Scotus

[Count Bobulescu]

Here’s the one graf plain english version of the health care decision, from the SCOTUSblog, and then the full 193 page opinion.

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

Full opinion.

http://www.theatlantic.com/politics/...l-text/259102/

[Count Bobulescu]

There is a lot of second guessing going on over the role Chief Justice John Roberts played in the Obamacare decision last week.

PALACE INTRIGUE - WashPost A1, "High court speculation: Did Roberts switch vote?" by Robert Barnes and Del Quentin Wilber: "Some wondered whether [Chief Justice John] Roberts originally had joined the court's four conservatives, pointing to oddities in the opinion. The dissent offered by the conservative justices with whom Roberts usually sides in ideological disputes - Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. - read more like an opinion for the court that had been abandoned, said David E. Bernstein, a law professor at George Mason University.

"The dissent did not engage in a debate with the controlling opinion offered by Roberts, as is usual in Supreme Court judgments. It contained a long section on whether the law can be severed from the individual mandate, unnecessary if a majority had already found the mandate constitutional. It went to great lengths to establish the reasons the four thought the commerce clause did not offer the powers the Obama administration claimed. It was territory that Roberts already had largely covered in his opinion." http://wapo.st/N0VKGz

--THE LEAD EDITORIAL of yesterday's Wall Street Journal, "The Roberts Rules," had an even juicier clue: "One telling note is that the dissent refers repeatedly to 'Justice Ginsburg's dissent' and 'the dissent' on the mandate, but of course they should be referring to Ruth Bader Ginsburg's concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.
"The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court's institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties."

[Count Bobulescu]

A week out from the health care decision, unprecedented leaks from the Court about how the decision was arrived at are getting nearly as much attention as the decision itself. Here are two more pieces.

The “narrative” of judicial intrigue

NOTE TO READERS: Ordinarily, this blog does not deal in ”scoop” journalism, although we have been known to be first on some things. We focus more on what the Court does than on whether the Justices have good manners or like each other, or on what they do in their free time. Now and then, though, someone else’s “scoop” comes along, and seems to come from inside the Court — giving it apparent credibility — and appears to have the potential to affect the way the Justices actually work together. This post is about such a story.
———————
Commentary
The Supreme Court Justices are scattering from Washington this week, perhaps in pursuit of a respite not only from a heat wave, but also from the rigors of a very difficult Term. The atmosphere that set in after they closed the Term on Thursday instantly became rather rancorous. And a contributing factor was a single news story. As the Court’s summer recess unfolds, it may become clear whether this news story has staying power, or whether it will be forgotten by October. If it is not forgotten, it may make life more difficult within the Court, perhaps for some time to come. It might even bring a crisis of leadership for Chief Justice John G. Roberts, Jr.

The story appeared on CBS-TV, and on its website, last Sunday. Reported by on-air correspondent Jan Crawford, the story was carried on the network’s web address under this headline: “Roberts switched views to uphold health care law.” The story said it was based upon “two sources with specific knowledge of the deliberations” that led up to the health care decision. It also referred to those sources as “knowledgeable.” No doubt to disguise the identity of its actual sources, it said that word of Roberts’s “switch” was “known among law clerks, chambers’ aides and secretaries.” But teasingly, it implied at one point that it had a quote from ”one justice,” and talked about Roberts having “stirred the ire of the conservative justices.” Someone inside the Court, the story appeared to be saying, had been talking.

It may have been the result of the enterprise of the reporter, the initiative of one or both of those “two sources,” or perhaps a combination. (Reporters often follow a two-source rule, not wanting to go with only one, but the reader and listener can never be sure just how close to actual involvement a claimed source was.) Someone “with specific knowledge of the deliberations” sounds quite authoritative but, without more, the story has to be taken partly on faith, even if one assumes the reporter had no personal agenda in the project.

Read more.

http://www.scotusblog.com/2012/07/th...e/#more-148427

Supreme Court observers are shocked at the leaks that are flowing from the high court's chambers in the wake of its landmark healthcare decision.

In contrast to Congress, which leaks like a sieve, and the White House, which has dripped out tidbits of information, the court has a reputation as leak-proof, which is a key part of its above-the-fray image.

Read more.

http://thehill.com/blogs/healthwatch...-is-the-leaker

[Count Bobulescu]

When the most expected decision of the year, “Obamacare” that the networks had spent weeks preparing for was issued on June 28, there was immediate confusion. Two networks, Fox and CNN in particular, messed up and reported the wrong result. SCOTUSblog publisher Tom Goldstein gives a blow by blow account of what went wrong over a period of just nine minutes at SCOTUS and the White House.

Note to mods, SCOTUSblog is published under a Creative Commons license.

