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(Talking Points Memo)   "Gay activists think they can win over Justice Kennedy." Well we can make him a hat, or a broach, or maybe a pterodactyl   (tpmdc.talkingpointsmemo.com) divider line 59
    More: Interesting, Justice Kennedy, Gay Activist, freedom to marry, Erwin Chemerinsky, majority opinion, law schools  
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607 clicks; posted to Politics » on 14 Dec 2012 at 11:52 AM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-12-14 08:38:09 AM
I don't think that's the kind of "swing vote" he is, subby
 
2012-12-14 08:54:28 AM
I'm currently halfway through my sex law take home final on this very topic, so I'm getting a kick. Will be back to check in on the thread in another six hours, assuming by brain hasn't turned to mush by then.
 
2012-12-14 09:01:52 AM
There's a sale at Penny's!!
 
2012-12-14 09:39:56 AM
And Antonin's getting laaarger...
 
2012-12-14 09:52:23 AM
I wonder of Scalia's recent "I sure do hate those homos" comments (well, that was pretty much what his "argument" boiled down to) will end up having any affect on this whole thing, as more moderate Justices like Kennedy and maybe even Roberts become concerned that a vote against gay marriage could make it appear that they are voting out of personal animus or prejudice.

But it's more likely that they'd vote against it, and come up with some tortured explanation of how previous case law doesn't matter, and this opinion shouldn't be used as the prescedent for any future cases. Because, you know, they're strict constructionists.
 
2012-12-14 10:07:05 AM

jake_lex: I wonder of Scalia's recent "I sure do hate those homos" comments (well, that was pretty much what his "argument" boiled down to) will end up having any affect on this whole thing, as more moderate Justices like Kennedy and maybe even Roberts become concerned that a vote against gay marriage could make it appear that they are voting out of personal animus or prejudice.

But it's more likely that they'd vote against it, and come up with some tortured explanation of how previous case law doesn't matter, and this opinion shouldn't be used as the prescedent for any future cases. Because, you know, they're strict constructionists.


Nah, it makes no sense for Kennedy to rule against equality given how willing he was to stretch rational basis to the breaking point in Romer. And Roberts isn't going to want Con Law professors from here to eternity talking about the Roberts court the same way that they talk about the court in Dred Scott, Plessy, and Korematsu.
 
2012-12-14 10:47:26 AM

Diogenes: And Antonin's getting laaarger...


I just threw up in my mouth a little bit...no, it's projectile. I was wrong, it's projectile. 

content6.flixster.com
 
2012-12-14 10:50:28 AM
It's going to be 5-4 or 6-3 in favor of gay rights. Scalia Thomas and Alito are locked up against this. The four left-leaning justices will vote for it.

Kennedy and Roberts are going to be the deciding votes. I think you'll see Roberts come out in favor of gay marriage because he doesn't want to be on the wrong side of history. Roberts is a guy who cares about his legacy as Chief Justice. Kennedy is up in the air to me.
 
2012-12-14 10:51:04 AM

rynthetyn: jake_lex: I wonder of Scalia's recent "I sure do hate those homos" comments (well, that was pretty much what his "argument" boiled down to) will end up having any affect on this whole thing, as more moderate Justices like Kennedy and maybe even Roberts become concerned that a vote against gay marriage could make it appear that they are voting out of personal animus or prejudice.

But it's more likely that they'd vote against it, and come up with some tortured explanation of how previous case law doesn't matter, and this opinion shouldn't be used as the prescedent for any future cases. Because, you know, they're strict constructionists.

Nah, it makes no sense for Kennedy to rule against equality given how willing he was to stretch rational basis to the breaking point in Romer. And Roberts isn't going to want Con Law professors from here to eternity talking about the Roberts court the same way that they talk about the court in Dred Scott, Plessy, and Korematsu.


Putting the actual issue aside, the SCOTUS has to decide if they wish to continue being relevant. Same-sex marriage is going to happen no matter what. Most industrialized countries have it. Many US States. The majority of people accept it with a growing number of people demanding it.
 
2012-12-14 10:52:10 AM
"Gay activists think they can win over Justice Kennedy."

It's certainly possible but I wonder how we'll slip some G in his drink.
 
