of another woman who is challenging her discharge from the Air Force in 2012, for enlisting while pregnant and unmarried. Had she had an abortion or  given the child up for adoption, officials said, she would not have been discharged.

There are some differences between the 1971 scenario and Rebecca Edmonds’ 2012 case. The plaintiff then, Susan Struck, had volunteered to give her child up for adoption and was told that was not an acceptable option, while Edmonds would have been able to serve if she had given up her child. And the 1971 rule discharged all pregnant officers from the military, whereas Edmonds would have been entitled to stay if she were married, even though Edmonds had a plan for the care of her child by the child’s father and grandparents.

In Edmonds’ case, the Air Force contends that the reason for her dismissal was fraud, because she didn’t report her change in medical condition when she became pregnant. But in a letter to Edmonds’ lawyer, Col. Kelly L. Goggins said that even if she had reported the change, she would have been placed on medical recheck, and would have only been able to commission “if she were not a single parent, for example, if she were married, or had given up the child for adoption.” In a separate conversation with an officer, Edmonds said she was told that she would have been able to serve if she had aborted the pregnancy.

Differences aside, both women were prohibited from both keeping their children and serving in the military, a choice that runs counter to the constitutional privacy interests that were the basis for Roe v. Wade. As Justice Ginsburg points out in her remarks, opportunities for women have in some ways improved dramatically since Struck’s case. At the time, Struck revealed to Ginsburg that she aspired to become a pilot, a dream both women knew then was entirely unrealistic. Now, a woman could fulfill that dream — but only if she weren’t a single parent.

[h/t to On the Edges of Science and Law for flagging Justice Ginsburg’s comments]

By the all-too-familiar 5-4 split, the U.S. Supreme Court ruled yesterday that workers cannot sue state governments for monetary damages when denied the unpaid time off guaranteed by the Family and Medical Leave Act.

The 1993 law provided those with full-time jobs at private companies of more than 50 employees and employees of federal, state, and local public governments up to 12 workweeks of unpaid, job-protected leave annually for family and medical reasons.

But the Supreme Court’s plurality in this case, Coleman v. Court of Appeals of Maryland, said that citizens can only sue state governments for damages when Congress finds “a pattern of constitutional violations” and tailors “a remedy congruent and proportional to the documented violations.” This sovereign immunity means that, while state employees have the right to take the leave, if the state blocks their exercise of that right, their only recourse is to get a judge to reverse the potential violation, in advance. Justice Anthony Kennedy wrote the opinion of the court for himself, Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito; Justice Antonin Scalia concurred with Kennedy’s result but not his reasoning.

Justice Ruth Bader Ginsberg, on behalf of Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor, took the rare step of reading her dissent aloud in court. She called the result “regrettable” and observed that the Kennedy opinion “pays scant attention to the overarching aim” of the law, which was “to make it feasible for women to work while sustaining family life.” Ginsburg said that the law was a reasonable effort by congress to ensure the equal protection guaranteed by the 14th amendment for public employees facing discrimination.

While the law remains in full force for employees of private employers, the court’s ruling significantly weakens the law’s protections for hundreds of thousands of public employees. With anti-worker rulings like this, it’s no wonder a mere 28 percent of likely voters like the job the Supreme Court is doing.

Conservative conspiracy theories have had a fun ride since President Obama took office.

First, Barack Obama was a Muslim. Then, he was born in Kenya instead of the United States and only served as president via a forged birth certificate. Then, his decisions as president can only be understood through the frame of “Kenyan, anti-colonial behavior”.

Now, according to the latest tale, courtesy of House Oversight Committee Chairman Darrell Issa (R-CA), President Obama wants to “convert [our Constitution] to some South African Constitution.”

Issa made the curious accusation Friday at the California Republican Party’s Spring Convention in Burlingame:

ISSA: We’re going to establish a very different policy. One, that we have a president who will respect the Constitution, not try to convert it to some [inaudible] South African Constitution. [Applause]

Listen to it:

Issa likely conflated the erroneous accusation that President Obama wants “some South African Constitution” with and equally erroneous accusation that Supreme Court Justice Ruth Bader Ginsburg prefers the South African Constitution that has recently infected right-wing commentary.

