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Friday round-up

The focus of today’s coverage of the Court is yesterday’s ruling by the California Supreme Court that sponsors of California’s ban on same-sex marriage have standing under state law to defend the ballot initiative, and in particular the likelihood that the Proposition 8 issue will come  to the Court anytime soon.  Lyle Denniston of this blog analyzes both the decision itself and the procedural posture of the case; he concludes that “it does not now appear that the Circuit Court could complete its review, and issue whatever decision it reached, in time for the issue to be considered during the current Term of the Supreme Court in Washington.”  Writing for the Los Angeles Times, Maura Dolan reports on comments regarding the decision by legal scholars, who characterize the decision as “so adamant that the U.S. Supreme Court . . . was unlikely to limit its ruling to the narrow and technical issue of ‘standing.’”  Reuters also has coverage.

Commentators have also weighed in on the likelihood (and possible outcome) of review by the U.S. Supreme Court. In an op-ed for the San Francisco Chronicle, Vikram Amar contends that if the Ninth Circuit “affirm[s] [District Judge Vaughn] Walker’s ruling that there is a federal constitutional right to same-sex marriage and strike[s] down Prop. 8, the U.S. Supreme Court may have no choice but to take up the case.” At the Volokh Conspiracy, Eugene Volokh observes that this decision “means that the Ninth Circuit (and likely eventually the Supreme Court) can consider whether Prop. 8 is indeed constitutional.”

Discussion of the health care litigation at the Court continues as well. This blog’s Amy Howe explains the Court’s orders in plain English. The editorial board of the New York Times urges the Court to allow television coverage of the oral arguments, reasoning that the transcripts and weekly audio recordings “are not equivalent to seeing justices ask questions and the lawyers respond live.” In an op-ed for the Huffington Post, Leon Friedman analyzes the federal government’s decision to focus on defending the merits of the Affordable Care Act, rather than arguing that legal challenges to the individual mandate are barred by the Anti-Injunction Act. Also at the Huffington Post, Lisa McElroy and Robert Field discuss the significance of the Court’s decision to hear the case, characterizing it as an example of “our constitutional democracy in action,” and the Court’s actions as “a message to the American public . . . that our system of constitutional democracy is alive and well.” Finally, at the Volokh Conspiracy, David Kopel argues that the individual mandate cannot be upheld as “a necessary and proper exercise of the power to regulate interstate commerce.”


  • The Associated Press reports on the Court’s refusal to halt the legal injection of Paul Ezra Rhoades, Idaho’s first execution in seventeen years.
  • In an op-ed for the New York Times, Reynolds Holding and Robert Cole describe Mayo Collaborative Services v. Prometheus Laboratories, Inc. as an opportunity for the Court to “reverse the mission creep in patent law” and remedy the effect of rulings that have “gut[ted] the rule that . . . prevent[s] the patenting of abstract ideas.”
  • In an op-ed for Forbes, Frank Miniter argues that the Court should hold that warrantless GPS tracking is a violation of the Fourth Amendment in United States v. Jones. He urges “Americans [to] take the time to look beyond the judicial precedents and the wondrous technological advances and fully comprehend the individual rights we’ve been gifted in the Bill of Rights.”


Recommended Citation: Marissa Miller, Friday round-up, SCOTUSblog (Nov. 18, 2011, 10:35 AM),