2012-12-14 10:53:17 AM

bdub77: It's going to be 5-4 or 6-3 in favor of gay rights. Scalia Thomas and Alito are locked up against this. The four left-leaning justices will vote for it.

Kennedy and Roberts are going to be the deciding votes. I think you'll see Roberts come out in favor of gay marriage because he doesn't want to be on the wrong side of history. Roberts is a guy who cares about his legacy as Chief Justice. Kennedy is up in the air to me.


Your optimism encourages me.
 
2012-12-14 11:16:44 AM
All I have to say is that if Kennedy has any grandkids who are gay, now's the time to come out.
 
2012-12-14 11:39:26 AM
"How about some coffee, Johnny?"
"No thank youuuu!"
 
2012-12-14 11:53:24 AM

rynthetyn: I'm currently halfway through my sex law take home final on this very topic, so I'm getting a kick. Will be back to check in on the thread in another six hours, assuming by brain hasn't turned to mush by then.


If it hasn't turned by then, reading what this thread is about to become certainly will.
 
2012-12-14 11:54:32 AM
assets.nydailynews.com

I just want to tell you both Good Luck. We're all counting on you.
 
2012-12-14 11:55:30 AM

Stile4aly: [assets.nydailynews.com image 485x364]

I just want to tell you both Good Luck. We're all counting on you.


What an amazing alliance.
 
2012-12-14 11:56:19 AM

jake_lex: I wonder of Scalia's recent "I sure do hate those homos" comments (well, that was pretty much what his "argument" boiled down to) will end up having any affect on this whole thing, as more moderate Justices like Kennedy and maybe even Roberts become concerned that a vote against gay marriage could make it appear that they are voting out of personal animus or prejudice.

But it's more likely that they'd vote against it, and come up with some tortured explanation of how previous case law doesn't matter, and this opinion shouldn't be used as the prescedent for any future cases. Because, you know, they're strict constructionists.


Kennedy is already on the side of equality, if his opinion in Lawrence v. Texas is any guide.

I think Roberts would be more swayed by the potential legacy of his court than by any perception of prejudice; he does not want his name attached to the next "separate but equal".
 
2012-12-14 11:58:17 AM

qorkfiend: rynthetyn: I'm currently halfway through my sex law take home final on this very topic, so I'm getting a kick. Will be back to check in on the thread in another six hours, assuming by brain hasn't turned to mush by then.

If it hasn't turned by then, reading what this thread is about to become certainly will.


I'm about ready to find a high building to end it all at this point. And I'm still only halfway through the equal protection analysis.
 
2012-12-14 11:58:31 AM

Diogenes: "Gay activists think they can win over Justice Kennedy."

It's certainly possible but I wonder how we'll slip some G in his drink.


There's bound to be at least one gay waiter at his country club.
 
2012-12-14 12:02:35 PM

bdub77: It's going to be 5-4 or 6-3 in favor of gay rights. Scalia Thomas and Alito are locked up against this. The four left-leaning justices will vote for it.

Kennedy and Roberts are going to be the deciding votes. I think you'll see Roberts come out in favor of gay marriage because he doesn't want to be on the wrong side of history. Roberts is a guy who cares about his legacy as Chief Justice. Kennedy is up in the air to me.


Or, given the facts of the two cases and how "gay marriage" really isnt very much in play, in Perry there are likely to be 7-8 votes for bouncing it on standing grounds, with 5-7 in support of the 9th cir opinion holding that stripping people of rights after they have been granted requires more than California was able to show.

As to Windsor, i would not be surprised to see 7 in support of the 2d cir's proposition that DOMA unconstitutionally burdens those states with gay marriage (plurality 4 arguing equal protection, 3 arguing federalism). Also i expect a thundering concurrence indicating that the 2nd Cir.'s intermediate scrutiny argument was pulled out of its ass.

I see no likelihood that the SCOTUS will actually rule on gay marriage as in Loving v. Virginia yet. They will wait for a case that squarely presents that argument so they can overturn Baker v. Nelson. I wish they would do it, but thats not the way this court operates (mostly).
 
2012-12-14 12:03:56 PM

bdub77: I think you'll see Roberts come out in favor of gay marriage because he doesn't want to be on the wrong side of history.


Isn't Roberts also rumored to be gay?
 
