Amid signs that the ruling was a very easy one to reach, the Supreme Court on Monday allowed the state of Michigan to deny a man accused of murder a legal defense that he previously had but then lost the right to use at a second trial.  Allowing the withdrawal of a mental defect defense after the fact, the Court ruled unanimously, did not violate the man’s constitutional rights to fair treatment.   It took the Court less than four weeks to prepare that ruling.

Justice Ruth Bader Ginsburg wrote for the Court in Metrish v. Lancaster (docket 12-547), a case that had been argued on the final hearing day of the Term, on April 24.   The decision, while interpreting generously the power of a state supreme court to cast aside a string of lower state court rulings allowing a legal defense, did not appear to make much new law on retroactivity doctrine.

This was a dispute over the availability of what is called the defense of “diminished capacity”– a legal argument, short of a claim of actual insanity, that an individual could not have formed the intent to commit a crime because of some mental defect at the time of the crime.  It is sometimes known popularly as “the Twinkie defense,” a label it got from a famous California murder case in which the accused claimed that his over-indulgence in sugary treats was a sign of a mental disturbance that reduced his capacity for self-control.

The Justices had ruled, in the 2006 case of Clark v. Arizona, that states did not have a constitutional duty to allow the accused to put forth a diminished-capacity defense to a criminal charge.  So the Court did not confront that issue anew on Monday; instead, the question it resolved was whether it violated the right to due process to take away that defense retroactively.    The Court found that it did not.

The case involved a former Detroit police officer, named Burt Lancaster (no relation to the late Hollywood actor of the same name), who had a history of mental disturbances.  He was charged with murdering his girlfriend after he told his mother that he was going to do so because the girlfriend had lied to him.   He shot her dead as she walked to a restaurant with a friend in Southfield, Michigan, in 1993.

At his first trial, he claimed actual insanity as well as a separate claim of diminished capacity.  Neither worked for him, because the jury convicted him of first-degree murder and of using a gun in the crime.  That conviction, however, was overturned because of the prosecutors’ use of racial reasons for excluding a black juror.

By the time of his second trial, however, the Michigan Supreme Court had ruled that the legislature had taken away the diminished-capacity defense.  So, when Lancaster’s defense lawyer tried to make that defense at the new trial, the judge said he could not do so.  Again, Lancaster was convicted, and was sentenced to life in prison, plus two years.

After failing in his challenge in state court, Lancaster took his case on to federal court, ultimately winning a decision by the Sixth Circuit Court that it was unconstitutional to deny him the chance to plead diminished capacity at his second trial, because that was a right he had at the time of his crime.

There was no doubt that the middle-level state appeals courts in Michigan had routinely recognized the diminished-capacity defense, and Lancaster had relied upon those decisions in his argument that the Michigan Supreme Court made an abrupt shift in the law and applied that change unfairly to him.

In overturning the Sixth Circuit’s ruling in Lancaster’s favor, the Justices on Monday accepted the argument that the Michigan Supreme Court itself had never explicitly authorized the lower courts to recognize the defense, and the argument that, in taking it away and applying it retroactively, the state court had simply relied upon an intervening law by the legislature failing to mention this particular defense.

Noting past precedents that had discussed retroactive application of court decisions, and raising some doubt about such an application, Justice Ginsburg said the decision by the state court in Lancaster’s case was “a far cry” from that situation.

Near the close of the Ginsburg opinion, the Court laid out what appeared to be a summation of the legal theory it was applying to deny Lancaster’s challenge.  The opinion said: “where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute,” there is no surprise to those who lose a right and there is no violation of due process.

“This Court,” Ginsburg wrote, “has never found a due process violation in circumstances remotely resembling Lancaster’s case.”

By treating it as entirely unique on its facts and history, the Court found Lancaster’s claim failed to justify the Sixth Circuit’s ruling that his rights had been violated.

This decision, in plain English:

When an individual is accused of crime, prosecutors have to prove to a jury that the individual had actually intended to break the law, and thus should be held accountable for the crime.  That is what lawyers and judges call “guilty knowledge.”  But the law also recognizes that some individuals do not have the mental capacity to control themselves, and they can use that lack of capacity as a defense to a criminal charge.

One such claim is outright insanity: a rather complete inability to form an intent to commit a crime, because of mental disease.  But a majority of states also recognize a somewhat reduced claim of mental incapacity — “diminished capacity.”   In general, that is a claim that the individual, at the time of the crime, was afflicted with a mental disturbance that did not render him insane, as such, but significantly reduced his capacity to control his own behavior.

That is the legal defense that a Michigan man, Burt Lancaster, had made unsuccessfully at his first trial, but was denied any chance to claim it at a second trial, because the Michigan Supreme Court — in between the two trials — had ruled that the legislature had taken away that claim by simply not mentioning it in a broad rewriting of state criminal laws.

Lancaster won a decision in a federal appeals court that it was unconstitutional to take away that defense, at his second trial, because the withdrawal came as a surprise after the defense had been widely recognized in Michigan.  But the Supreme Court on Monday overturned that decision, finding that the Michigan Supreme Court was entirely justified in interpreting state law as having withdrawn the defense in the interval between Lancaster’s two trials.

In association with Bloomberg Law

The Obama administration is making a sustained effort to keep the youngest girls who are sexually active from having easy access to the pregnancy-preventing drug known as “Plan B.”    Taking another step toward what may be an ultimate test in the Supreme Court, the administration will ask a federal judge in New York at a hearing Tuesday to put on hold his decision to make Plan B available over the counter — without a prescription –to women of all ages.

Such access, the federal lawyers will argue, should be open only to those who are fifteen years old or older — if they can prove their age.  That will run counter to the ruling earlier this month by Senior U.S. District Judge Edward K. Korman of Brooklyn, that the government by Wednesday must lift all restrictions on retail sales of at least one of two current versions of Plan B.

In advance of Tuesday’s hearing, however, the judge has said that he will give the administration time to ask the Second Circuit Court to delay his ruling, if he does not do so, while the government challenges it in a planned appeal.

President Obama and health officials in his government have taken up not far from where the Bush administration left off in seeking to restrict drugstore sales of Plan B — a medication that has proven to be quite effective in preventing pregnancy if taken within three days after unprotected sexual intercourse.   The main ingredient in both current versions of Plan B is a synthetic hormone, levonogesterol.  In the first version, known simply as Plan B, the drug is taken in two doses.  More recently, it has become available in a one-dose version, called Plan B One-Step.

Plan B is considered to be an “emergency” contraceptive because it is available to reduce the risk of pregnancy even after sexual activity without having taken any preventive action.

From its introduction in 1999, Plan B has been at the center of a cultural controversy over its perceived implications for teenagers beginning to engage in sexual activity.  Those who support access to it argue that teens are having sex at younger ages anyway, and need protection against pregnancy.  Critics of Plan B argue that it encourages teens to start having sex earlier, because they think they now can do so without risk.

