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Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

During Supreme Court arguments Tuesday on whether gays and lesbians have a constitutional right to marry, Justice Antonin Scalia wondered if having parents of the same sex may be "harmful" to children.

Scalia jumped in to make his point when liberal justices were grilling Charles Cooper, the lawyer arguing in favor of Prop 8, California's ban on gay marriage, about what harm it would cause opposite-sex couples.

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During Supreme Court oral arguments Tuesday on California's Proposition 8, justices questioned whether the case had standing, but were narrowly divided on the larger issue of whether the Constitution guarantees a right to same-sex marriage.

The case appeared to break down along ideological lines, with four justices in each camp and Justice Anthony Kennedy once again emerging as the likely swing vote.

Kennedy was skeptical that California or other states have a legitimate interest in outlawing gay marriage. But he was also wary of enshrining it as a constitutional right, saying that would be "uncharted waters" given the novelty of same sex marriage and lack of data about its impacts.

"It's a difficult question that I'm trying to wrestle with," said Kennedy.

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In oral arguments Tuesday morning on California's Proposition 8, the Supreme Court appeared narrowly divided on the question of whether the Constitution's guarantee of equal protection affords same sex couples the right to marry -- but a majority of the justices appeared skeptical that the case has standing and flirted with throwing it out.



Chief Justice John Roberts set the tone by asking each of the lawyers to begin by explaining why the case has standing, as the court had specifically instructed the parties to do.

At least five justices voiced skepticism about whether the case was properly before the court. At issue is whether the case was properly defended. The state of California has declined to defend Prop 8 in court, and so the defense was undertaken by one of the original proponents of the Prop 8 ballot initiative in 2008.

"There's a substantial question on standing," said Justice Anthony Kennedy, who is widely seen as the likely swing vote. "I just wonder if this case was properly granted."

"I suppose there might be people out there with their own personal standing," said Roberts, suggesting that Prop 8 be defended by someone who is personally injured if it is invalidated.

If the case is thrown out on issues of standing, the likely upshot would be to knock down Prop 8, given lower court decisions, without affecting gay marriage bans in other states.

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The Supreme Court will hear arguments Tuesday morning on California's Proposition 8 -- a case that could settle the national debate over marriage equality once and for all.

Or it could throw it back to the political realm for a series of lengthy battles across the dozens of states that have yet to permit same-sex couples to marry.

The case, Hollingsworth v. Perry, is about whether California's ban on gay marriage, adopted by voters in 2008, violates the Constitution's guarantee of equal protection under the law. The lawsuit was brought by Kristin Perry and Sandra Stier, who in May 2009 were denied a marriage license because they were a same-sex couple. Represented by über-lawyers Ted Olson and David Boies, they want the justices to recognize a constitutional right to marry. If a majority of the Court agrees, it would wipe out all state bans on gay marriage.

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Connecticut's two senators wrote a letter on Monday to the National Rifle Association demanding that the group "immediately stop" robo-calling families and friends of the Newtown, Conn., elementary school shooting victims to promote its agenda.

"In a community that's still very much in crisis, to be making these calls opens a wound that these families are still trying hard to heal," wrote Sens. Richard Blumenthal (D-CT) and Chris Murphy (D-CT) to NRA chief Wayne LaPierre. "Put yourself in the shoes of a victim's family member who gets a call at dinnertime asking them to support more assault weapons in our schools and on our streets."

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Updated: 7:25 P.M. ET

Michael Bloomberg is targeting five Democratic senators in red states as part of a $12 million ad blitz launched Monday to build support for mandatory background checks for gun sales.

They are Sens. Mark Pryor (AR), Joe Donnelly (IN), Mary Landrieu (LA), Kay Hagan (NC) and Heidi Heitkamp (ND). Ten Republicans are also on the list.

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The Supreme Court is poised to hear two blockbuster cases on gay rights this week, with historic implications for a cause that is advancing politically at lightning speed.

The cases to be heard on Tuesday and Wednesday involve the constitutionality of California's Proposition 8, which defines marriage as between a man and a woman, and the federal Defense of Marriage Act, which bars married same sex couples from receiving federal benefits.

