The best example was Tribe, who was seated one row ahead of me and two seats over. (Tribe dismissed the seriousness of the case in the New York Times last year, concluding “this law’s constitutionality is open and shut” because the lower-court judges who ruled against it were “confused.”)
Last week, Tribe was the one looking confused. While Eric Holder remained poker-faced throughout the argument—doubtless aware that he was being watched—Tribe couldn’t contain himself. He pursed his lips, leaned forward, steepled his fingers, and at times cast down his eyes. Any doubts that I was misreading these signs were dispelled when my friend Austin Nimocks of the Alliance Defense Fund, sitting next to me, leaned over and whispered, “Watching Tribe’s body language is priceless.”
The reason for this divide is illustrated by one of Tribe’s books, The Invisible Constitution. (That’s not the one on my shelf, and I won’t be adding it anytime soon.) A majority of the justices evidently concur with Alito, who joked during a Federalist Society dinner speech I attended years ago that he doesn’t know how to read invisible ink, so he will confine himself to the visible Constitution that we can all read anytime we want to. (An illustration from the book appears above.)
Looks like I'll be looking into the Invisible Constitution.