Initially, the drug was available only with a doctor’s prescription, for any woman seeking it.  The government in 2006 began allowing women who were eighteen or older to obtain it without a prescription.  Younger women still needed a doctor’s authorization.   In 2009, in an earlier phase of the court case over Plan B that began in 2005, Judge Korman ordered the Food and Drug Administration to lower the no-prescription access age to seventeen, but eligible women still had to prove their age and could buy the product only from a pharmacy.   FDA agreed with that decision.

When Plan B One-Step — the single-pill version — gained FDA approval in 2009, the same age and other limitations still applied.

Those restrictions have been under continuous legal challenge by women’s rights advocates, who want Plan B to be made available over the counter with no age or other restrictions.  Judge Korman has been largely sympathetic to their pleas for wider access.

His 2009 decision, ordering FDA to reconsider its refusal to lift those age and sales limitations, accused the agency of acting under political pressure “emanating from the White House”– meaning, at that time, the George W. Bush White House.  The agency must consider the issue anew without yielding to such pressure, the judge declared then.

FDA did not act on the judge’s order for nearly three years, after President Obama took office.  In December 2011, the FDA decided that the one-pill version was “safe and effective and should be approved for non-prescription use for all females of child-bearing potential.”   That decision, however, was vetoed by Health and Human Services Secretary Kathleen Sebelius, who ordered the agency not to allow unrestricted marketing of Plan B One-Step to all ages. “If the application is approved,” Sebelius said at the time, “the product would be available, without a prescription or other point-of-sale restrictions, even to the youngest girls of reproductive age,” which she said might be as early as age eleven.  President Obama backed that conclusion.

That is where matters stood when Judge Korman returned to the issue in a ruling on April 5.   “This case,” he wrote, “is not about the potential misuse of Plan B by 11-year-olds.”  He added that Plan B was “among the safest drugs sold over the counter” and that, in any event, “the number of 11-year-olds using these drugs is likely to be miniscule….The invocation of the adverse effect of Plan B on 11-year-olds is an excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.”

While the judge said that the case was controversial because it involved access to a preventive medication “for adolescents who should not be engaging in conduct that necessitates the use of such drugs,” he said the legal issue was a straightforward one about whether the government should switch a prescription drug to over-the-counter availability, and whether consumers could understand how to use such a drug safely and effectively.  “The standards,” he added, “are the same for aspirins and for contraceptives.”

Secretary Sebelius’s veto of the FDA recommendation on Plan B One-Step, the judge wrote, “forced the agency to ride roughshod over the policies and practices that it has consistently applied in considering applications for switches in drug status to over-the-counter availability.”  He said that the decision by Sebelius was based on authority that she did not have, because Congress had given the FDA, not the HHS Secretary, the authority to judge when to allow over-the-counter sales of a drug.  And, he concluded, Sebelius’s order “was politically motivated, scientifically unjustified, and contrary to agency precedent.”

Judge Korman ordered the FDA to make a version of Plan B available without a prescription and with no age or retail sale restrictions within 30 days, but he said FDA could consider adding new labeling instructions on its use, and it could choose to limit over-the-counter access solely to the one-pill version — Plan B One-Step.

Technically, Judge Korman was not acting on Sebelius’s December 7, 2011, veto of the FDA approval of Plan B One-Step, but rather on the FDA’s denial five days later of a public petition to provide unrestricted retail access to Plan B — the original, two-pill version.   But, the judge said, once Sebelius had taken the position that the drug should not be available to younger girls, that dictated what FDA could do on the retail access issue for any version, and what FDA was then compelled to do in denying access was illegal and unjustified.

However, the distinction of what was technically in front of the judge last month forms part of the legal basis of the challenge that the Obama administration will be pressing at the scheduled hearing before the judge Tuesday.

It is important to note first, however, that the FDA itself took a new position on April 30, and that decision lowered the age of access to Plan B One-Step to girls who are fifteen years old — thus making it available without a prescription for all women fifteen years old and older.  The FDA said that it was now satisfied by the drug’s manufacturer — Teva Women’s Health, Inc. — that the one-pill version could safely be sold over the counter to girls as young as fifteen.  They will have to be able to prove their age, however, and the drug will be sold only with a label requiring the cashier to check the buyer’s age.    A study by Teva, the FDA said, showed that “women age 15 and older understood that the product was not for routine use and would not protect them against sexually-transmitted diseases.”

The FDA announcement took note of the order earlier in the month by Judge Korman to lift all retail restrictions for all ages, and insisted that its move to allow access to fifteen- and sixteen-year-olds for the first time was independent of the judge’s latest decision.  It was up to the Justice Department, FDA said, to decide what it would do about the judge’s April 5 ruling.

The following day, the Justice Department notified Judge Korman that it was going to appeal his decision.  The Department argued that the judge was wrong “for at least two reasons.”   First, it said that the judge only had before him a public petition related to Plan B access, so he had no authority to order access to Plan B One-Step.  Second, it said, the judge had no authority to issue a direct marketing order, but should have sent the case back to the FDA to either reconsider its denial or to provide a fuller explanation.

Because of those asserted errors, the Department said, it stands a good chance of persuading the Second Circuit Court to overrule Judge Korman.  In the meantime, it asked the judge to put his ruling on hold while the appeal proceeds and, if he were unwilling to do even that, it asked that he grant a temporary delay so that the government can ask the Second Circuit for a postponement.  The next steps will be the subject of Tuesday’s hearing.

In association with Bloomberg Law

Virginia went to the Supreme Court with one argument, and only one, for its policy of limiting access to state public records to people who live in Virginia.  That did not seem to work well at the argument in February, but that is not the test that counts.  The Court decided the case Monday, and Virginia won unanimously – primarily on its chosen argument.

The Court, in a decision written by Justice Samuel A. Alito, Jr., upheld the power of a state to limit records access to state residents, on the theory that this gives those individuals some help in monitoring the performance of state government agencies.  The case was McBurney v. Young (docket 12-17).

Vote in McBurney v. Young; opinion author boxed in red.

Public records are a valuable source of information, especially in the digital age, when information not only drives commerce, but many other kinds of human endeavor.  But the Court paid scant attention in its final ruling to the commercial side of records access, opting to keep its focus on a state’s choice to help its citizens keep track of how their public agents are performing.  That was what Virginia’s lawyer had relied upon in February, confessing that he was “agnostic” on any other possible implication of the state’s freedom-of-information law.

Two individuals from out of state — a Rhode Islander caught up in a child support case in Virginia and a Californian whose business depended on access to tax records — had challenged Virginia’s resident-access limitation, contending that it violated both the Constitution’s Privileges and Immunities Clause and its Commerce Clause.

Saying that the case should not be analyzed under the Commerce Clause, the Court said the restriction “does not regulate commerce in any meaningful sense.”

Turning to the other claim, the Court rejected it on the merits, concluding that the Privileges and Immunities Clause is only a limitation on state laws that are passed “for the protectionist purposes of burdening out-of-state citizens.”  Virginia’s law does not do that, because it was designed to provide “a service that is related to state citizenship.”

