Monday round-up

With the Justices set to hear arguments in both same-sex marriage cases this week, the weekend’s coverage of the Court focused primarily on these two cases. Arguments inHollingsworth v. Perry, the challenge to California Proposition 8, will take place on Tuesday, while the Court will hear arguments inUnited States v. Windsor, the challenge to the Defense of Marriage Act,on Wednesday.

Previews of the arguments come from Joan Biskupic ofThomson Reuters, Howard Mintz of theSan Jose Mercury News, Robert Barnes of TheWashington Post, Geoffrey Fowler and Jess Bravin of TheWall Street Journal, Emily Bazelon ofSlate, and Warren Richey of The Christian Science Monitor (here,here, andhere). Mark Sherman of theAssociated Pressdiscusses a range of potential outcomes, while Adam Liptak and Alicia Parlapiano of TheNew York Timesdo so with a graphic on the Court’s options. TheWall Street Journal’s Jess Bravin reports on the longstanding personal and professional relationship between attorneys Paul Clement and Ted Olson, who will argue on opposite sides of this issue next week; in theLos Angeles Times, Timothy Phelps profiles Olson, exploring the effect of the Perry case on the former Solicitor General’s life. Coverage of the shift in public opinion on same-sex marriage and how this shift may affect the Courts thinking comes from Brad Knickerbocker of TheChristian Science Monitor, as well as Lila Shapiro at TheHuffington Post. Both Adam Liptak of TheNew York Timesand Michael Tackett ofBloombergexplore how analogies to Roe v. Wade, Loving v. Virginia, and Brown v. Board of Education are influencing the debate.

This weekend also saw multiple articles on the advocates and arguments against same-sex marriage, including profiles by Sheryl Gay Stohlberg of TheNew York Timesand Richard Wolf ofUSA Today, as well asNPR’s coverage of the moral objections in the briefs against same-sex marriage. At the same time,NPRs Nina Totenberg discusses how Ken Mehlman, President Bush’s former political director, led the effort behindtheamicusbrief of prominent Republicans in favor of same-sex marriage;this blog‘s Lyle Denniston provides a more general overview of theamicusbriefs in the challenge to Proposition 8.Coverage of the line for seats at oral arguments, which began forming on Friday, come fromthis blog‘s Lyle Denniston (with anupdateby Marty Lederman),NPR’s Elise Hu, theHuffington Post‘s Ryan Reilly and Will Wrigley, and Jada Smith at TheCaucusblog of The New York Times.

In addition, commentators have already begun to weigh in on the issues. At theVolokh Conspiracy, Randy Barnett argues that the proponents of Proposition 8 should have standing to defend the ballot measure becauseprinciples of “popular sovereignty suggest that measures enacted directly by voters deserve to be defended from constitutional challenge when the supposed ‘agents’ of the people fail to do so”; writing for TheNew Yorker, Richard Socarides looks more broadly at the standing questions involved in both cases.In his column for TheNew York Times, Frank Bruni discusses the “aura of inevitability” that surrounds the issue of gay rights, noting that “the choice before the justices is whether to be handmaidens to history, or whether to sit it out.”Slate’s Mark Joseph Stern criticizes the philosophical arguments against legal recognition of same-sex marriage in theamicusbrief authored by Robert George, while at TheAtlantic, Garrett Epps reminds his readers that the two judges who initially struck down these laws were Republican appointees. In an op-ed forLos Angeles Times, Michael Klarman argues that there will not be a public backlash to a broad marriage equality ruling, while in her column for TheWashington Post, Jennifer Rubin speculates that if DOMA is upheld, it will be “the worst of all possible worlds” for the GOP, as such a decision would “foment fighting within the Republican Party,” and “the GOP would once again be tarred as the party of exclusion, intolerance and hypocrisy.” The editorial board of TheWall Street Journalurges the Justices to “return their social jurisprudence to the measured, incremental approaches the Constitution intends,” because history has shown that the Court is not good at”legislating cultural change.”AtDefining Ideas, the blog of the Hoover Institute, Richard Epstein discusses how these cases force conservatives to “choose between an originalism that cuts strongly against any recognition of gay marriage, and a libertarianism that cuts equally strongly in the opposite direction.” Tara Siegel Bernard of TheNew York Timesexamines how avictory for gay rights in either case would still leave unresolved a number of complicated financial and legal questions facing same-sex couples.TheAtlantic‘s Garrett Epps confronts Justice Anthony Kennedy’s devotion to both state rights and gay rights principles that are at conflict in these cases but predicts that he will nonetheless vote to strike down Proposition 8. [Disclosures: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on anamicusbrief filed by former senators in support of Edith Windsor in Windsor.Tejinder Singh, also of Goldstein & Russell, P.C., was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Perry.]

Finally, the weekend’s coverage of the Court also highlights this mornings oral arguments inFTC v. Actavis, Inc., in which the Justices will consider whetherthe makers of brand-name drugs can pay generic-drug companies to keep the generic version off the market. Previews of the case come from Richard Wolf ofUSA Today,Diane Bartz of Thomson Reuters, Edward Wyatt of TheNew York Times. The editorial board of TheWashington Posturges the Court to side with the FTC because such arrangements present “a clear opportunity for collusion” and may therefore be anti-competitive. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, also represented Louisiana Wholesale Drug Company et al. as anamicusin support of the petitioner in this case.]

Briefly:

• Writing forthe Taking Noteblog of The New York Times, Lincoln Caplan opines that although Solicitor General Donald Verrilli may not be “inspiring,” “he is a deeply experienced and capable advocate who finds ways to make technical legal arguments that persuade a majority of justices.”
• AtCato@Liberty, Ilya Shapiro urges the Court to grant the cert. petition filed inLepak v. City of Irving, which asks the Court to decide whethera city violates the one-person, one-vote principle when it creates city council districts that, while roughly equal in total population, are malapportioned with regard to eligible voters.