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The North Dakota legislature has placed a "personhood" amendment on the ballot in 2014 so voters can decide whether to adopt the most sweeping abortion ban in the country, according to media reports.

The personhood measure, which cleared both houses of the legislature on Friday, would guarantee "the inalienable right to life of every human being at any stage of development must be recognized and protected." Opponents say it would prohibit all abortion in the state and may also outlaw birth control.

"The North Dakota legislature has taken historic strides to protect every human being in the state, paving the way for human rights nationwide," said Keith Mason, the president of Personhood USA, which supports the amendment.

Abortion rights groups swiftly criticized the move.

"I am outraged that North Dakota women’s rights and personal health are under attack by extreme politicians. Not only is the Personhood bill extraordinarily dangerous, it’s unconstitutional," said EMILY's List president Stephanie Schriock, predicting that the state's voters will reject the amendment.

"The unprecedented attacks on women’s rights and health across the country are a wakeup call," said Cecile Richards, the president of Planned Parenthood Action Fund. "It is simply not acceptable that women’s standing as free agents and full citizens, able to make their own health care decisions, will depend on where they happen to live."

A majority of Senate Democrats want to eliminate a $29 billion piece of Obamacare.

Thirty-four Democratic senators joined every Republican Thursday night in voting for a nonbinding budget amendment to repeal the law's 2.3 percent sales tax on medical devices. It passed 79-20 -- a victory for the powerful device industry, which has raised hell over the tax.

The Democratic cosponsors for the measure, offered by Sen. Orrin Hatch (R-UT), were Sens. Amy Klobuchar (MN), Al Franken (MN), Joe Donnelly (IN) and Bob Casey (PA) -- all of whom are from states with a strong presence among device makers. The No. 2 and No. 3 Democratic Sens. Dick Durbin (IL) and Chuck Schumer (NY) also voted for repeal.

"Today's action shows there is strong bipartisan support for repealing the medical device tax, with Democrats and Republicans uniting behind our effort," Klobuchar said after the vote. "I will continue to work to get rid of this harmful tax so Minnesota's medical device businesses can continue to create good jobs in our state and improve patients' lives."

The tax, which went into effect in January, represents a years-long power struggle between the medical device industry and the upper echelons of the Democratic totem pole. Unlike other industries who came to the negotiating table and made concessions during the health care reform debate, device makers firmly resisted, and ended up taking a hit. Since then they have waged a fierce, relentless campaign to repeal the excise tax.

While opponents of the fee contend that it'll stifle innovation and cost jobs, supporters argue that it'll have a minimal effect on employment or manufacturing, and that the device industry wasn't singled out. They also say losing that revenue would undercut health care reform.

Notably, Senate Majority Leader Harry Reid (D-NV) and Senate Finance Chair Max Baucus (D-MT), whose committee has jurisdiction, voted against the repeal measure. That means it'll be a struggle for the proponents to bring it to the floor for an actual vote.

But Thursday's symbolic vote gives Republicans plenty of opportunities to exploit sharp Democratic divisions and advance their longstanding goal of hacking away at Obamacare.

"The importance of this vote cannot be overstated," Hatch said. "For the first time, Democrats and Republicans have come together in recognizing how bad this tax is. We cannot stop here. We must continue the fight to get rid of this tax."

The White House formally withdrew its nominee, Caitlin Halligan, to fill one of four vacancies on the powerful D.C. Circuit Court of Appeals -- a hotbed for future Supreme Court justices. She has been blocked by Republican filibusters for years.

After sending his withdrawal to the Senate, President Obama issued a statement railing against GOP filibusters.

Today, I accepted Caitlin Halligan’s request to withdraw as a nominee for the U.S. Court of Appeals for the District of Columbia Circuit.  I am deeply disappointed that even after nearly two and a half years, a minority of Senators continued to block a simple up-or-down vote on her nomination.  This unjustified filibuster obstructed the majority of Senators from expressing their support.  I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.

The D.C. Circuit is considered the Nation’s second-highest court, but it now has more vacancies than any other circuit court.  This is unacceptable.  I remain committed to filling these vacancies, to ensure equal and timely access to justice for all Americans.

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