We’re getting wildly differing assessments
By Tom Goldstein on Jul 7, 2012 at 10:04 pm

The announcement of the Supreme Court’s decision largely upholding the Patient Protection and Affordable Care Act on Thursday, June 28 precipitated a genuine media drama. Millions tuned in to get the result in real time, and were rewarded with the spectacle of two major news networks reporting the story incorrectly. Indeed, the President himself was in limbo while his staff raced to find out whether the Court had struck down his signature policy initiative.

I have taken a deep dive into those events; my first effort at real journalism. The following is the story of what happened at the Supreme Court, SCOTUSblog, CNN, Fox News, and the White House that day between 10:06 (when the Court released the opinion) and 10:15 (when CNN reversed itself and reported that the mandate had been upheld). Everything is based on interviews with those directly involved; nothing is second hand.

Two quick notes. It’s really long – our second longest post ever, at 7000 words. (Take solace in the fact that the first version was 9650 words, for just the first two minutes.) And special thanks go out to our terrific Manager, Kali Borkoski, for her tireless work in compiling a spreadsheet that tracks most of these events (and many hundreds more that didn’t make the final cut) second-by-second.

10:00 am last Thursday – Places please

As the Marshal of the Court gavels the Courtroom of the Supreme Court to order, the Justices take the bench. Solicitor General Don Verrilli – who argued the health care case for the federal government – sits at the counsel table just to the right of the lectern, only a few feet away. Verrilli is poker-faced, but he carries the weight of the world on his shoulders. Charged with defending the Act, he faced relentless and withering questioning from the Court’s conservative justices during oral argument, and then had his performance criticized by hundreds of armchair advocates.

Continue reading »
http://www.scotusblog.com/2012/07/we...s/#more-148757

[Count Bobulescu]

Hot new book on SCOTUS & POTUS out today, just in time for the beginning of the new SCOTUS session on Oct 1.

JEFFREY TOOBIN, staff writer for The New Yorker and senior legal analyst for CNN, in "The Oath: The Obama White House and the Supreme Court," out Tuesday from Doubleday : Chief Justice John "Roberts was a conservative and lifelong partisan Republican. ... Roberts had dual goals for his tenure as chief justice - to push his own ideological agenda but also to preserve the Court's place as a respected final arbiter of the nation's disputes. ... A complete nullification of the health care law on the eve of a presidential election would put the Court at the center of the campaign ... Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral if not its legal authority. ... Gradually, then with more urgency, Roberts began looking for a way out. ...

"[T]he tax argument stayed with the chief justice . In April and May, it started to become apparent to the other justices that Roberts was going 'wobbly' in his determination to overturn the law. Voters are never final until the decision are announced in open court. Votes at conference are by definition tentative. It is well within the bounds of acceptable behavior for justices to change their minds once opinions being circulating. Still, that rarely happens. But now, it appeared it was happening with Roberts - in the most important case of his tenure as chief justice. What happened next was unprecedented in recent Supreme Court history. For pending cases, the Court has a nearly perfect record for avoiding leaks. But conservatives on the Court - especially law clerks - were so outraged that Roberts might betray them that they started to talk. ...

"The four conservatives had overplayed their hand with the chief justice. By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground. ... [Justice Antonin ] Scalia was enraged at the chief. ... With all the changes, the cross-references among the various opinions became confused. ... By a vote of 5-4, the Court would uphold the heart of the Affordable Care Act. ... [F]or Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. ... Roberts at a minimum laid down a marker on the scope of the commerce clause. ... Roberts's opinion is potentially a significant long-term gain for the conservative movement. ... Roberts bought enormous political space for himself for future rulings. ... Did Roberts, by his late switch in the health care case, poison his relations with his conservative allies on the Court? That is very unlikely." $16.26 on Amazon; $14.99 Kindle pre-order http://amzn.to/OPdV5g

--"Notes": "This book is based principally on my interviews with the justices and more than forty of their law clerks. The interviews were on a not-for-attribution basis - that is, I could use the information provided but without quoting directly or identifying the source."

--Footnotes: Justice Elena "Kagan and I were classmates and friends at [Harvard] law school." ... "Immediately after the [health-care] argument, no one was more critical of [Solicitor General Don] Verrilli's performance, or more wrong about its impact on the justices, than I was.

"

Here’s a WaPo review of Toobin’s book by another law prof.

http://www.washingtonpost.com/entert...y.html?hpid=z8

Jeffrey Toobin's latest book portrays Supreme Court Justice Antonin Scalia as increasingly cranky and partisan — and infuriated with Chief Justice John Roberts over the court's recent decisions on healthcare and immigration.

Toobin, who writes for The New Yorker and also covers the court for CNN, credits Scalia for a sea change in how both sides of the political spectrum think about the law. But he says the justice's bombast has become off-putting to more even-tempered colleagues.

