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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 in Hollingsworth v. Perry, the challenge to California Proposition 8, will take place on Tuesday, while the Court will hear arguments in United States v. Windsor, the challenge to the Defense of Marriage Act, on Wednesday.

Previews of the arguments come from Joan Biskupic of Thomson Reuters, Howard Mintz of the San Jose Mercury News, Robert Barnes of The Washington Post, Geoffrey Fowler and Jess Bravin of The Wall Street Journal, Emily Bazelon of Slate, and Warren Richey of The Christian Science Monitor (herehere, and here). Mark Sherman of the Associated Press discusses a range of potential outcomes, while Adam Liptak and Alicia Parlapiano of The New York Times do so with a graphic on the Court’s options. The Wall 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 the Los 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 Court’s thinking – comes from Brad Knickerbocker of The Christian Science Monitor, as well as Lila Shapiro at The Huffington Post.  Both Adam Liptak of The New York Times and Michael Tackett of Bloomberg explore 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 The New York Times and Richard Wolf of USA Today, as well as NPR’s coverage of the moral objections in the briefs against same-sex marriage. At the same time, NPR’s Nina Totenberg discusses how Ken Mehlman, President Bush’s former political director, led the effort behind the amicus brief of prominent Republicans in favor of same-sex marriage; this blog‘s Lyle Denniston provides a more general overview of the amicus briefs in the challenge to Proposition 8. Coverage of the line for seats at oral arguments, which began forming on Friday, come from this blog‘s Lyle Denniston (with an update by Marty Lederman), NPR’s Elise Hu, the Huffington Post‘s Ryan Reilly and Will Wrigley, and Jada Smith at The Caucus blog of The New York Times.

In addition, commentators have already begun to weigh in on the issues. At the Volokh Conspiracy, Randy Barnett argues that the proponents of Proposition 8  should have standing to defend the ballot measure because principles 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 The New Yorker, Richard Socarides looks more broadly at the standing questions involved in both cases. In his column for The New 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 the amicus brief authored by Robert George, while at The Atlantic, Garrett Epps reminds his readers that the two judges who initially struck down these laws were Republican appointees. In an op-ed for Los Angeles Times, Michael Klarman argues that there will not be a public backlash to a broad marriage equality ruling, while in her column for The Washington 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 The Wall Street Journal urges 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.” At Defining 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 The New York Timesexamines how a victory for gay rights in either case would still leave unresolved a number of complicated financial and legal questions facing same-sex couples. The Atlantic‘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 an amicus brief 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 morning’s oral arguments in FTC v. Actavis, Inc., in which the Justices will consider whether the 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 of USA Today, Diane Bartz of Thomson Reuters, Edward Wyatt of The New York Times.  The editorial board of The Washington Post urges 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 an amicus in support of the petitioner in this case.]


  • Writing for the Taking Note blog 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.”
  • At Cato@Liberty, Ilya Shapiro urges the Court to grant the cert. petition filed in Lepak v. City of Irving, which asks the Court to decide whether a 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.


Recommended Citation: Marissa Miller, Monday round-up, SCOTUSblog (Mar. 25, 2013, 9:09 AM),