2012-12-14 12:04:02 PM
I should stress that when i say 5-7 in support of the 9th cir, i mean that will be dicta, or the ruling if the court somehow passes on the frankly ridiculous standing issues.
 
2012-12-14 12:06:29 PM
sounds pterrific
 
2012-12-14 12:06:52 PM

Teiritzamna: I should stress that when i say 5-7 in support of the 9th cir, i mean that will be dicta, or the ruling if the court somehow passes on the frankly ridiculous standing issues.


Ridiculous standing issues?
 
2012-12-14 12:11:59 PM

bdub77: It's going to be 5-4 or 6-3 in favor of gay rights. Scalia Thomas and Alito are locked up against this. The four left-leaning justices will vote for it.

Kennedy and Roberts are going to be the deciding votes. I think you'll see Roberts come out in favor of gay marriage because he doesn't want to be on the wrong side of history. Roberts is a guy who cares about his legacy as Chief Justice. Kennedy is up in the air to me.


I hope you're right. I will celebrate with an evening of gay sex.
 
2012-12-14 12:15:07 PM

qorkfiend: Ridiculous standing issues?


In Perry, both the executive (the governator) and the AG (Brown) refused to appeal, basically indicating that the State of California conceded the point. As they were the named parties, that would usually be the end of it. However prop 8 proponents argued that they also have standing to raise an appeal and the california supreme court held that they did.

So we have a lawsuit where the initial defendants have agreed to abide by the original ruling and some other somewhat interested parties jumped in and raised the appeal based on the argument that they were involved in the referendum process. This looks perilously close to tax-payer standing (i.e. the idea that any citizen can sue the government for anything it does with revenue because that citizen pays taxes). This is a concept the supreme court has shiat all over for the last 50 years. I would, frankly, be very very shocked that the SCOTUS wanted anything to do with Perry other than to hold that no, when the executive of a state decides to bow out, random voters cannot jump in and appeal a case.
 
2012-12-14 12:16:53 PM

Teiritzamna: qorkfiend: Ridiculous standing issues?

In Perry, both the executive (the governator) and the AG (Brown) refused to appeal, basically indicating that the State of California conceded the point. As they were the named parties, that would usually be the end of it. However prop 8 proponents argued that they also have standing to raise an appeal and the california supreme court held that they did.

So we have a lawsuit where the initial defendants have agreed to abide by the original ruling and some other somewhat interested parties jumped in and raised the appeal based on the argument that they were involved in the referendum process. This looks perilously close to tax-payer standing (i.e. the idea that any citizen can sue the government for anything it does with revenue because that citizen pays taxes). This is a concept the supreme court has shiat all over for the last 50 years. I would, frankly, be very very shocked that the SCOTUS wanted anything to do with Perry other than to hold that no, when the executive of a state decides to bow out, random voters cannot jump in and appeal a case.


Ah, ok. Thanks.
 
2012-12-14 12:18:05 PM

rynthetyn: I'm currently halfway through my sex law take home final on this very topic, so I'm getting a kick. Will be back to check in on the thread in another six hours, assuming by brain hasn't turned to mush by then.


Just write "never go a2m" for every answer. It's the only sex law you need to know.
 
2012-12-14 12:18:51 PM
They could convince all 9 on overturning DOMA. Gay rights and states rights, two completely opposite arguments for overturning the same law.

For Prop 8, that ones is going to be close.
 
2012-12-14 12:19:44 PM

rynthetyn: I'm currently halfway through my sex law take home final on this very topic, so I'm getting a kick. Will be back to check in on the thread in another six hours, assuming by brain hasn't turned to mush by then.


1) good luck!!

2) i dont know if i would have become an IP attorney if i knew i could practice sex law.
 
2012-12-14 12:22:39 PM

12349876: They could convince all 9 on overturning DOMA. Gay rights and states rights, two completely opposite arguments for overturning the same law.


yeah, while i think the federalism angle could hook the big Nino, I could still see thomas being a hold-out cause he is a sperm turtle.

For Prop 8, that ones is going to be close.

Nah - its really likely there will be a bunch of agreement on standing - the SCOTUS's favorite way to get the hell out of an opinion. Heck, i could even see Scalia drafting it, like an action-packed gay themed sequel to Lujan v. Defenders of Wildlife.
 