The law, Justice Alito wrote, “represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power.”  Its only effect on out-of-staters is merely “incidental.”

But, as an added reason for allowing the restrictions, the opinion said that Virginia’s citizens “foot the bill for the fixed costs underlying recordkeeping” by the state.

Most of the reasoning of the Alito opinion on the Privileges and Immunities Clause broke no new ground.  But the ruling also went to some lengths to reject the specific claim that it violates that Clause for a state to deny equal access to public information.  The Clause, it said, does not even apply to such a “broad right.”

When government chooses to open up its records, it does that by choice, not by constitutional compulsion.  “There is no constitutional right to obtain all the information provided by” freedom-0f-information laws.  No such broad right was recognized under the common law, and early American history does not support that notion, either.

Finally, it said such a broad right is not necessary “to the maintenance and well-being of the Union.”   The federal government only passed such a records-access law in 1966, the opinion noted, and Virginia did so two years after that.   “The Nation’s unity” did not suffer before such laws existed, Justice Alito commented.

The Court noted that at least seven other states have laws similar to Virginia’s in favor of resident access to public document files.

All nine Justices joined in the Alito opinion.  Justice Clarence Thomas wrote a one-paragraph concurring opinion, to repeat his argument that the Court should stop deciding Commerce Clause questions on the basis of what is called the “dormant Commerce Clause” — that is, the understanding that, in addition to granting Congress power to regulate commerce, the Clause also silently forbids states to engage in discrimination against interstate commerce.

This decision, in plain English:

Virginia is one of eight states that assure the public will have access to records made by state agencies in carrying out their public duties, but each of those states’ laws restricts such access to those who actually live in the state.   The passage of such “public information laws” is something that began about in the middle of the last century.   Only Virginia’s law, with its residents-only restrictions, was at issue in the decision the Court released on Monday.

The decision was unanimous in upholding that limitation.  Virginia’s legislature did not pass the law with the aim of interfering with business activity for out-of-state residents, the Court ruled.   Rather, it said, the law was passed to improve the opportunities of the people of the state to monitor how their own government carried out its public duties.   As a secondary reason for the ruling, the Court said that those records are maintained by the state with the money provided by its residents as taxpayers.

The decision did not rely upon any sweeping new legal declaration, but simply on the purpose that the Court found behind Virginia’s law.

In association with Bloomberg Law

Christopher Hansen of the American Civil Liberties Union argued today on behalf of the medical researchers, breast cancer groups, and cancer patients challenging the patents on two genes held by Myriad Genetics, a Utah-based company that for nearly twenty years has either owned or held the licenses for those patents.  Women who have mutations in those two genes, known as the BRCA1 and BRCA2 genes, have a significantly higher chance of developing breast or ovarian cancer, and they may be at risk of developing other kinds of cancers.  (Lyle Denniston of this blog reviewed the issues in the case in a “Made simple” post for this blog last year.)  He began his argument by asking the Justices to focus on one question:  what had Myriad actually invented?  He was willing to agree that Myriad had “unlocked the secrets” of the BRCA genes, but he emphasized that the “genes themselves are decisions made by nature, not Myriad.”  Thus, although Myriad should get the “credit” for isolating the BRCA genes, he concluded, it did not deserve a patent for that.

That argument seemed to find traction with several Justices, at least with regard to the “isolated DNA” that Myriad contends is covered by its patents.  (Myriad argues that the process of isolating the genes outside of the body requires human ingenuity, for which it is entitled to a patent; the challengers counter that the form and characteristics of the isolated DNA do not change just by removing them from the body.)  Thus, the Chief Justice repeatedly (and skeptically) pressed attorney Gregory Castanias, representing Myriad Genetics, to explain how the process of isolating the BRCA genes was any different from merely “snipping” them out of a chromosome, while Justice Sotomayor emphasized that Myriad could only obtain a patent if it had added to nature – which, her remarks suggested, she did not believe it had.  Other Justices echoed this line of thinking.  Justice Kagan, for example, asked Castanias whether the first person to isolate a human chromosome would be entitled to a patent and then extended that hypothetical to ask whether the first person who discovered the liver could get a patent on that.  And Justice Kennedy observed that Myriad’s reasoning could apply equally to a patent for atomic energy.

Although the Justices seemed to be moving in the direction of a holding that isolated DNA cannot be patented, it was also apparent that they had qualms about the broader implications of their decision and how they might limit it.  Justice Kagan was one of the first to raise these concerns, asking Hansen to explain what incentives a company like Myriad would have to make the very substantial investment (in this case, approximately $500 million before breaking even) to isolate the gene in the first place.  The Justices seemed unsatisfied with Hansen’s first answers, in which he tried to reassure the Court by noting that other laboratories would not have even tried to get a patent for the genes and that scientists would be willing to do the research because of the recognition that they would receive for important discoveries.  Justice Kagan suggested another, compromise possibility with which Hansen would agree – that “there are still things that [a company] could patent” (for example, the use of the isolated DNA, even if not the isolated DNA itself) “to make it worth [the company’s] while.”  Justices Kennedy and Sotomayor also expressed support for the position of the United States, which appeared as a “friend of the court” today, as another way in which the Court could strike a balance between, on the one hand, encouraging companies to incur the expenses required to make the initial advances and, on the other hand, making the genes available for researching and testing by other scientists:  the Court could hold that, although “isolated DNA” is not eligible for a patent, “complementary DNA (cDNA)” – synthetic DNA molecules, which can only be created in a laboratory with more human intervention – would be.

Even if the Court were to hold that “isolated DNA” cannot be patented, it isn’t clear what the impact of that decision might be.  Greg Stohr and Susan Decker of Bloomberg News reported last week last week that the impact on human gene research could be limited, but it could also affect other industries like agriculture and biotechnology.  Whatever the result, if (as they are for me) these concepts are difficult for you to understand, you can take some comfort that the Justices – although extraordinarily smart lawyers – seemed to have trouble understanding them too.  And the good news for us is that they – not we – now have to write an opinion to resolve those issues.  When they do, we’ll be back to cover it in Plain English.

In association with Bloomberg Law

Under any circumstances, the Court’s request for briefing on this question would not be something to take lightly.  But after yesterday’s argument in the Proposition 8 case, when it became apparent that there might well be five votes to hold that the sponsors of the California initiative lacked a legal right to defend the initiative in court, all eyes focused today even more closely on the first fifty minutes of oral argument, which the Court had set aside to consider the question of its authority to hear the case.  During the fifty-plus minutes of oral argument, several Justices did indeed express doubts about at least one of the propositions before them:  whether the Court lacked authority to hear the case because the United States – which had asked the Court to review the lower court’s decision striking down DOMA – agreed with the lower court that DOMA is unconstitutional; and whether the Bipartisan Legal Advisory Group, representing the House Republican leaders, did not have the legal right (known as “standing”) to be in the case.  But unlike yesterday, it did not look like there might be five votes on either proposition to keep the Court from moving on to the merits of the DOMA challenge.