Toobin's latest book, "The Oath," chronicling the Roberts court and the Obama presidency, is being released today. Here are 5 key takeaways:

http://thehill.com/blogs/healthwatch...-roberts-obama

[Count Bobulescu]

First Monday in October is the traditional opening of the new term for SCOTUS. So far this year the docket is only about half full, meaning the court has yet to decide on the remainder of the cases it will hear, so it’s impossible to say now whether this year will be as notable as last.


One of the most interesting cases of the October 2012 SCOTUS term will be
Kiobel v. Royal Dutch Petroeleum.

It will be the first case heard in the new term beginning October 1.

It has the potential to have far reaching implications for human rights in international law. It involves Nigerians who claim that three foreign oil companies arranged for the Nigerian Government to use it’s military forces to to suppress opposition to oil drilling in the Ogoni region of Nigeria. The case has been bouncing around before the lower courts for over a decade. There is certainly an indirect link, but I don’t know if there is a direct link from this case to the 1995 execution of Nigerian environmental activist Ken Saro-wiwa that caused Nigeria to be suspended from the British Commonwealth for three years.

The law at issue, the Alien Tort Statute (ATS) has been on the books since 1799, but has only been litigated in the modern era since the 1980‘s. After the court originally took the case it put it on hold to determine whether the ATS actually applied in this instance, and asked the parties to file additional briefs on that issue.

At this point the case has gotten quite complex, so here’s an explainer, “Kiobel Made Simple”, courtesy of SCOTUSblog.

http://www.scotusblog.com/2012/07/kiobel-made-simple/

America’s very first Congress, which started meeting in 1789, passed a law that has been given a new life in the Nation’s courts since the 1980s as the world searched for legal ways to deal with human rights abuses such as torture and killing that occurred around the world. At its next Term, the Supreme Court is expected to decide whether that law gives federal courts in the U.S. the authority — in essence — to reach across the seas and judge violations of international law that occur entirely in another country. If the Justices find that the law goes that far, they are then likely to decide whether corporations can be sued for such human rights violations.


The law is called the Alien Tort Statute. The word “alien” means a person who is not a U.S. citizen. Those individuals are the only ones who have a right to file a lawsuit under that law. The word “tort” means misconduct or wrongdoing for which the law provides a remedy. Under this old law, foreign nationals may sue in federal courts in the U.S. for “torts” that violate either international law or a treaty that the U.S. has signed.

Here’s more. Just a list of the 80+ amicus briefs filed gives a flavor of the breadth of interest in this case. The Obama Admin on one side, governments of UK, Germany, Netherlands, plus BP, Coca Cola and other corporations on the opposite side.

http://www.scotusblog.com/case-files...tch-petroleum/

[Count Bobulescu]

The Supremes made big news on Friday. They voted to to hear two cases, one from NY, the other from Ca that together have the potential to resolve all the outstanding issues on gay marriage.

The Ca case in particular has the potential, depending on how broad or narrow the ruling is, to overturn the decisions of voters in thirty mostly red states who enacted various state constitution prohibitions on gay marriage. The Ca case is also notable because it has two lawyers on the same side, (against Ca), David Boies and Ted Olson who were on opposite sides in Bush v. Gore.
The cases will likely be heard in March and decided in June.

Here’s some reporting. First up, the always on the button Scotusblog.

About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider — but not necessarily to decide — some of the most important constitutional issues at the heart of that national controversy. Each side gained the opportunity to make sweeping arguments, for or against such marriages. But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so.

The rather wordy pair of orders the Justices issued at 3:13 p.m. Friday accepted for review core questions on the power of states and of Congress to pass laws that either forbid, or discourage, same-sex marriage, when such laws are passed either to express disapproval of homosexuality or to try to protect the traditional view that marriage should be open only to a man and a woman. But, on both of the granted cases, the Court told the lawyers to be prepared to argue points that could keep the Court from reaching those constitutional questions.

http://www.scotusblog.com/2012/12/on...-options-open/

The Supreme Court put itself at the center of the nation’s debate over whether gay couples have the same fundamental right to marry as heterosexuals, agreeing Friday to review state and federal efforts to preserve a traditional definition of husband and wife.

In agreeing to hear cases from California and New York, the court raised the possibility of a groundbreaking constitutional decision on whether the right to marry may be limited because of sexual orientation. At the same time, the justices also will have the ability to issue narrower rulings on a subject that continues to divide the American public.

http://www.washingtonpost.com/politi...y.html?hpid=z1

WASHINGTON — The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.
The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.
The court’s move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After the elections last month, the number of states authorizing same-sex marriage increased by half, to nine.

http://www.nytimes.com/2012/12/08/us...iage.html?_r=0

Over and over in American jurisprudence, the members of our Supreme Court have faced a decision: should they write themselves into history? Or duck?

