The Big Picture and the Closeup

Judge Feldman tried to draw comfort from the fact that Windsor did not employ the magic phrases “intermediate scrutiny” or “heightened scrutiny.” I would liken that comfort to saying that it’s anybody’s game with two out at the bottom of the ninth inning when the score is 20-0.

I’m not suggesting there is no social utility to the attorney-client privilege. The client certainly has a need to consult counsel in confidence. But what about when there is no client anymore? There is no one then to embarrass, no one to prosecute, potentially no one left whose ox could be gored.