When the Court did so, the Court seemed once again to divide along traditional ideological lines.  The Court’s four liberal Justices – Ginsburg, Breyer, Sotomayor, and Kagan – appeared ready to strike down DOMA.  On the other end of the ideological spectrum, the Chief Justice and Justice Scalia said nothing to suggest that they would do anything other than vote to uphold the law; Justice Alito asked at least one question that suggested some skepticism about DOMA’s constitutionality, but for the most part he too seemed a likely vote to uphold the law.  (Justice Thomas did not ask any questions, but we have no reason to believe that he would split from the other conservative Justices in this case.)  That left, as it so often does, Justice Anthony Kennedy as the probable key vote in the case.  And he seemed more sympathetic to the DOMA challengers today – but not necessarily willing to strike down the statute for the same reason that the four liberal Justices would.

When Paul Clement, representing the House Republican leaders, kicked off the oral argument on the constitutionality of DOMA, he began by emphasizing that states have the prerogative to define marriage for themselves; when – as in this case – the federal government does so only for purposes of federal law, it enjoys that same privilege.  What’s more, he added, Congress had done so in DOMA to guarantee that federal law would treat marriages uniformly in all states.  These arguments drew questions from all four of the Court’s liberal Justices.  Justice Ruth Bader Ginsburg, for example, disputed what she regarded as Clement’s efforts to minimize DOMA’s impact:  she complained that DOMA affected “every aspect of life” for same-sex couples and “really diminish[es]” what the state has acknowledged as a marriage.  And Justice Elena Kagan pressed Clement on whether, when it passed DOMA, Congress in reality might have been less concerned about uniformity and more concerned with expressing its “moral disapproval” of gays and lesbians.

But the most important skeptic on DOMA was Justice Kennedy.  And although he too seemed doubtful that uniformity was Congress’s primary goal in passing DOMA, he was even more concerned about whether Congress, under the Constitution, had the power to pass DOMA at all, given that marriage is something that the states have traditionally regulated.  Along those lines, he told Clement that through DOMA the federal government is intertwined with the everyday lives of Americans, and at a “real risk” of running into a conflict with the states’ power to define marriage.  Later on, he put it more bluntly, telling Clement that the question in the case is “whether the federal government has the authority to regulate marriages.”

Clement was followed by Solicitor General Don Verrilli, who quickly found himself between the proverbial rock and a hard place.  On the one hand, Justice Kennedy’s suggestion that Congress did not have the power to pass DOMA would give the government a path to victory.  On the other hand, the Solicitor General of the United States rarely (if ever) wants to appear before the Supreme Court and concede that the federal government should have fewer powers.  So Verrilli denied that there was any problem in principle with Congress defining marriage under federal law, and he reiterated that the real constitutional problem with DOMA is that it violates the Constitution’s guarantee of equal treatment by treating married same-sex couples differently from married opposite-sex couples.  But the Chief Justice and Justices Scalia and Alito seemed dubious about that argument.  Justice Alito pressed Verrilli to explain whether, under his rationale, a same-sex couple who are married under the laws of the state where they live would be treated differently than either a same-sex couple that has a domestic partnership, but cannot marry, in their home state or a same-sex couple whose state does not offer either domestic partnerships or marriage.  Or, asked Justice Scalia, would the federal government treat all three couples the same, regardless of the state laws on marriage?  And the Chief Justice suggested that, on Verrilli’s argument, even if Congress had intended “marriage” in the federal laws to refer to a marriage between a man and a woman, “[a]s soon as one state adopted same-sex marriage, the definition of marriage throughout the federal code had to change?”

After Verrilli’s fifteen minutes at the lectern, Roberta Kaplan had fifteen minutes to argue on behalf of Edith Windsor, the eighty-three-year-old widow who filed this challenge to DOMA.  Like Verrilli before her, she did not challenge Congress’s power to pass DOMA and instead tried to focus on what she characterized as the discriminatory purposes and effects of DOMA.  Some of the conservative Justices pushed back against that argument, including the Chief Justice, who seized on Kaplan’s comments about a “sea change” in attitudes towards gays and lesbians to ask her whether there is a “politically powerful” lobby “supporting the enactment of same-sex marriage in different states.”   That point could both undermine the challengers’ argument that courts should subject laws such as DOMA to a close review because gays and lesbians are a group that needs special protection and strengthen the House Republican leaders’ argument that issues relating to same-sex marriage are best decided by the political process, rather than the courts.

Even if Justice Kennedy ultimately agrees with the four more liberal Justices that DOMA should be struck down (which still remains an “if,” particularly when none of the four necessarily seemed inclined to agree with him that Congress lacked the power to enact the law), both opponents and supporters of same-sex marriage will be parsing the decision closely.  A decision holding that DOMA violates the Constitution because marriage is traditionally a matter for the states to regulate would have little if any impact beyond DOMA, because then the Court would not need to settle on a test to use to determine whether a law unconstitutionally discriminates against gays and lesbians – a test that could in turn be used in challenges to the constitutionality of state laws prohibiting same-sex marriage.

Of course, that result may never happen.  At least five Justices could conclude that the Court lacks authority to consider the challenge at all, or at least five of them may agree that DOMA either does or does not unconstitutionally discriminate against gays and lesbians.  Whatever happens, we’ll come back to cover it in Plain English.

[Disclaimer: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in this case. However, I did not participate in that brief.]

In association with Bloomberg Law

At the beginning of the argument, Cooper was only a sentence or two into his argument on the constitutionality of Proposition 8 before he was interrupted by the Chief Justice, who asked him to address the question that the Court had added to the proceedings:  whether Cooper’s clients have a legal right – known as “standing” – to be in the case at all.  Cooper then faced a barrage of questions from the Chief Justice and the Court’s four more liberal Justices which strongly suggested that, in their view, the proponents do not.  Has the Court ever allowed proponents of ballot initiatives to defend the initiatives in court, asked Justice Ruth Bader Ginsburg?  No, Cooper conceded, it had not.  When Cooper emphasized that state law had assigned the responsibility to defend the initiative to the proponents, Justice Elena Kagan asked whether the state could assign that responsibility to any citizen, or only to the proponents.  And Justice Sonia Sotomayor asked Cooper to explain what kind of injury – required for standing in federal courts – the proponents of Proposition 8 have suffered due to the failure by California officials to enforce the initiative.

On the question of the proponents’ standing, three of the four conservative Justices – Scalia, Kennedy, and Alito – who chimed in appeared inclined to find that the proponents did have a right to defend the initiative in court.  Justice Scalia, for example, asked Cooper a friendly question, noting that although (like the proponents) the Attorney General of California does not have any actual interest in seeing that the law is enforced, state law still says that she can defend it.  And later on, when attorney Ted Olson – representing the two same-sex couples challenging Proposition 8 – told the Court that the state can’t create standing by designating whoever it wants to defend the law, Justice Kennedy expressed concern that Olson’s position would give the state a “one-way ratchet” that would allow state officials to block initiatives that they don’t like.