Friday's announcement that they've placed two same-sex marriage cases on their docket suggests that they won't duck this time. United States v. Windsor and Hollingsworth v. Perry are a matched set, each turning on when government in the United States may discriminate on the basis of sexual orientation and when "equal protection of the laws" forbids such discrimination.

http://www.theatlantic.com/national/...-cases/266061/

Here’s a 6 minute TV Q&A.

http://www.pbs.org/newshour/bb/law/j...tus_12-07.html

[Count Bobulescu]

Next week will be a big one at SCOTUS for the issue of gay marriage. Oral argument is set to be heard in two cases on Tuesday and Wednesday mornings, with decisions expected by the end of June. Collectively, these cases have the potential to resolve all the outstanding issues on gay marriage. depending on whether the justices tailor their decisions broadly or narrowly. It’s a measure of the anticipation that the line for seats for the public for Tuesdays hearing began on Thursday night. I couldn’t imagine that sort of carry on down at the Four Courts

Spectators seeking to get into the Supreme Court chamber for next week’s oral arguments on the same-sex marriage cases began lining up on Thursday at about 9 p.m. — more than four days before the first argument, Tuesday at 10 a.m.

http://www.scotusblog.com/2013/03/li...age-arguments/

Thursday’s coverage of the Court primarily looked ahead to next week, when the Court will hear oral arguments in the same-sex marriage cases: United States v. Windsor, the challenge to the federal Defense of Marriage Act, and Hollingsworth v. Perry, the challenge to California’s Proposition 8. Peter Landers of the Wall Street Journal Law Blog and Michael Doyle of McClatchy Newspapers provide an overview of the major issues involved in the cases, while at the Constitutional Law Prof Blog, Allison Reddy summarizes the legal arguments in the amicus brief filed in support of Edith Windsor by the Cato Institute and Constitutional Accountability Center. Writing in the Wall Street Journal, Michael McConnell argues that the Court lacks jurisdiction to hear the Proposition 8 case, while in The Washington Post, George Will argues that DOMA should be held unconstitutional on federalism grounds. Ari Shapiro at NPR traces the timeline of gay rights cases, from Bowers to the present. Mark Tushnet has additional commentary on the Proposition 8 case at Balkinization. And at The New Yorker, Amy Davidson considers the details of Edith Windsor’s life, suggesting that her biography “isn’t so different from those of the Justices.”

http://www.scotusblog.com/2013/03/friday-round-up-169/


These two SCOTUSblog links on each of the cases have enough sublinks to keep you reading for a whole wet weekend in Kinnegad.

http://www.scotusblog.com/case-files...itcher=desktop

http://www.scotusblog.com/case-files...itcher=desktop

[Count Bobulescu]

Court to tackle California’s ban on same-sex marriage: In Plain English

At ten o’clock tomorrow morning, the Justices will hear one hour of oral arguments on the constitutionality of California’s Proposition 8, which amended that state’s constitution to prohibit same-sex marriages. The Court will then return on Wednesday morning to hear nearly two hours of arguments on the federal Defense of Marriage Act (DOMA), which defines marriage for federal laws and programs – including things like income taxes, estate taxes, and Social Security survivors’ benefits – as a union between a man and a woman only.

Under any circumstances, the same-sex marriage cases would shine a spotlight squarely on the Court, but that spotlight will be even brighter given the recent coverage of the dramatic growth in public support for same-sex marriage, reflected not only in recent polls but also in statements by Republican Senator Rob Portman – who was on Mitt Romney’s short list for potential vice-presidential candidates – and former President Bill Clinton, who signed DOMA into law in 1996. Let’s start with the Proposition 8 case – which currently goes by the name of Hollingsworth v. Perry – and talk about the issues in the case in Plain English.

http://www.scotusblog.com/?p=161661


Links to some but not all pieces referenced below are at bottom. For full access go to

http://www.scotusblog.com/2013/03/monday-round-up-162/

Previews of the arguments come from Joan Biskupic of Thomson Reuters, Howard Mintz of the San Jose Mercury News, Robert Barnes of The Washington Post, Geoffrey Fowler and Jess Bravin of The Wall Street Journal, Emily Bazelon of Slate, and Warren Richey of The Christian Science Monitor (here, here, and here). Mark Sherman of the Associated Press discusses a range of potential outcomes, while Adam Liptak and Alicia Parlapiano of The New York Times do so with a graphic on the Court’s options. The Wall Street Journal‘s Jess Bravin reports on the longstanding personal and professional relationship between attorneys Paul Clement and Ted Olson, who will argue on opposite sides of this issue next week; in the Los Angeles Times, Timothy Phelps profiles Olson, exploring the effect of the Perry case on the former Solicitor General’s life. Coverage of the shift in public opinion on same-sex marriage – and how this shift may affect the Court’s thinking – comes from Brad Knickerbocker of The Christian Science Monitor, as well as Lila Shapiro at The Huffington Post. Both Adam Liptak of The New York Times and Michael Tackett of Bloomberg explore how analogies to Roe v. Wade, Loving v. Virginia, and Brown v. Board of Education are influencing the debate.