2012-12-14 12:27:55 PM

Teiritzamna: bdub77: It's going to be 5-4 or 6-3 in favor of gay rights. Scalia Thomas and Alito are locked up against this. The four left-leaning justices will vote for it.

Kennedy and Roberts are going to be the deciding votes. I think you'll see Roberts come out in favor of gay marriage because he doesn't want to be on the wrong side of history. Roberts is a guy who cares about his legacy as Chief Justice. Kennedy is up in the air to me.

Or, given the facts of the two cases and how "gay marriage" really isnt very much in play, in Perry there are likely to be 7-8 votes for bouncing it on standing grounds, with 5-7 in support of the 9th cir opinion holding that stripping people of rights after they have been granted requires more than California was able to show.

As to Windsor, i would not be surprised to see 7 in support of the 2d cir's proposition that DOMA unconstitutionally burdens those states with gay marriage (plurality 4 arguing equal protection, 3 arguing federalism). Also i expect a thundering concurrence indicating that the 2nd Cir.'s intermediate scrutiny argument was pulled out of its ass.

I see no likelihood that the SCOTUS will actually rule on gay marriage as in Loving v. Virginia yet. They will wait for a case that squarely presents that argument so they can overturn Baker v. Nelson. I wish they would do it, but thats not the way this court operates (mostly).


I think it's more likely that you'll get five saying that DOMA violates equal protection and two (Roberts and Thomas) saying that the federal government doesn't have the power to define marriage. Intermediate scrutiny is a wildcard still. I'd put it at 50-50 right now. And I agree that Perry will probably be found to not have standing with Walker's opinion reinstated.
 
2012-12-14 12:29:33 PM

Teiritzamna: rynthetyn: I'm currently halfway through my sex law take home final on this very topic, so I'm getting a kick. Will be back to check in on the thread in another six hours, assuming by brain hasn't turned to mush by then.

1) good luck!!

2) i dont know if i would have become an IP attorney if i knew i could practice sex law.


The class is actually called, "The Law of Sex and Sexual Orientation," we just all call it sex law. I'm actually wanting to do IP, this just seemed like an interesting class to take given what's going on right now in the courts. My semester was basically all IP classes, legal drafting, and then sex law.
 
2012-12-14 12:31:39 PM

rynthetyn: The class is actually called, "The Law of Sex and Sexual Orientation," we just all call it sex law. I'm actually wanting to do IP, this just seemed like an interesting class to take given what's going on right now in the courts. My semester was basically all IP classes, legal drafting, and then sex law.


Hee - do it, IP rocks. Litigation or transactional, do you think?
 
2012-12-14 12:31:42 PM

Teiritzamna: 12349876: They could convince all 9 on overturning DOMA. Gay rights and states rights, two completely opposite arguments for overturning the same law.

yeah, while i think the federalism angle could hook the big Nino, I could still see thomas being a hold-out cause he is a sperm turtle.


Are you kidding me? Did you not just hear Scalia compare gay people to murderers? There's no way he will vote to strike DOMA. At best, you're looking at an 8-1 opinion. Hell, I wouldn't be surprised if he wrote a dissent saying nobody could define marriage as anything but a man and a woman.
 
2012-12-14 12:35:38 PM

Serious Black: Are you kidding me? Did you not just hear Scalia compare gay people to murderers? There's no way he will vote to strike DOMA. At best, you're looking at an 8-1 opinion. Hell, I wouldn't be surprised if he wrote a dissent saying nobody could define marriage as anything but a man and a woman.


1) while i found his comments vile, he was not comparing gay people to murderers, he was saying cant we have laws based on morality, because isnt that what laws against murder, at bottom, are. I would quote Posner and Holmes at him and say that our laws are based on utility, not morality anymore. While there is a strong utilitarian argument against murder there is no such utility argument against gay marriage.

2) i have seen Nino do weird ass things when his philosophies collide. I agree that there is no way in the seven hells he would ever find that there is a general Equal Protection argument right to gay marriage. However, in the context of the DOMA opinion, his love of limited federal government and states righst could mean he would sign on to an opinion that states that marriage is one of the most traditional of the police powers of a state and the federal government has no right nor power to define marriage in any way beyond saying "whatever the states say".
 