But Chief Justice John Roberts responded, suggesting to Ted Olson – in what could be interpreted as a blueprint for a future challenge to Proposition 8 – that even if the proponents lacked the right to defend the initiative, a state official who doesn’t want to perform same-sex marriage would have such a right.

Eventually the discussion shifted over to the question that has been the focus of the case:  whether Proposition 8’s ban on same-sex marriage is constitutional.  Here too, however, it became clear that a decision from the Court on that question is hardly a sure thing.  At first, questions from the four more liberal Justices left little doubt that they would vote to strike down Proposition 8.  Responding to Cooper’s argument that the state’s interest in “responsible procreation” justifies limiting marriage to opposite-sex couples, Justice Kagan asked him to identify the potential harms that would occur if same-sex couples were allowed to marry.  And Justice Stephen Breyer pressed him to explain how allowing same-sex couples to marry would be different from allowing opposite-sex couples who cannot have children to marry; Justice Ginsburg later noted that opposite-sex couples in prison were allowed to marry, even though there was no possibility of procreation.

At the same time, comments and questions by the Chief Justice, Justice Scalia, and Justice Alito seemed to place them solidly in support of Proposition 8.  (Justice Thomas as usual did not ask any questions, but he presumably provides a fourth vote for that view.)  And there was no sign that any Justice was interested in deciding the case based on the reasoning suggested by the United States – that it violates the Constitution for California (and seven other states) to offer the rights and responsibilities of marriage to same-sex couples through domestic partnerships but prohibit them from actually getting married.

That left, as it so often does, Justice Kennedy as the critical vote in the case.  On the one hand, he expressed concern about the forty-thousand-plus children living with their same-sex parents in California, emphasizing that they want their parents to be recognized as married and asking Cooper whether the voices of those children are “important.”  On the other hand, he noted that sociological information about the effect of same-sex marriage on children, for example, was still relatively new, and he complained that the lower court’s decision effectively “penalized” California, which had been fairly generous in providing rights to same-sex couples through domestic partnerships, for not going far enough and allowing them to marry.  And later he told Ted Olson that Olson was asking the Court to enter “uncharted waters in a case with a very narrow decision” and a “substantial question” regarding whether the case could proceed at all.

Taking those comments by Justice Kennedy to heart, some of the more liberal Justices seemed to shift their focus during Cooper’s rebuttal.  Thus, for example, Justice Sonia Sotomayor echoed Kennedy’s comments to Cooper; she asked him to explain why, if the proponents are urging the Court to allow the states to experiment with same-sex marriage – the solution is for the Court to decide the Proposition 8 case now.  After all, she told Cooper, the Court allowed the issue of racial segregation to play out in the country for decades before finally stepping in.

Given the shifting alliances on view at the Court today, and the overall lack of enthusiasm on the part of some Justices for deciding the case on the merits, the Justices’ Conference later this week – at which they will vote on the case – promises to be an interesting one.  Will at least five Justices join forces to hold that the proponents lack the right to defend the initiative at all?  Will they instead decide that even if the proponents have that right, the time is not right to decide the merits of the case?  Or will they go ahead and reach the merits after all?

Depending on the answers to those questions, the case could proceed in several different directions.  If at least six Justices conclude that now is not the right time to rule on the constitutionality of Proposition 8, they could “DIG” the case – dismiss it as improvidently granted.  If that happened, the lower court’s ruling striking down Proposition 8 would stand, but it would have no real significance outside of California.  Getting to that result would almost certainly require the Chief Justice to join forces with Justices Kennedy, Ginsburg, Breyer, and Sotomayor; nothing that we heard today provided any reason to believe that Justices Scalia, Thomas, or Alito would vote to dismiss the case.  In this scenario, Proposition 8 would be invalid, but another lawsuit – for example, brought by a Californian who opposed same-sex marriage – could eventually follow and reach the Court at a later date.

If the Justices do decide the case, they could vote in any number of ways, and so it’s hard to predict how the case will play out:  the Court could ultimately rule that Proposition 8 is invalid (for a variety of different reasons), or it could hold that the proponents lack the right to defend the initiative but set the stage for a new challenge later on.  Or they could surprise us all and simply send the case back to the lower courts for those courts to weigh in based on the Court’s decision in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act, in which it will hear arguments tomorrow.  But in all events, it is difficult to count five votes in support of an opinion that reverses the court of appeals outright and holds that Proposition 8 is constitutional; Justice Kennedy seemed to be looking for a strategy to avoid that result.

The one thing we can be sure of, however, is that when the Justices finally let the rest of us know how they plan to resolve the case (or not), we’ll be back to report on it in Plain English.

In association with Bloomberg Law

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.

Perry is the same-sex marriage case that has received the most attention in the years leading up to the Supreme Court proceedings this spring.  This is at least in part because it was filed in 2009 by a legal odd couple:  renowned trial lawyer David Boies and former Solicitor General Ted Olson, who are both perhaps best known for being on opposing sides in Bush v. Gore.  Boies and Olson filed the case four years ago with the intention of ultimately asserting in the U.S. Supreme Court that gays and lesbians have the same right to get married as everyone else, but that goal led to concern from supporters of same-sex marriage that they were moving too fast:  the country and the Court just aren’t ready for same-sex marriage yet, the thinking went, and a loss at the Supreme Court could set the cause back for years if not decades.  But as the case has moved along, public opinion has shifted dramatically with it.

The history of Proposition 8 actually starts with California’s Proposition 22, an initiative approved by the state’s voters in 2000 that amended the California Family Code to provide that “only marriage between a man and a woman is recognized in California.”  In 2008, the California Supreme Court ruled that Proposition 22 violated the state constitution.  The court ordered the state to start issuing marriage licenses to same-sex couples who wanted them.

Nearly 18,000 same-sex couples were married in California, but same-sex marriages came to a halt in November 2008, when the state’s voters passed Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to get married.

The plaintiffs in the Hollingsworth case – two same-sex couples who want to get married – filed their lawsuit a few months later in a federal district court in San Francisco.  The usual defendants in such a case – the California governor, the attorney general, and other state and local officials who would implement and enforce Proposition 8 – declined to defend the initiative as constitutional, so the individuals and organizations that had sponsored Proposition 8 stepped into the case as defendants to do so.

The challenge to Proposition 8 was assigned to federal Judge Vaughn Walker, who held a lengthy trial with dozens of witnesses and received thousands of pages of evidence.  In 2010, Judge Walker ruled that Proposition 8 was unconstitutional, holding that California had not offered a good reason to infringe on what he concluded was a fundamental right of same-sex couples to marry.

