As Lyle reported for this blog, yesterday the U.S. Court of Appeals for the Ninth Circuit refused to reconsider its decision to strike down California’s Proposition 8, the voter-approved state ban on same-sex marriages, thereby setting up the prospect that the Supreme Court will take up the issue. Coverage comes from Karen Gullo of Bloomberg, Bill Mears of CNN, Ethan Bronner of The New York Times, Justin Scheck of The Wall Street Journal (subscription required), Joe Palazzolo at The Wall Street Journal Law Blog, Miranda Leitsinger and James Eng of msnbc.com, Ariane de Vogue of ABC News, Maura Dolan of the Los Angeles Times, Lisa Leff of the Associated Press, Robert Barnes of the Washington Post, Rebecca DiLeonardo of JURIST, Peter Henderson of Reuters, Bob Egelko of the San Francisco Chronicle, Josh Gerstein of Politico, Michael Winter of USA Today, Molly Ball of the Atlantic, Scottie Thomaston of the Huffington Post, and Jeremy Leaming of ACSblog.
Commentators have also begun to weigh in on the likelihood that the Court will grant cert. in the case. At the Volokh Conspiracy, Eugene Volokh writes that he “strongly suspect[s] that the Supreme Court will now agree to hear the case,” explaining that although “the decision only applies to states, like California, that recognized civil unions but not same-sex marriages, it’s still a conclusion of national importance, one on which the Supreme Court is likely want to speak.” At the “Taking Note” blog of The New York Times, Andrew Rosenthal predicts that both the Proposition 8 case and the challenge to the federal Defense of Marriage Act “are destined to reach the Supreme Court” – a sentiment echoed by Richard Socarides at the “News Desk” blog of The New Yorker.
Coverage of the Affordable Care Act (ACA) cases also continues. At the “Daily Comment” blog of The New Yorker, Jeffrey Toobin reviews the central issues before the Court and discusses the possible implications of the Court’s decision for the upcoming presidential election, while at the Volokh Conspiracy David Bernstein responds to a post by Rob Weiner at Balkinization, arguing that the post “reflects the Whiggish (and incorrect) views that constitutional law has progressed in a linear fashion from the reactionary ‘bald old days’ to more enlightened doctrines.” And at Reuters, Mark Miller explains that “there could be real problems [for Medicare] if the U.S. Supreme Court strikes down the Affordable Care Act this month.” Finally, at the Cockle Bur, Shon R. Hopwood notes that Paul Clement’s use of the phrase “unprecedented and unbounded” in his brief for the ACA challengers echoes a phrase used by the Chief Justice in the Court’s opinion in United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority.
Finally, coverage of Monday’s opinions continued yesterday. At the Wall Street Journal (subscription required), Jess Bravin covers Reichle v. Howards, in which the Court unanimously held that two Secret Service agents are entitled to qualified immunity from claims that they arrested a man in retaliation for remarks made about then-Vice President Dick Cheney. Tony Mauro, in a post at the First Amendment Center, also discusses the case, arguing that Justice Thomas, “author of the majority opinion, went out of his way to avoid the First Amendment-related issue, and in the process gave it short shrift.” And at the Volokh Conspiracy, Orin Kerr discusses the concept of “clearly established law” implicated by the Reichle decision.
- At this blog John Elwood reviews the relisted and held cases on Monday’s order list.
- Also at this blog, Amanda Frost discusses a law review article that compares the background of the current Justices with their predecessors.
- Chantal Valery of Agence France Presse reports on an interview with Justice Breyer. (Thanks to Howard Bashman for the link.)
- At Appellate Daily, Michelle Olsen reports on a split in the federal courts’ interpretation of the Computer Fraud and Abuse Act.