Earlier this month, Ginsburg told an audience in Egypt that other countries’ constitutions may be better models for their burgeoning democracy than the United States Constitution because more recently drafted constitutions are often more precise in laying out individual rights. If Issa had bothered to the entire interview, however, he would have heard her stirring praise for the First Amendment, her references to the “genius” of our Constitution, and her statement about how powerful it is that our Constitution places power in “We the People.” Moreover, if Issa paid attention to the views of Ginsburg’s conservative colleagues, he would know that conservative Justice Antonin Scalia made a similar point when he testified at a Senate Judiciary Committee hearing that the Soviet Union’s bill of rights “was much better than ours.”

Yet, even if Ginsburg had claimed that South Africa’s legal traditions are inherently superior to ours, her comments are hardly indicative of President Obama’s views because Justice Ruth Bader Ginsburg is actually an entirely different person than Barack Obama. To help Issa understand this difficult concept, ThinkProgress has prepared the following visual aide:

Hat-tip: @lhfang

During a recent Senate Judiciary Committee hearing, conservative Justice Antonin Scalia said that U.S. Constitution is vastly inferior to that of one of our long defunct enemies:

The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it literally. It was much better. We guarantee freedom of speech and of the press, big deal! The guaranteed freedom of speech, of the press of street demonstrations and anyone who is caught trying to suppress criticism of the government will be called to account.

Watch it:

Scalia’s casual disregard for our Constitution proves that he is manifestly unfit to interpret it. If Scalia would rather live under the Soviet constitution, than he should move to Russia and see how he likes trying to get a job as a judge there. Clearly, ThinkProgress has no choice but to call for this communist infiltrator to immediately resign from the federal bench.

Except that such a call would be completely dishonest, which will be clear to anyone who takes half a minute to watch the entire video embedded in this post.

Sadly, a small army of right-wing legal groups and commentators are perfectly willing to levy an equally unfounded attack against left-of-center Justice Ruth Bader Ginsburg. Last week, Justice Ginsburg told an Egyptian audience that she would not recommend using the United States Constitution as a model for the new Egyptian Constitution. Ginsburg suggested that Egypt should learn from the full experience of the world in drafting constitutions, and because we have the world’s oldest enduring Constitution, its drafters did not benefit from all that humanity has learned about constitution drafting in the last 200 years.

It was no doubt predictable that these comments would inspire right-wing editorials headlined “Justice Ginsburg Should Resign,” but those editorials are just as ill-considered as a suggestion that Scalia must resign because of his comments about the Soviet Union. If Ginsburg’s opponents had actually bothered to watch her entire statement to the Egyptians, they would have heard her stirring praise for our First Amendment, her references to the “genius” of our Constitution, and her statement about how powerful it is that our Constitution places power in “We the People.”

But, of course, Ginsburg’s critics aren’t interested in actually doing their homework, they just want an excuse to go on the attack.

In a speech yesterday at Southern Methodist University law school, Justice Ruth Bader Ginsburg offered a grim assessment of the judicial confirmations process. If she were nominated to the Supreme Court today, her background as a civil rights attorney would likely prevent her from being confirmed:

Ginsburg said that to practice for her Senate confirmation hearings, White House staffers in mock hearings grilled her on her work for the ACLU. During those mock hearings she told them: “There’s nothing you can do to get me to bad mouth the ACLU.”

Such grilling, though, did not happen, she said. She was confirmed 96-3.

“Today, my ACLU connection would probably disqualify me,” she said.

It’s worth noting exactly what kind of work Justice Ginsburg did for the ACLU before she was confirmed to the federal bench. As director of the ACLU’s Women’s Rights Project, Ginsburg was literally the single most important women’s rights attorney in American history. She authored the brief in Reed v. Reed that convinced a unanimous Supreme Court to hold for the very first time that the Constitution’s guarantee of Equal Protection applies to women. And her brief in Craig v. Boren convinced the Court to hand down its very first decision holding that gender discrimination laws are subject to heightened constitutional scrutiny. It is possible that modern doctrines preventing gender discrimination would simply not exist if Ruth Bader Ginsburg hadn’t done the work she did for the ACLU.

And yet, in today’s era of rampant right-wing filibusters, that alone would disqualify her for a seat on the federal bench.