The proponents of Proposition 8 appealed Judge Walker’s decision to the U.S. Court of Appeals for the Ninth Circuit.   Before that court reviewed the merits of the challenge, however, it asked the California Supreme Court to weigh in on an issue that is very technical but which also goes to the heart of the court’s authority to hear the appeal:  whether California law permits the proponents of an initiative to step into a case to defend the initiative’s validity.  After several months, the California Supreme Court ruled that they do, and so the case resumed in the Ninth Circuit.

Turning to the constitutionality of Proposition 8, the court of appeals held the initiative unconstitutional, but on narrower grounds than Judge Walker.  It declined to decide whether there is a constitutional right to same-sex marriage.  It didn’t have to do that to decide the case, it explained, because Proposition 8 is unconstitutional for another reason.  In 1996, in a case called Romer v. Evans, the Supreme Court held that an amendment to the Colorado constitution which prohibited gays and lesbians from seeking or receiving protection from discrimination violated the federal Constitution.  That logic, the Ninth Circuit explained, applied equally to Proposition 8, because it took away the right of gays and lesbians to marry simply because people didn’t like them.

Having lost in the lower courts, the proponents of Proposition 8 filed a petition seeking U.S. Supreme Court review last summer.  And although the Ninth Circuit had decided the case on a narrow theory, the proponents asked the Court to weigh in on a much broader question, the answer to which would have great consequences for the more than forty other states that prohibit same-sex marriage:  Whether the Constitution prohibits a state from defining marriage as the union of a man and a woman.

The Court granted review on December 7, 2012.  In doing so, it ordered both sides to address an additional question:  whether the proponents of Proposition 8 have “standing” – a legal right to appear in court to defend the initiative – as a matter of federal (as opposed to state) law. 

The proponents of Proposition 8 filed their opening brief on the merits of their case in late January.  They pushed back against the court of appeals’ ruling that Proposition 8 unconstitutionally revokes a right to same-sex marriage that the state had previously granted.  It is certainly not the case, they contend, that by choosing to offer more rights to its residents than the Constitution requires, a state automatically commits itself to do so forever.

The proponents also emphasize that Proposition 8 simply “restore[d] the traditional definition of marriage” that has been in existence for centuries, and which rests in no small part on a desire to ensure that children “will be born and raised in stable and enduring family units by their own mothers and fathers.”  This concern does not apply to same-sex couples, who cannot produce children, but in California those couples can enter into “domestic partnerships,” which give them essentially all of the rights and responsibilities of marriage, just without the label.  Finally, noting the victories for supporters of same-sex marriage in the elections held just a few months ago, the proponents urged the Court to leave the “public debate” about same-sex marriage to the democratic process.

Turning to the question whether they have a legal right under federal law to be in the Supreme Court to defend Proposition 8 at all, the proponents’ answer is an unqualified yes.  In their view, state law determines who can assert the state’s interests in defending its laws.  Because the California Supreme Court said that they have the authority under state law to defend Proposition 8, that is all that matters.

Olson and Boies filed their brief on behalf of the challengers of Proposition 8 in late February.  Preliminarily, they argue that the proponents of Proposition 8 do not have “standing” because they would not personally be injured if same-sex marriages were allowed in California.

However, the challengers spend less than four pages on this issue before moving on to their main argument:  marriage is a fundamental right that has nothing to do with having children.  Notably, the challengers do not defend the court of appeals’ narrow ruling that California alone violated the Constitution by recognizing a right to same-sex marriage then taking that right away.  Rather, they argue that there is a basic right in every state for same-sex couples to marry.  Because marriage is such a fundamental right, and gays and lesbians have traditionally been victims of discrimination, the challengers continue, the Court should apply a more demanding test – known as “heightened scrutiny” – to determine whether Proposition 8 is constitutional.

The challengers dispute the notion that same-sex couples shouldn’t be allowed to marry because they can’t have children.  That theory would, they say, also extend to opposite-sex couples who either can’t or don’t want to have children of their own.  (As Mark Sherman of the Associated Press has pointed out, this is an argument that could resonate with some of the current Justices:  neither Justice Thomas and his wife nor the Chief Justice and his wife have biological children together, while Justice Sotomayor – who is now divorced – has said that when she married she did not intend to have children because of her diabetes.)

Although the federal government is not directly involved in the Proposition 8 case, it filed a “friend of the court” brief in the Supreme Court in which it too urges the Court to strike down Proposition 8, but to do so using a rationale that would not require the Justices to decide whether – as the challengers have argued – there is a broad right to same-sex marriage.  When a state like California (or the seven other states with similar laws permitting same-sex civil unions but prohibiting same-sex marriages) allows same-sex couples to have all of the rights and responsibilities of marriage through domestic partnerships or civil unions, but won’t allow those couples to actually be “married,” the government reasons, that different treatment based on sexual orientation violates the Constitution’s guarantee that laws will treat everyone equally.

At tomorrow’s oral argument, the Justices will hear from the lawyers representing the proponents and challengers of Proposition 8 and from the Solicitor General of the United States.  All eyes will be on Justice Anthony Kennedy, who is generally regarded as the critical vote on the Court, especially because he was also the author of Romer v. Evans and Lawrence v. Texas, another recent decision involving the rights of gays and lesbians.  We’ll be back tomorrow afternoon to break down that argument in Plain English.

[Disclosure:  A lawyer in the law firm of Goldstein & Russell, P.C., in which I am a partner, filed a friend-of-the-court brief in support of the challengers to Proposition 8.  However, I did not participate in that brief.]

In association with Bloomberg Law

First up on Wednesday morning was lawyer Bert Rein, representing Shelby County in its challenge to the statute.  He began by reminding the Court of its 2009 decision in Northwest Austin Municipal Utilities District No. 1 v. Holder, in which it acknowledged that “the South had changed” and “questioned whether current remedial needs justified” the costs – both financial and to the jurisdictions’ autonomy – of the preclearance requirement.  But Justice Sonia Sotomayor quickly jumped in, observing that even if the South as a whole has changed, Shelby County itself has not.  Because Shelby County’s track record of discrimination at the polls remains poor, she suggested, it “may be the wrong party bringing this” case. 

That comment was the first in a series from the Court’s four more liberal Justices, who may well have believed that their colleagues were poised to strike down all of Section 5 and were hoping to stave off such a decision on the ground that even if it may not be needed in all of the jurisdictions that must comply with it, it is still needed in Shelby County.  Therefore, the thinking goes, Shelby County has no right to challenge the law as it applies to all of those jurisdictions.  Justice Elena Kagan agreed with Sotomayor, telling Rein that, under any formula that Congress could come up with to cover jurisdictions that continued to discriminate, Alabama would still be covered.  But this line of reasoning did not necessarily find much support among the other Justices:  although Justice Anthony Kennedy, who is often regarded as the Court’s “swing vote” in high-profile cases, asked one question that some have interpreted as showing some sympathy for this position, the Chief Justice later emphasized that “Shelby County is just challenging the formula as it applies to” it.

