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In some ways, it was déjà vu all over again.  Just like last year, when it upheld the individual mandate of the Affordable Care Act, the Court saved the biggest cases of the Term – this time, challenges to California’s ban on same-sex marriage and the federal Defense of Marriage Act – for last.  Just like last year, there were long lines for seats in the courtroom; this time, they formed more than eighteen hours before the Justices would take the bench.  And just like last year, there was pandemonium outside (although, unlike last year, there were no belly dancers to be found).

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The federal Defense of Marriage Act defines “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.

Four years ago, in a case called Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, the Supreme Court reviewed a challenge to the constitutionality of the preclearance provisions of the Voting Rights Act.  As I explained in an earlier post, that portion of the Act was designed to prevent discrimination in voting by requiring a list of state and local governments identified by Congress in the 1960s as having a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures – both major changes and even for something as seemingly innocuous as moving a polling place across the street.  In that case, the Court ultimately dodged the constitutional question, handing the utility district a victory on another ground.  But at the same time, the Court fired off a cautionary shot to Congress, admonishing it that “[t]hings have changed in the South,” where most of the state and local governments that have to comply with the preclearance requirements are located, and that the burdens imposed by the preclearance requirements “must be justified by current needs.”

Chief Justice Roberts' opinion in Voting Rights Act, Section 5 (Art Lien)

Chief Justice Roberts’ opinion in Voting Rights Act, Section 5 (Art Lien)

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Frequently asked questions: Orders

By on Jun 24, 2013 at 8:48 am

We expect the Court to issue orders from the June 20 Conference today at 9:30 a.m.  (All times are Eastern.)  We will be live blogging beginning at around 9 a.m.   We have put together a list of some of the commonly asked questions about orders that we have received during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here.

Question:  What are orders?

Answer:  Orders are actions that the Court took at its most recent Conference, last Thursday.  They are released to the public and the press as a list.  Two of the most common kinds of orders (and the ones in which we tend to be most interested) are orders granting or denying requests to review a case on the merits – actions known as granting or denying “cert.” (short for “certiorari”).

Question:  What is the difference between “orders” and “opinions”?

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And it has all come down to this.  Over four years ago, superlawyers Ted Olson and David Boies – who opposed each other in the Bush v. Gore presidential election case – came together to challenge California’s ban on same-sex marriage on behalf of two California couples.  In the next few days, the Supreme Court is finally expected to rule on whether that ban (known as Proposition 8) and the federal Defense of Marriage Act – which limits marriage to a union between a man and a woman for purposes of federal law – are constitutional.  But then again, it might not . . . .  So let’s talk about the same-sex marriage cases and what the Court could do with them in Plain English.

Let’s start with United States v. Windsor, the challenge to the Defense of Marriage Act (DOMA), which may wind up as the less complicated of the two.  (More background on the case can be found in my earlier posts here, here, and here.)  And let’s be clear on what this case is not about:  it is not about whether there is a constitutional right to same-sex marriage.  Instead, it is about whether Congress can treat married same-sex couples differently from married opposite-sex couples in federal laws and programs like Social Security benefits, immigration, and income taxes.  Continue reading »


Conceding that it is hard to draw the constitutional line, the Supreme Court on Thursday attempted once more to spell out when the government may use its money to try to control what people are allowed to say if they take the money.   Between the lines, the opinion seems to say that those who get the money can keep getting it even if what they say does not square with the government’s program goals. They just have to pay for such contradictions with their own money.

If that is the true meaning of the decision in Agency for International Development v. Alliance for Open Society International (docket 12-10), free speech under the First Amendment has made something of a gain.

Chief Justice Roberts announces the opinion (Art Lien)

Chief Justice Roberts announces the opinion (Art Lien)

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We have put together a list of some of the commonly asked questions about orders and opinion announcements that we have gotten during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here.


Question:  What do you mean by “orders”?