This weekend also saw multiple articles on the advocates and arguments against same-sex marriage, including profiles by Sheryl Gay Stohlberg of The New York Times and Richard Wolf of USA Today, as well as NPR‘s coverage of the moral objections in the briefs against same-sex marriage. At the same time, NPR’s Nina Totenberg discusses how Ken Mehlman, President Bush’s former political director, led the effort behind the amicus brief of prominent Republicans in favor of same-sex marriage; this blog‘s Lyle Denniston provides a more general overview of the amicus briefs in the challenge to Proposition 8. Coverage of the line for seats at oral arguments, which began forming on Friday, come from this blog‘s Lyle Denniston (with an update by Marty Lederman), NPR‘s Elise Hu, the Huffington Post‘s Ryan Reilly and Will Wrigley, and Jada Smith at The Caucus blog of The New York Times.

http://newsandinsight.thomsonreuters..._Court_legacy/

http://www.mercurynews.com/samesexma...-supreme-court

http://www.washingtonpost.com/politi...3_story_1.html


http://www.slate.com/articles/news_a...watch_for.html

http://www.csmonitor.com/USA/Justice...entryLeadStory

http://www.csmonitor.com/USA/Justice...riage-benefits


http://www.csmonitor.com/USA/Justice...o-gay-marriage


http://hosted.ap.org/dynamic/stories...MPLATE=DEFAULT

http://www.nytimes.com/interactive/2...iage.html?_r=0

http://online.wsj.com/article_email/...jEyNDIyWj.html

http://www.latimes.com/news/nationworld/nation/la-na-olson-profile-20130324,0,3825370.story

JEFFREY TOOBIN, lead item in The New Yorker's "Talk of the Town" -- "Wedding Bells ": "Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder-and, eventually, impossible-to justify discriminating against them in others. ... This week, we will begin to find out whether the Justices will impede or accelerate that process. ... When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that's not going to happen.. ... Though the battles continue, the war is over."

http://nyr.kr/Zkehab

http://www.newyorker.com/talk/commen...printable=true

[Count Bobulescu]

You can listen to and/or read audio and transcript of Monday’s oral argument at SCOTUS on the California Prop 8 same sex marriage case. Oral lasts 90 minutes.


Audio here.
http://www.supremecourt.gov/oral_arg...rgument=12-144

Transcript here.
http://www.washingtonpost.com/wp-srv...t.html?hpid=z2

[Count Bobulescu]

Recap of Tuesday’s events.

The Proposition 8 oral argument

Much will be written about the Proposition 8 oral argument. The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.
Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

http://www.scotusblog.com/2013/03/th...oral-argument/

Argument recap: On marriage, Kennedy in control

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass. He appeared to be troubled about the Court entering “uncharted waters,” on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options. So he openly wondered why the Court had agreed even to hear this case.
Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.

http://www.scotusblog.com/2013/03/ar...dy-in-control/



What will the Court do with Proposition 8? Today’s oral argument in Plain English

After more than an hour of oral arguments this morning in Hollingsworth v. Perry, the challenge to the constitutionality of California’s ban on same-sex marriage, it came down to this: attorney Charles Cooper, representing the proponents of that ban, Proposition 8, returned to the lectern for his ten minutes of rebuttal time. He immediately confronted a question from Justice Anthony Kennedy, whom many regard as the critical vote in this case. Kennedy told him bluntly to “address why you think we should take and decide this case.” And with that, the Justice may have confirmed that the real question before the Court is not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all – a prospect that would be (to say the least) anticlimactic but seemed to be a real possibility by the end of the morning.

http://www.scotusblog.com/2013/03/wh...plain-english/


Other media coverage here.

Media coverage also includes statements from the lawyers representing the two same-sex couples in Hollingsworth. The Wall Street Journal has published an op-ed written by Ted Olson and David Boies, the lawyers leading the challenge to Proposition 8, in which they argue that marriage is a fundamental right and that states should not remain free to deprive same-sex couples of that right for as long as they wish. ABC News has video coverage of Ted Olson introducing the plaintiffs in the case and answering questions about oral arguments. Debra Cassesns Weiss of the ABA Journal profiles Charles Cooper, the lawyer defending Proposition 8 before the Court.