Another theme to which the Justices repeatedly returned at oral argument boiled down to whether Section 5 had done its job and was no longer needed now that the kinds of problems that Congress had originally used to identify the jurisdictions that should be covered by Section 5’s preclearance requirement – for example, poor records in voter registration and voter turn-out for African Americans when compared with whites – have largely been eliminated.  Moreover, who gets to make that decision:  Congress or the courts?

On the first question – whether Section 5 was still necessary – some of the Court’s more liberal Justices were emphatic that even if voter registration and voter turn-out rates have improved in the states covered by Section 5, there is still discrimination at the polls in those states.  Justice Sotomayor asserted that “Section 5 was created . . . because states were moving faster than” litigation could catch up with new kinds of discrimination; “[a]s the courts struck down one form, the states would find another.”  Justice Kagan echoed this sentiment, telling Rein that, when Congress decided to renew Section 5 in 2006, it compiled a very substantial record and concluded that “although the problem had changed, the problem was still evident enough that the Act should continue.”  Justice Ginsburg made the same point:   “Congress said up front:  We know that the registration is fine.  That is no longer the problem.  But the discrimination continues in other forms.”

The Court’s more conservative Justices saw things through a very different lens.  They focused on voting problems in states and local governments that are not required to comply with Section 5’s preclearance requirement, and the perception of injustice that results when jurisdictions with arguably better records are still required to comply.  So when Solicitor General Don Verrilli began his oral argument by emphasizing that when Congress extended Section 5 in 2006, it had before it “a very substantial record . . . of continuing need” for the preclearance provision, the Chief Justice peppered him with a series of questions about voter registration and voter turn-out statistics indicating that Mississippi – which must comply with the preclearance requirement – has a better record than Massachusetts, which is not required to do so.  And Justice Alito asked skeptically whether changes in polling places – which the United States cited as an example of a modern, potentially discriminatory practice for which Section 5 preapproval should be required – were actually “a bigger problem in Virginia [which is covered by the law] than in Tennessee [which is not], or it’s a bigger problem in Arizona [covered] than Nevada [not covered], or in the Bronx [covered] as opposed to Brooklyn [not covered].”

On the question of who should decide whether Section 5 has done its work and run its course, there were different views here too.  In response to a question from Justice Kagan, Bert Rein suggested that although “Congress can examine it [and] . . .  make[] a record,” “it is up to the Court to determine whether the problem indeed has been solved.”  This led Justice Kagan to express surprise:  “Well, that’s a big, new power that you are giving us . . . we have the power now to decide whether racial discrimination has been solved?  I did not think that that fell within our bailiwick.”  Solicitor General Verrilli, by contrast, told the Court that it should defer to Congress’s determination that Section 5 is still necessary because Congress is better at making these kinds of judgments, which “are judgments about social conditions and human behavior about something that the people in Congress know the most about, which is voting and the political process.”  And Debo Adegbile of the NAACP Legal Defense Fund, who argued on behalf of a group of individuals who joined the lawsuit to defend Section 5, added that “[i]t is reasonable for Congress to make the decision that we need to stay the course so that we can turn the corner” on voting discrimination.

In what was certainly the most memorable part of the argument, Justice Scalia strongly suggested that perhaps the Court needed to step in and make this determination because Congress was incapable of doing so objectively.  He recounted how the initial enactment and re-authorization of Section 5 had faced “double-digit” opposition, which slowly faded away until the 2006 vote to reauthorize the provision was unanimous in the Senate and nearly unanimous in the House of Representatives.  He posited that this lack of opposition wasn’t “attributable to the fact that it is so much clearer now that we needed this” but instead was “very likely attributable . . . to a phenomenon that is called perpetuation of racial entitlement.  . . .  [W]henever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. . . .  And I am fairly confident it will be reenacted in perpetuity unless . . . a court can say it does not comport with the Constitution. . . .  [I]t’s a concern that this is not the kind of a question you can leave to Congress.”

The Court’s more conservative Justices also explored the possibility that any lingering problems in voting could be addressed through Section 2 of the Act, which allows the government and individuals to bring lawsuits challenging allegedly discriminatory laws or practices – a solution that in some Justices’ eyes would have the added benefit of treating all states equally.  Justice Kennedy led the charge on this point, observing that the government “can very easily bring a Section 2 suit and as part of that ask” to have a jurisdiction “bailed in” – that is, required by court order to follow Section 5’s preclearance requirements.  Rein agreed that lawsuits under Section 2 would be effective and would treat all states equally:  “at this point, given the record, given the history, the right thing to do is go forward under Section 2 and remove the stigma of prior restraint and preclearance from the states and the unequal application [of Section 5] based on data” from 1972.

When it was his turn at the lectern, however, Solicitor General Verrilli disagreed.  Section 2 is not a good substitute for Section 5, he explained, because Section 5 puts the burden on the state or local government to show that the proposed change won’t be discriminatory, and the change can’t go into effect until it is approved.  By contrast, under Section 2, the federal government or individuals have to sue to stop the change, which may take a while, and they have to show that it has a discriminatory purpose.  He offered the example of changes in a polling place, which he noted are “the most frequent type of” change submitted for preapproval and “can be a source of great mischief.”

Although Justice Thomas did not ask any questions at Wednesday’s oral argument, he made clear four years ago in the Northwest Austin case that he would have voted to strike down Section 5.  And the questions and comments from the Chief Justice, Justice Scalia, and Justice Alito strongly hinted that they too would join Justice Thomas on this go-round.  On the other end of the ideological spectrum, the comments by the Court’s four more liberal Justices all pointed toward a vote to keep Section 5 intact.  That leaves, as it so often does, the vote of Justice Kennedy.  And although at least one of his questions has been interpreted as signaling support for the law, for the most part his comments and questions left the overwhelming impression that he too would be inclined to rule in favor of Shelby County.

Will the Court ultimately do so?  And if so, what will the contours of its decision be?  The Justices have already voted on those questions, but the rest of us won’t know until the Court releases its opinion – which probably won’t happen until late June.  When it does, we’ll be here to cover it in Plain English.

In association with Bloomberg Law

Because Hollingsworth is a case about the constitutionality of a state law, so far the United States hasn’t gotten involved in it.  But in a parallel case at the Court, the federal government is refusing to defend the constitutionality of a federal law which refuses to recognize same-sex marriages for purposes of things like federal taxes, Social Security benefits, and immigration; that case, United States v. Windsor, will be argued on March 27, the day after Hollingsworth.  (This is not a coincidence.)  And with the President’s remarks in his inaugural address contending that the country’s “journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” the question for many Court watchers shifted from whether the federal government would file an amicus brief supporting the challengers to Proposition 8 to what such a brief might say. 