2012-12-14 12:40:52 PM

rynthetyn: All I have to say is that if Kennedy has any grandkids who are gay, now's the time to come out.


I don't know if he has any gay grandchildren, but I know for sure he's had plenty of openly gay students over the years.
 
2012-12-14 12:41:57 PM

Teiritzamna: rynthetyn: The class is actually called, "The Law of Sex and Sexual Orientation," we just all call it sex law. I'm actually wanting to do IP, this just seemed like an interesting class to take given what's going on right now in the courts. My semester was basically all IP classes, legal drafting, and then sex law.

Hee - do it, IP rocks. Litigation or transactional, do you think?


I'm not sure. I've got to get my ducks in a row to see whether my computer science classes count as all the required classes for the patent bar, though I'm leaning more towards litigation at the moment.
 
2012-12-14 12:42:25 PM

rynthetyn: Teiritzamna: rynthetyn: I'm currently halfway through my sex law take home final on this very topic, so I'm getting a kick. Will be back to check in on the thread in another six hours, assuming by brain hasn't turned to mush by then.

1) good luck!!

2) i dont know if i would have become an IP attorney if i knew i could practice sex law.

The class is actually called, "The Law of Sex and Sexual Orientation," we just all call it sex law. I'm actually wanting to do IP, this just seemed like an interesting class to take given what's going on right now in the courts. My semester was basically all IP classes, legal drafting, and then sex law.


www.nndb.com

Is this guy the professor? After all, he wrote the seminal treatise on defining the logic of our sexx laws.
 
2012-12-14 01:11:02 PM
 
2012-12-14 01:12:09 PM

Teiritzamna: 2) i dont know if i would have become an IP attorney if i knew i could practice sex law.


And become an ItBurnsWhenIP attorney?
 
2012-12-14 01:15:13 PM

Teiritzamna: Serious Black: Are you kidding me? Did you not just hear Scalia compare gay people to murderers? There's no way he will vote to strike DOMA. At best, you're looking at an 8-1 opinion. Hell, I wouldn't be surprised if he wrote a dissent saying nobody could define marriage as anything but a man and a woman.

1) while i found his comments vile, he was not comparing gay people to murderers, he was saying cant we have laws based on morality, because isnt that what laws against murder, at bottom, are. I would quote Posner and Holmes at him and say that our laws are based on utility, not morality anymore. While there is a strong utilitarian argument against murder there is no such utility argument against gay marriage.

2) i have seen Nino do weird ass things when his philosophies collide. I agree that there is no way in the seven hells he would ever find that there is a general Equal Protection argument right to gay marriage. However, in the context of the DOMA opinion, his love of limited federal government and states righst could mean he would sign on to an opinion that states that marriage is one of the most traditional of the police powers of a state and the federal government has no right nor power to define marriage in any way beyond saying "whatever the states say".


Particularly if he knows he's on the losing side of a 7-2 or 8-1 decision... Instead, he'd draft a concurrence that makes it look like he's on the winning side, while simultaneously disagreeing with the majority and using different grounds, such as the Article I lack of powers argument.
 
2012-12-14 01:15:52 PM

Theaetetus: And become an ItBurnsWhenIP attorney?


i.qkme.me

/i say this only because i feel ashamed that i laughed.
 
2012-12-14 01:17:32 PM

Theaetetus: Particularly if he knows he's on the losing side of a 7-2 or 8-1 decision... Instead, he'd draft a concurrence that makes it look like he's on the winning side, while simultaneously disagreeing with the majority and using different grounds, such as the Article I lack of powers argument.


Exactly. Thomas, on the other hand will just keep on putting his fingers in his ears and singing "i am on the high court!" over and over to himself.
 
2012-12-14 01:26:13 PM

Teiritzamna: Theaetetus: Particularly if he knows he's on the losing side of a 7-2 or 8-1 decision... Instead, he'd draft a concurrence that makes it look like he's on the winning side, while simultaneously disagreeing with the majority and using different grounds, such as the Article I lack of powers argument.

Exactly. Thomas, on the other hand will just keep on putting his fingers in his ears and singing "i am on the high court!" over and over to himself.


To be fair, if either of us were on SCOTUS, we'd be singing also.
 