At Bloomberg, Laurie Asseo and Greg Stohr recap today’s oral arguments, while at Bloomberg View Cass R. Sunstein outlines the four possible paths for same-sex marriage after this week’s oral arguments. Ilya Shapiro at Cato at Liberty also provides analysis of the oral arguments and the potential outcomes in the case. At NPR, Nina Totenberg (audio) summarizes the three key points of today’s oral arguments, while Liz Halloran highlights the individual Justices’ apparent positions on five key questions. Other coverage of today’s arguments comes from Joe Palazzolo and Jacob Gershman at The Wall Street Journal Law Blog (subscription required), Mark Sherman for the Associated Press, Adam Liptak of The New York Times, The Washington Post’s Robert Barnes and Carol Morello, The BLT’s Tony Mauro, Michael Doyle at McClatchy Newspapers, and Lawrence Hurley and David Ingram at Thomson Reuters.

http://www.scotusblog.com/2013/03/ev...on-8-argument/

A 14 minute TV report on the days events. 4 minutes of video, plus 10 minutes of discussion.
http://www.pbs.org/newshour/bb/law/j...tus_03-26.html

Two attorneys debate for nine minutes.

http://www.pbs.org/newshour/bb/law/j...op8_03-26.html

8 minutes of radio.

http://www.npr.org/2013/03/26/175361...marriage-issue

5 minutes of radio.

http://www.npr.org/2013/03/26/175396...osition-8-case

[Count Bobulescu]

Plain English discussion of the issues at debate in today’s oral argument.

On Wednesday morning at ten o’clock, the Court will begin its second day hearing oral arguments in cases involving same-sex marriage. But when the Chief Justice summons the lawyers in United States v. Windsor to the lectern on Wednesday, the Court will not be questioning them on whether there is a constitutional right to same-sex marriage, but instead about whether Congress can pass a law that treats same-sex couples who are already married differently from opposite-sex couples. Having said that, there is a very good chance that the reasoning on which the Court relies to reach its decision in the Windsor case will affect not only the question in Tuesday’s case, Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage, but also the broader question of a right to same-sex marriage. Let’s talk about the issues in the Windsor case in Plain English.

First, a little bit of background. In 1996, in response to a ruling by the Hawaii Supreme Court which suggested that there might be a constitutional right to same-sex marriage, Congress passed the federal Defense of Marriage Act (DOMA) by large margins in both houses. For purposes of over a thousand federal laws, implicating everything from immigration to federal estate taxes, DOMA defines “marriage” as a union between a man and a woman.

Like the Clinton and Bush administrations before it, the Obama administration originally defended the law against challenges in federal court. That ended in February 2011, when Attorney General Eric Holder announced that the President regarded the law as unconstitutional and had instructed the Department of Justice not to defend the statute any longer. Several House Republican leaders, in their role as part of the House’s Bipartisan Legal Advisory Group (BLAG), then stepped in to defend DOMA in court.

As various challenges to DOMA wound their way through the legal system, last year not one but two federal courts of appeals struck down the law as unconstitutional. And although the Supreme Court grants review of only about one percent of the cases that it is asked to hear every year, it has a near-perfect track record of granting review when a lower court rules that a federal law violates the Constitution. Thus, the question then became not whether the Court would weigh in on DOMA, but in which case.

http://www.scotusblog.com/2013/03/wi...plain-english/


Argument recap: DOMA is in trouble

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.
Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional state authority to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.

http://www.scotusblog.com/2013/03/ar...is-in-trouble/

You can listen to and/or read audio and transcript of Wednesday’s oral argument at SCOTUS on the DOMA, Federal Defense of Marriage Act, same sex marriage case.

Audio here.
http://www.supremecourt.gov/oral_arg...rgument=12-307

Transcript here.
http://www.supremecourt.gov/oral_arg...2-307_jnt1.pdf

[Count Bobulescu]

A final round up of reporting on the two days of oral argument on the same sex cases,

With the oral argument now over, predictions about the outcome of the case have followed. For this blog, Tom Goldstein estimates that the odds that DOMA will be struck down are roughly eighty percent, while Nancy Pelosi is “optimistic” for that outcome, according to The Wall Street Journal’s Siobhan Hughes. Overall, commentators expressed skepticism that DOMA will last much longer. Edward Adams reports on Bloomberg Law’s live blog: “Most major news organizations are taking the same approach in their early full-argument stories — DOMA is likely to be toast.” Reports for those major outlets include: Robert Barnes and Sandhya Somashekhar writing for The Washington Post; Adam Liptak and Peter Baker for The New York Times; Lawrence Hurley and David Ingram for Reuters; Tom Curry for NBC News; Bill Mears and Tom Cohen for CNN; and Fox News. (hat tip: Bloomberg) Also weighing in: Richard Wolf and Kevin Johnson for USA Today, writing that a “slim majority” of Justices “may be willing to overturn” DOMA; David G. Savage and David Lauter for The Los Angeles Times; Greg Stohr for Bloomberg; and Mark Memmott for NPR, accompanied by Nina Totenberg via audio clip sidebars.