Now we know.  In the brief that it filed tonight, the federal government urged the Court to declare Proposition 8 unconstitutional, but it did not go as far as supporters of same-sex marriage would have liked and argue that all same-sex couples, throughout the United States, should necessarily have the right to marry.  That question, it told the Court, could be decided later.  Instead, it wrote, when a state such as California allows committed same-sex couples to have virtually all of the rights and benefits of marriage through laws allowing civil unions or domestic partnerships, but doesn’t allow those couples to get married, it is treating the same-sex couples differently because of their sexual orientation.  Because that different treatment, the government explains, makes no sense, it violates the Constitution’s requirement that everyone will be treated equally.  Moreover, the government observed, “California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8” — that is, promoting the conception and rearing of children.

If the Court were to agree with the federal government, that would be enough to decide the case in the challengers’ favor and rule that Proposition 8 cannot stand.  The Court would not need to decide (as the trial court did in the case) whether there is a broad constitutional right for same-sex couples to get married.  And its ruling wouldn’t have any immediate effect beyond the eight states – in addition to California, Rhode Island, New Jersey, Delaware, Oregon, Nevada, Hawaii, and Illinois – that currently have such civil unions and domestic partnerships.  However, the Court’s reasoning might then lay the groundwork for it to strike down other states’ laws banning same-sex marriage, even when the states do not offer a civil union for same-sex couples.   But that might take a while, by which point the country and the Court might be more ready to do so – which may well have been the Obama administration’s goal all along.

In association with Bloomberg Law

Pushing a highly secret government program of global wiretapping a broad step away from ever having its constitutionality judged in an open court, the Supreme Court on Tuesday shut down a lawsuit by lawyers, journalists, and others who fear that their electronic exchanges with overseas contacts are being monitored by federal listeners.

The decision, in the case of Clapper v. Amnesty International USA (docket 11-1025), split the Court five to four, with the majority reaching back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward.  That rule, the dissenting Justices complained, had never before been used by the Court to block a case on the theory that it did not present a live “case or controversy.”

The ruling marked the first time that the Court had encountered a five-year-old law in which Congress, reacting to government arguments that it needed added surveillance powers to pursue the “war on terrorism,” broadly expanded federal agencies’ authority to monitor telephone, e-mail, and other communications between the U.S. and other countries, using high-volume computer-driven techniques.

Because the Court ruled that the challengers to the 2008 law did not have “standing” under the Constitution’s Article III to file their case in regular civilian court, the decision did not judge the constitutionality of the sweeping new monitoring power.  The dissenters did not do so either, but they did argue that the challengers’ case should have been allowed to proceed in lower courts.

Justice Samuel A. Alito, Jr., who wrote the majority opinion, concluded that the challengers’ lawsuit was based upon a “chain of contingencies” that would have to fall into place before their communications might be at risk of eavesdropping.  They had not shown, the opinion concluded, that harms to them were “certainly impending” –  a rigorous standard for testing the right to sue.

The decision fit into two ongoing patterns established by the modern Court: a narrowing of the scope of the right to sue in federal court as a general proposition, and a stream of decisions insulating highly secret government war programs from judicial review in the regular federal court system.

The Alito opinion expressed a high degree of confidence that a special court, the Foreign Intelligence Surveillance Court, will guard against abuses of the new surveillance program that was freed of a number of restraints that existed under a law first passed in 1978.  That surveillance court operates in total secrecy, within the Justice Department building in downtown Washington, and almost never has turned down completely government requests for “foreign intelligence” surveillance.   It has sometimes modified those requests, however.

The Court majority said that the secret court is bound to enforce the Fourth Amendment’s guarantees of privacy, and indicated that the Supreme Court was relying upon it to do so.

The lawyers, some of whom represent individuals who have been or are being prosecuted on terrorism charges, joined in the challenging lawsuit along with journalists who have overseas sources in countries where terrorism is rampant, and human rights researchers who have overseas contacts, including individuals who may have been subjected to captivity in secret U.S. prisons abroad.

The Second Circuit Court had accepted the claims that at least some of those individuals or their organizations were at risk of being monitored, because of the widespread scope and the penetrating nature of the global wiretapping program, and thus ruled that their challenge should be allowed to be tried in a U.S. District Court.   That is the decision the Supreme Court overturned on Tuesday, barring any trial.

The majority opinion rejected arguments by the challengers that they are almost certain to be monitored by the program in the future, but that they are already suffering harm because they have had to modify their mode of reaching their contacts, sometimes at some expense, to avoid being overheard.   Both claims, the main opinion said, depend upon a variety of steps that may never occur, or at least may not occur in a way that will reach the contacts that the challengers claimed they are making.

Moreover, the opinion said, even if some of their electronic exchanges may be monitored, that may not be able to be traced back and thus blamed on the global wiretapping program.   It might be the result of what foreign spy agencies do, or other monitoring sources, or it might be a result of monitoring orders approved by the FISC tribunal before the 2008 amendments — the only provisions at issue in this case — had been enacted.

Justice Alito’s opinion was supported by full by Chief Justice John G. Roberts, Jr., and by Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.

Justice Stephen G. Breyer wrote for the dissenters, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.  The dissenting opinion contended that their research turned up not a single case in which the standard used by the majority — that is, that an injury must be “certainly impending” — was ever used to deny a right to sue in federal court.

This decision, in plain English:

A 1978 federal law gives the federal government authority to engage in eavesdropping to gather intelligence information from foreign nations, without targeting the communications of Americans.  In 2008, in the wake of the government’s stepped-up efforts to monitor threats of terrorism, Congress broadly expanded that power, which is carried on with the approval of a secret court that meets in the Justice Department in Washington.

After that expanded version of the law went into effect, a group of lawyers with clients who have figured in terrorism cases, joined by a group of journalists who have overseas sources in countries where terrorism may be ongoing, and by human rights researchers looking for people subjected to torture in secret prison, filed a lawsuit in federal court.  They contended that the much greater monitoring almost certainly being done with the expanded eavesdropping power very likely will pick up some of their conversations or electronic exchanges.

They could not prove that they actually were targets of such surveillance, because the program is surrounded in the deepest form of secrecy to protect classified information.

They argued that, because of their belief they were likely to be monitored, they had to take steps to protect their confidential contacts, so they changed the way they provide legal advice, perform journalistic chores, or carry out research, and they did so sometimes at considerable expense.   That, they argued, was the kind of legal “injury” that gave them a right, under the Constitution, to challenge the constitutionality of the program.

A federal judge in New York City ruled that they had not shown that they would be targeted.   A federal appeals court in New York, however, ruled that they had shown a sufficient likelihood of being overheard, so their case could go to trial.

The Supreme Court, dividing five to four, on Tuesday upheld the government’s argument that the claims of the challengers that they were likely to be targets of surveillance were based too much on speculation and on a predicted chain of events that might never occur, so they could not satisfy the constitutional requirement for being allowed to sue.

Justice Breyer’s dissenting opinion said that the Court should have used a standard of “probabilistic injuries” to determine “standing.”  If that were used in this case, the dissenters said, the challengers would have met it, and their case could have gone ahead to trial.

In association with Bloomberg Law