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Friday round-up

Thursday’s coverage of the Court primarily focused on the two same-sex marriage cases argued this week.

Coverage of Wednesday’s oral argument in United States v. Windsor, the challenge to the federal Defense of Marriage Act, comes from Adam Liptak and Peter Baker at the New York Times, Nina Totenberg (here and here) at NPR, Robert Barnes at the Washington Post, Brent Kendall at the Wall Street Journal, Warren Richey at the Christian Science Monitor, Cheryl Wetzstein and Tom Howell, Jr. and David Sands at the Washington Times, and Carolyn Lochhead at the San Francisco Chronicle.  More general coverage of the case comes from Jeremy Peters and Peter Baker at the New York Times, Ryan Tracy at the Wall Street Journal, and Brian Bennett and Wes Venteicher at the Los Angeles Times.

Many commentators closely examined the federalism issues presented in Windsor.  At the Volokh Conspiracy, Randy Barnett argues that “[i]n Section 3 of DOMA, Congress asserted a power over marriage that it does not have.”  At Dorf On Law, Lisa McElroy agrees that “the federal government should be out of the marriage business,” although she also argues that DOMA is unconstitutional on Equal Protection grounds.  Emily Gold Waldman at PrawfsBlawg and Orin Kerr at the Volokh Conspiracy doubt the analytical strength of these federalism arguments, and Noah Feldman argues at Bloomberg View that a decision striking down DOMA on federalism grounds would produce “legal chaos.”  At the Volokh Conspiracy, Ilya Somin responds to Feldman.  Jeffrey Rosen writes at the New Republic about the relationship between the Court’s potential federalism holding in this case and the Court’s other recent federalism holdings.  Dylan Scott at Governing also addresses the federalism issue, focusing on the implications of particular exchanges at oral argument for such a holding.

Other commentators focused on the Equal Protection aspects of Windsor.  The Editorial Board of the New York Times urges the Court to strike down DOMA on that theory, while Peter Baker at the New York Times analyzes the political momentum of the gay-rights movement and its potential implications for the doctrinal development of this case.

Still others reported on the potential implications, for laws and for their beneficiaries, of a decision striking down DOMA.  Such coverage comes from Kim Dixon and Patrick Temple-West at Reuters, Richard Wolf at USA Today, and Lindsay Wise at McClatchy Newspapers.  Writing at The Nation, Nan Hunter argues that the Court has “compelling institutional reasons” to reach the merits in Windsor, rather than ruling on standing grounds only.  And Irin Carmon at Salon explores the ways in which oral argument revealed that “disapproval of gay people, not tradition or government uniformity,” lies at the heart of DOMA.

Other commentators focused on Tuesday’s oral argument in Hollingsworth v. Perry, the challenge to California’s Proposition 8.  For this blog, John Bursch parses the oral argument transcript and argues that the Court is likely to vote to uphold Proposition 8, declaring it “highly improbable” that the Court will either dismiss the case as improvidently granted (“DIG” it) or dismiss on standing grounds.  Rick Hasen at Election Law Blog, John Culhane at Slate, and Vikram Amar at Justia all have additional analysis of the DIG and standing issues in the case.  Lisa Leff at the Associated Press explores the potential range of outcomes in the case.

Many commentators reflected on both cases together, discussing their similarities, differences, and relationships.  Coverage of both opinions comes from Jess Bravin at the Wall Street Journal, who focuses on the jurisdictional aspects of the oral arguments, Joan Biskupic at Reuters, who considers the likely legal outcomes in the cases, Todd Ruger at the Blog of Legal Times, who focuses on the atmosphere outside the Court, and Greg Stohr and Laurie Asseo at Bloomberg, who analyze the potential impacts of the opinions.  Other coverage focuses on the role of individual Justices in the case, as Greg Stohr at Bloomberg highlights Justice Ginsburg’s role at oral argument, while Sahil Kapur at Talking Points Memo considers Justice Kennedy’s comments in the two cases.  At NPR, Nina Totenberg draws attention to “odds and ends” of this week’s oral arguments, noting the laughs drawn at oral argument by some of the Justices.