2012-12-14 01:26:23 PM

Teiritzamna: Theaetetus: Particularly if he knows he's on the losing side of a 7-2 or 8-1 decision... Instead, he'd draft a concurrence that makes it look like he's on the winning side, while simultaneously disagreeing with the majority and using different grounds, such as the Article I lack of powers argument.

Exactly. Thomas, on the other hand will just keep on putting his fingers in his ears and singing "i am on the high court!" over and over to himself.


Nah, Thomas will probably write something about how he thinks that same-sex marriage bans are stupid laws that ought to be changed, but that it doesn't fall within his narrow interpretation of due process or equal protection, and that if people don't like that the appropriate action is not for the supreme court to overstep its bounds, it's for people to fix it through legislative means or change the constitution. Just like how in Lawrence he wrote that the Texas sodomy ban was a ridiculous law but under the original intent of the founders it was constitutional.
 
2012-12-14 01:32:35 PM

rynthetyn: Nah, Thomas will probably write something about how he thinks that same-sex marriage bans are stupid laws that ought to be changed, but that it doesn't fall within his narrow interpretation of due process or equal protection, and that if people don't like that the appropriate action is not for the supreme court to overstep its bounds, it's for people to fix it through legislative means or change the constitution. Just like how in Lawrence he wrote that the Texas sodomy ban was a ridiculous law but under the original intent of the founders it was constitutional.


That would be what i call sticking his fingers in his ears etc.

Frankly it shocks me every time i read it that eBay Inc. v. MercExchange is a Thomas opinion (its weird to read something with his name on it that i think is 100% right - i know its unanimous and uncontroversial from a constitutional perspective, but i still find it eerie).
 
2012-12-14 01:45:23 PM

Teiritzamna: rynthetyn: Nah, Thomas will probably write something about how he thinks that same-sex marriage bans are stupid laws that ought to be changed, but that it doesn't fall within his narrow interpretation of due process or equal protection, and that if people don't like that the appropriate action is not for the supreme court to overstep its bounds, it's for people to fix it through legislative means or change the constitution. Just like how in Lawrence he wrote that the Texas sodomy ban was a ridiculous law but under the original intent of the founders it was constitutional.

That would be what i call sticking his fingers in his ears etc.

Frankly it shocks me every time i read it that eBay Inc. v. MercExchange is a Thomas opinion (its weird to read something with his name on it that i think is 100% right - i know its unanimous and uncontroversial from a constitutional perspective, but i still find it eerie).


See, I actually respect Thomas even though I don't agree with him most of the time, because unlike Scalia he'll stick with his view of constitutional interpretation no matter what. Thomas called out Scalia on the California medical marijuana case because Scalia was being a partisan hack, whereas Thomas came up on the correct side of that case because he stuck with his framework.

Anyway, I'm out of here for now, gotta go return my final exam to campus. I'd go get hammered after that but I'm so exhausted all I want to do is sleep for the next day and a half.
 
2012-12-14 01:47:37 PM

rynthetyn: See, I actually respect Thomas even though I don't agree with him most of the time, because unlike Scalia he'll stick with his view of constitutional interpretation no matter what. Thomas called out Scalia on the California medical marijuana case because Scalia was being a partisan hack, whereas Thomas came up on the correct side of that case because he stuck with his framework.


Fair enough. He is the one i like/respect least on the court, but de gustibus non disputandum.

Anyway, I'm out of here for now, gotta go return my final exam to campus. I'd go get hammered after that but I'm so exhausted all I want to do is sleep for the next day and a half.

Once more good luck, and congrats on being done with it!
 
2012-12-14 02:45:21 PM

Teiritzamna: rynthetyn: See, I actually respect Thomas even though I don't agree with him most of the time, because unlike Scalia he'll stick with his view of constitutional interpretation no matter what. Thomas called out Scalia on the California medical marijuana case because Scalia was being a partisan hack, whereas Thomas came up on the correct side of that case because he stuck with his framework.

Fair enough. He is the one i like/respect least on the court, but de gustibus non disputandum.

Anyway, I'm out of here for now, gotta go return my final exam to campus. I'd go get hammered after that but I'm so exhausted all I want to do is sleep for the next day and a half.

Once more good luck, and congrats on being done with it!


Thanks. Exam's turned in, I think my brain is about to shut itself down.
 
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