Answer:  When we talk about “orders” or the “order list,” we are usually referring to the actions that the Court took at its most recent Conference, which are reflected in a document (“the order list”) that the Court releases to the public.  The most common orders are those granting or denying review on the merits in a particular case (known as granting or denying “cert.,” short for “certiorari”), but the Court may also issue other orders in cases seeking review or in pending cases — for example, an order granting or rejecting a request to participate in an oral argument on the merits.

Question:  What is a “CVSG”?

Answer:  “CVSG” stands for “call for the views of the Solicitor General.”  In most cases in which someone is seeking review of the lower courts’ decision, the Court will issue a straightforward grant or denial.  But sometimes the Court will want the government’s views on what it should do in a case in which the government isn’t a party but may still have an interest — for example, because the interpretation of a federal statute is involved.  So the Court will issue an order in which it “invites the Solicitor General to file a brief expressing the views of the United States.”  It isn’t an “invitation” in the sense that the federal government gets to decide whether it wants to file a brief at all, because the Court expects the government to file.  There is no deadline by which the government is required to file the brief, however.  And the government’s recommendation will carry significant weight with the Court.

Question:  What does it mean to relist a case?

Answer:  When a case is relisted, that means that it is slated for reconsideration at the Justices’ next Conference.  This will be reflected on the case’s electronic docket once the docket has been updated:  you will see the words “DISTRIBUTED for Conference of [fill in date],” and then the next entry in the docket will usually say “DISTRIBUTED for Conference of [next conference after the previous entry, whenever that is].”  Relisting can mean a couple of different things, and we don’t always know what those things are.  It can mean, for example, that a Justice is trying to pick up a fourth vote to grant review, that one or more Justices just wants to look more closely at the case, or that the Court is writing an opinion to summarily reverse (that is, without briefing or oral argument on the merits) the case.  In 2014, the Court appears to have adopted a practice of granting review only after it has relisted a case at least once; although we don’t know for sure, presumably the Court uses the extra time resulting from a relist to make sure that the case is a suitable one for its review.


Question: What opinions will the Court issue today?

Answer: Unlike some other courts, the Court doesn’t announce in advance which cases will be decided on a particular day.  The only time we have a good sense is the very last day, when the Court issues its final rulings.

Question:  How many opinions will the Court issue?

Answer:  The Court also does not announce in advance how many opinions it expects to release on any particular day.

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Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.   If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

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(Photo by Images Money/Creative Commons)

(Photo by Images Money/Creative Commons)


Showing a strong suspicion that big drug companies with deep pockets may be using their money to shield shaky patent rights, the Supreme Court on Monday for the first time cleared the way for antitrust lawsuits to challenge payoffs between brand-name drugmakers to keep would-be competitors who make generic substitutes temporarily out of their market.

But winning such lawsuits will hardly be easy, because the Court refused to start with the premise that such payments are probably illegal.  The five-to-three decision in Federal Trade Commission v. Actavis (docket 12-416) was based far more on antitrust than patent law, and was at least a warning that settling lawsuits — at least in the drug industry — is a practice not necessarily free from risk.  (Justice Samuel A. Alito, Jr., took no part in the ruling.)

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UPDATED Tuesday pm:  Arizona officials have announced that they will now pursue the suggestion offered by the Court’s opinion on how the state might be able to gain a right to require proof of citizenship for voters.  The official statement is here.



In a ruling that might easily be misunderstood if not read very closely, the Supreme Court on Monday simultaneously strengthened Congress’s hand in expanding the ranks of eligible voters, and yet assured states that they retain the ultimate power to decide who gets to vote.  The apparent bottom line: states cannot now require voters to show proof that they are U.S. citizens, but the Court has given them a plan that could gain them that power.

The decision in the case of Arizona v. Inter Tribal Council of Arizona (docket 12-71) had major potential for sorting out the dual roles of Congress and the states in deciding eligibility to vote, and that was even more vital in the midst of a new national controversy over efforts among some states to narrow eligibility.  The end result will give both sides in that controversy encouragement, but perhaps rather confusing legal guidance.

Justice Scalia announces the opinion this morning (Art Line)

Justice Scalia announces the opinion this morning (Art Lien)

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