http://www.scotusblog.com/2013/03/ev...doma-argument/

Reading tea leaves: Why the Court will uphold Proposition 8

This blog is pleased to have reactions to the oral arguments in Hollingsworth v. Perry and United States v. Windsor from guest contributors with a range of perspectives. This post has reactions from Michigan Solicitor General John J. Bursch. Solicitor General Bursch authored an amicus brief on behalf of Michigan in support of Dennis Hollingsworth et al.

Parsing Supreme Court oral argument transcripts to predict outcomes is a bit like using tea leaves to predict the future; neither method is very reliable. But at the risk of being left out of the prediction derby entirely, we can consider potential outcomes on a probability spectrum.
Highly probable: The Court will reject the government’s “eight-state solution.”

http://www.scotusblog.com/2013/03/re...proposition-8/

No case in the Supreme Court’s history was more extensively briefed than these two. Long gone are the days when advocates could saunter through a day or two of argument. Measured by modern standards, however, these arguments were as thorough as any since Brown v. Board of Education. The lawyers were at or near the top of their games. The bench was hot. The background American legal culture is saturated with scholarship on same-sex marriage.

The oral argument in Perry nonetheless reveals a Court worried that it does not know what it needs to know to decide the basic issue common to both cases. Justice Kennedy voiced this concern when he said (to Ted Olson), “the problem in the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, . . . it is a cliff.”

http://www.scotusblog.com/2013/03/co...ver-the-cliff/

Yesterday’s coverage of the Court was again dominated by the two same-sex marriages cases before the Justices this week. Other coverage focused on the two opinions that the Court issued yesterday.
The Justices heard argument yesterday in United States v. Windsor, the challenge to the federal Defense of Marriage Act. Allison collected early coverage of the argument in her evening round-up, and Kevin Amer posted audio highlights from the argument for this blog. Other coverage of the argument comes from Jess Bravin of The Wall Street Journal, Michael Doyle of McClatchy Newspapers, Chris Geidner of Buzzfeed, Kenneth Jost at Jost on Justice, Ryan J. Reilly and Mike Sacks of The Huffington Post, Ruthann Robson of Constitutional Law Prof Blog, and Damon W. Root of Reason. Coverage of a different kind comes from Arthur Lien, who has posted sketches from the argument at courtartist.com. Dana Milbank of The Washington Post focuses on the “particularly solicitous” treatment of Justice Kennedy in the argument, while Ilya Somin of The Volokh Conspiracy notes the ”unaccustomed positions on standing” taken by both liberal and conservative litigants in the marriage cases, and Amy Davidson of The New Yorker focuses on Justice Ginsburg’s “skim-milk marriage” comment. At Dorf on Law, Michael Dorf focuses on “two painful exchanges” on federalism, and suggests answers that opponents of DOMA might have given on the issue. Josh Gerstein of Politico focuses on an unusual phrase from Deputy Solicitor General Sri Srinivasan’s argument supporting the federal government’s standing, while Jennifer Epstein of Politico notes that President Obama’s position on the marriage cases in an interview yesterday was in some tension with the Solicitor General’s argument on standing.

http://www.scotusblog.com/2013/03/th...-round-up-171/


15 minutes of TV/
http://www.pbs.org/newshour/bb/law/j...oma_03-27.html


4 minutes of Radio.
http://www.npr.org/2013/03/28/175543...f-marriage-act

WAITING ON STATES COULD BE MESSY FOR SAME-SEX MARRIAGE. The Supreme Court seemed wary of imposing a sweeping decision on gay marriage in oral arguments this week, but as National Journal’s Ronald Brownstein writes, that approach could mean a longer-lasting patchwork on gay marriage than many now imagine. In the absence of national rules from Congress or the Supreme Court, the country often has let “the states experiment” with inimical courses for a very long time on questions at least as weighty—like, for instance, slavery. Read more

http://www.nationaljournal.com/polit...riage-20130327

CHANCES FOR DOMA’S SURVIVAL LOOKING SLIM. A majority of Supreme Court justices appeared ready to strike down the Defense of Marriage Act, which forbids federal recognition of same-sex marriages, during oral arguments for a challenge to the law on Wednesday. Justice Anthony Kennedy, usually the Court’s swing vote, said, “The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” and he indicated that he believes DOMA goes further than providing a uniform definition of marriage. CNN legal observer Jeffrey Toobin, who on Tuesday said he was no longer “in the business of making predictions,” ventured on Wednesday that “DOMA is in trouble.” Read more