For this blog, Erwin Chemerinsky considers what the Court will do in both cases, exploring potential holdings made on procedural grounds versus those made on the merits, arguing that “[i]f the Court reaches the merits, I think it is clear that there are five votes to strike down Proposition 8 and Section 3 of DOMA.”  Also at this blog, Gerard Bradley explores the use of scientific evidence at oral arguments, considering the issue’s relevance to both the standing and merits questions.  The New Yorker examines the issue from different angles: Amy Davidson considers Justice Ginsburg’s “skim milk marriage” comments, arguing that “legal rights matter” here; Richard Socarides explores the political power of the gay rights movement and the Court’s view of the legal test for heightened scrutiny; Jeffrey Toobin examines the broader social movements surrounding the cases, noting that “times have changed” and that such changes are coming, “with or without the Supreme Court.”  James Taranto at the Wall Street Journal suggests that there are differences in the ways in which the Court might resolve both the standing and Equal Protection issues in the cases, and Calvin Massey at the Faculty Lounge responds, taking up the question of how the Court could find standing in Windsor but not in Hollingsworth. Writing at Politico, Josh Gerstein suggests that even if the Court strikes down both Proposition 8 and DOMA, it is not likely to rule in a way that would have the sweeping effects that many gay-rights advocates had hoped for.

At the Washington Post, Walter Pincus argues that this week’s oral arguments provide reasons to keep cameras out of the Supreme Court.  At the Originalism Blog, Chris Green considers the decisions of the executive branches in both cases not to defend the measures, arguing that such an approach is justified where the executive “believes that a statute is probably unconstitutional, but not (at this point) sufficiently clearly so for executive review.”  Gerard Magliocca at Balkinization provides additional observations on the cases, particularly looking forward to a future Full Faith and Credit Clause claim regarding same-sex marriage.  And Kent Greenfield at The American Prospect suggests that the Court may very well rule on both cases on procedural grounds, exploring ways in which they might do so.

Other coverage of the Court continued to examine the Court’s decisions from Wednesday.  In Millbrook v. United States, a unanimous Court held that the Federal Tort Claims Act’s “law enforcement proviso” applies to all activities of law enforcement officers within the scope of their employment, rather than only to their investigative or law enforcement activity.  Julia Zebley at JURIST has coverage of the opinion.

In Comcast v. Behrend, a sharply divided Court – with both Justice Ginsburg and Justice Breyer dissenting from the bench – held that the plaintiff class of Comcast subscribers was improperly certified under Rule 23(b)(3), as the class’s proposed damages model could not show damages on a class-wide basis.  Jerry Votava at JURIST and Bob Fernandez at the Philadelphia Inquirer both have coverage of the opinion.  Other commentators look ahead to what the Court’s opinion in Comcast could mean for a petition for certiorari currently pending before the Court: Whirlpool Corp. v. Glazer, which involves class certification under Rule 23(b)(3) where a district court has not yet resolved factual disputes bearing on the requirements of Rule 23.  At the Consumer Law & Policy Blog, Brian Wolfman expresses concerns about the impact of Whirlpool’s arguments on the abilities of class plaintiffs to vindicate their interests, while editorials in both the Wall Street Journal and the Washington Times urge the Court to grant certiorari in Whirlpool.

Commentators also addressed Monday’s oral arguments in FTC v. Actavis, in which the Court is considering the legality of reverse payment agreements under antitrust law.  At the Washington Post’s Wonkblog, Sarah Kliff provides background on the types of  settlement agreements underlying the case, calling Actavis “[t]he multi-billion dollar case you haven’t heard of.”  And at Bill of Health, Adriana Benedict provides additional commentary on Monday’s oral arguments.


  • Steve Chapman writes at Reason about the privacy implications of the opinion the Court issued on Tuesday in Florida v. Jardines, in which it held that a drug-sniffing dog’s sniff at the front door of a house in which the police suspected the presence of drugs constituted a search for purposes of the Fourth Amendment.
  • For the ABA Journal, Mark Walsh considers the factual and legal circumstances behind the upcoming oral arguments in Salinas v. Texas, in which the Court will consider whether the Self-Incrimination Clause of the Fifth Amendment protects a defendant’s refusal to respond to law enforcement questioning before he has either been arrested or read his Miranda rights. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the co-counsel to the petitioner in this case.]
  • At the New York Times, Adam Liptak reviews Stuart Banner’s new book, The Baseball Trust, which features a number of notable Supreme Court decisions on the relationship between antitrust law and baseball.


Recommended Citation: Rachel Sachs, Friday round-up, SCOTUSblog (Mar. 29, 2013, 12:54 PM),