on Dec 10, 2012 at 8:48 am
On Friday, the Justices granted certiorari in five new cases, including in the challenges to California’s Proposition 8 and the federal Defense of Marriage Act (DOMA). Coverage of these developments dominated the weekend’s Court-related news; this post rounds up (albeit non-exhaustively) that coverage.
The Court’s decision to grant cert. in both Hollingsworth v. Perry – in which the Court will consider the constitutionality of California’s Proposition 8 – and United States v. Windsor – in which it will consider the constitutionality of DOMA – has received extensive coverage from the media. In Friday’s evening round-up, Max provides links to the early coverage of the grants. Further discussion of the cases, their significance, and the parties on each side comes from Greg Stohr of Bloomberg, Adam Nagourney of The New York Times, Jessica Garrison and Ashley Powers of the Los Angeles Times, the Chicago Tribune, Wendy Goffe at Forbes, Bill Chappell and Dana Farrington of NPR, Richard Wolf of USA Today (both here and here), Warren Richey of The Christian Science Monitor (both here and here), Brad Knickerbocker of The Christian Science Monitor, Richard Socarides of The New Yorker, Robert Barnes of the Washington Post, and David Savage of the Los Angeles Times.
Commentators have also begun to weigh in with analyses of, and predictions on, the cases. At this blog, William Duncan writes that, now that cert. has been granted, “the Court’s focus should turn to correcting the serious flaws in the lower court decisions it will be reviewing and preventing future judicial adventurism on the definition of marriage.” Lyle and Kenji Yoshino explore the possible courses the Court might take; Lyle explains that the Court may not actually decide the constitutional questions, given that the Court has also granted cert. on questions involving its authority to rule in each case. Yoshino predicts that the Justices will not “split the difference” by striking down DOMA but upholding Prop 8. Also at this blog, William Eskridge and Hans Johnson contend that same-sex marriage is having a “Cinderella moment,” while Neal Devins and Tara Grove argue that some petitioners in these cases are not proper parties before the Court.
Further commentary comes from the editorial board of The New York Times, which asserts that “the right course seems clear: that the justices continue the march toward real equality.” In his column for The Washington Post, Jonathan Capehart opines that DOMA is “doomed” because “the Windsor case is not a quest for a special right of any kind. . . . What she wants — what all similarly suited same-sex couples and those who aspire to marriage want for themselves — is to have her marriage recognized by the federal government and to enjoy the rights and responsibilities that go with that.” At The Atlantic, Garrett Epps suggests that Justice Kennedy “may . . . see these cases as a chance for the Court—and for himself—to rise to the challenge of history and write a new chapter in the long story of equality.” Similarly, in an op-ed for the Los Angeles Times, Michael Klarman compares the case to Brown v. Board of Education, noting that although “[a] high court ruling in favor of marriage equality would similarly divide the nation in 2013,” “given how quickly public opinion is evolving, within a decade or so such a decision would probably also be almost universally applauded.” In an op-ed for USA Today, Scott Shackford observes that the Court “can’t actually stop the trend toward gay marriage recognition if that’s what the public wants. It can only decide whether or not same-sex couples have a right to demand it.” Also at USA Today, Charlotte Allen argues that the issue is not one for the courts, but for voters and state legislatures. At Forbes, Daniel Fisher predicts that the Court will not establish a nationwide, constitutional right to gay marriage.
Finally, the Court also granted cert. on Friday in (among other cases) FTC v. Watson Pharmaceuticals, in which it will consider whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud. Coverage of this grant comes from Greg Stohr of Bloomberg News, Edward Wyatt of The New York Times, Jonathan Stempel of Reuters, Mark Sherman of the Associated Press, and Daniel Fisher of Forbes.
- At UPI, Michael Kirkland reports that, because the law at issue in Clapper v. Amnesty International USA is set to expire on New Year’s Eve, the plaintiffs may ultimately lose standing, leaving the case “hanging in mid-air.”
- Writing for The Washington Post, Jeff Shesol reviews The Partisan, a new biography of the late Chief Justice William Rehnquist by John Jenkins.
- At the Taking Note blog of The New York Times, Lincoln Caplan discusses the Court’s denial of cert. in Hodge v. Kentucky, as well as Justice Sonia Sotomayor’s dissent from the denial of cert. in this case.