http://www.nytimes.com/2013/03/28/us...t.html?hp&_r=0

MARCUS: Inching towards equality. “Listening to the Supreme Court hear arguments in the same-sex marriage cases was like watching a novice diver inch to the edge of the high board for the first time. Eventually, she'll probably take the plunge -- just not yet. In the meantime, though, she can execute an impressive maneuver from lower heights…[T]he justices seemed tempted to put off deciding the question of a constitutional right to same-sex marriage. But they appear, at least reading the oral-argument tea leaves, prepared to take the significant step of overturning the Defense of Marriage Act (DOMA) and granting full federal benefits to same-sex couples in states that recognize their marriages.” Ruth Marcus in The Washington Post.

http://www.washingtonpost.com/opinio...wpisrc=nl_wonk

But can political success be a setback to judicial gains? “While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official. The prospect that gay rights advocates may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act.” Peter Baker in The New York Times.

http://www.nytimes.com/2013/03/28/us...wpisrc=nl_wonk

BLOW: History in real time. “This is either to be America's Era of Enlightenment or Entrenchment. Will we move into the future guided by ancient religious texts or current scientific ones? Will we follow the dictates of supposed deities or the prescript of universal dignity?…[Y]ou should be free to have your faith govern your life but not to extend it to the governance of others' lives.” Charles M. Blow in The New York Times.

http://www.nytimes.com/2013/03/28/op...wpisrc=nl_wonk

Jeffrey Toobin at The New Yorker on the fight for — and against — gay marriage The fight for gay marriage is over — and gay marriage advocates have won. Having reported from the steps of the Supreme Court for the last two days, Jeffrey Toobin assess the mood around him: "Everyone knows that same-sex marriage is here to stay; indeed, it’s expanding throughout the country at a pace that few could have imagined just a few years ago. The Justices were not irrelevant to the process, but they weren’t central either. They knew that—and so did everyone else." Nowhere else was this mood more evident than in the oral arguments delivered in Tuesday and Wednesday, during which Justice Elena Kagan "had the temerity to tell what everyone knew to be the truth—that DOMA was a bigoted law designed to humiliate and oppress gay people."

http://www.newyorker.com/online/blog...social_retweet

Fifty years from now, when same-sex marriage is recognized in every American jurisdiction, our relatively enlightened descendants will cull through the transcripts and audio feeds of this week's oral arguments at the United States Supreme Court in Perry and Windsor and shake their heads in wonder and dismay. Look at how little time the learned justices spent exploring the intent and effect of the discriminatory laws, our grandchildren will say, and look at how much time they spent instead searching among the weeds for ways to avoid a definitive ruling about the constitutional rights of millions of people.

http://www.theatlantic.com/national/archive/2013/03/history-wont-be-kind-to-the-supreme-court-on-same-sex-marriage/274430/

There were no great surprises Tuesday morning during oral argument over Proposition 8, California's beleaguered same-sex marriage ban. None of the justices of the United States Supreme Court shared an epiphany on the topic. They are all precisely who we thought they were, who they have always been. This is the most conservative Court in 75 years -- the most conservative federal appeals court in the nation -- and it showed, both in the ideology of the justices' questions and in the reluctance they expressed to issue a broad ruling.

http://www.theatlantic.com/national/...rriage/274380/

The passage of the Defense of Marriage Act in 1996 was intended in part "to express moral disapproval of homosexuality." Less than two decades later, multiple states have blessed same-sex marriage.
What explains the rapid change?
John Roberts raised that question Wednesday at the Supreme Court. "I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case," he told a lawyer who wanted DOMA struck down. "You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you? .... Political figures are falling over themselves to endorse your side of the case .... I'm just trying to see where that comes from, if not from the political

http://www.theatlantic.com/politics/...me-out/274428/

It was a dramatic week for the nation and the Supreme Court. Scores of people slept in the snow in hopes of a ticket to argument; thousands more rallied in front of the Court to show their support for marriage equality, and often their own unions. ("IF GAY MARRIAGE WERE LEGAL," read one sign yesterday, "TODAY WOULD BE MY 31st ANNIVERSARY.") They were hoping for a clarion call for equality from the nation's highest court.
But when Chief Justice John Roberts said today, "The case is submitted," the law's engines of circumlocution took over. And such signs as could be read Tuesday and Wednesday suggest that those crowds should prepare for anticlimax, and perhaps disappointment.
Heartbreak is not out of the question.

http://www.theatlantic.com/national/...rriage/274420/


A decision in both cases is expected on the last Thursday in June.