Yesterday’s coverage of the Court was again dominated by the two same-sex marriages cases before the Justices this week. Other coverage focused on the two opinions that the Court issued yesterday.

The Justices heard argument yesterday in United States v. Windsor, the challenge to the federal Defense of Marriage Act. Allison collected early coverage of the argument in her evening round-up, and Kevin Amer posted audio highlights from the argument for this blog. Other coverage of the argument comes from Jess Bravin of The Wall Street Journal, Michael Doyle of McClatchy Newspapers, Chris Geidner of Buzzfeed, Kenneth Jost at Jost on Justice, Ryan J. Reilly and Mike Sacks of The Huffington Post, Ruthann Robson of Constitutional Law Prof Blog, and Damon W. Root of Reason. Coverage of a different kind comes from Arthur Lien, who has posted sketches from the argument at Dana Milbank of The Washington Post focuses on the “particularly solicitous” treatment of Justice Kennedy in the argument, while Ilya Somin of The Volokh Conspiracy notes the “unaccustomed positions on standing” taken by both liberal and conservative litigants in the marriage cases, and Amy Davidson of The New Yorker focuses on Justice Ginsburg’s “skim-milk marriage” comment. At Dorf on Law, Michael Dorf focuses on “two painful exchanges” on federalism, and suggests answers that opponents of DOMA might have given on the issue. Josh Gerstein of Politico focuses on an unusual phrase from Deputy Solicitor General Sri Srinivasan’s argument supporting the federal government’s standing, while Jennifer Epstein of Politico notes that President Obama’s position on the marriage cases in an interview yesterday was in some tension with the Solicitor General’s argument on standing.

Most commentators agreed that the Court is likely to strike down Section 3 of DOMA if it reaches the merits of the case.  Ruth Marcus of The Washington Post writes that the Justices “appear, at least reading the oral-argument tea leaves, prepared to take the significant step of overturning the Defense of Marriage Act (DOMA) and granting full federal benefits to same-sex couples in states that recognize their marriages”; Charles Blow of The New York Times observes that “[o]n Prop 8, the justices seemed wary of overreaching, but on DOMA, most of the justices seemed to signal an unease or even all-out contempt for the law;” Jeremy Leaming of ACSblog writes that DOMA is “on wobbly ground”; Ilya Shapiro of Cato at Liberty predicts that Justice Kennedy will provide the fifth vote to strike down the act, with a solo opinion on federalism grounds; Damon Root of Reason says that DOMA is “in trouble”; Suzanne B. Goldberg of the Alliance for Justice argues that “if the Court reaches the merits, DOMA is dead.”

Other coverage focuses on Tuesday’s argument in Hollingsworth v. Perry, the challenge to Proposition 8.  At Huffington Post, Chris Stoll has a post discussing the brief of the National Center for Lesbian Rights in Hollingsworth.  The brief argues for a “one-state” solution on the theory that the California Supreme Court expressly recognized that Proposition 8 carved out same-sex marriages from the state’s equal protection clause.

Ilya Shapiro at Cato at Liberty suggests an answer to Justice Scalia’s question about when same-sex marriage became constitutionally required, but most commentary focuses on the procedural issues in the case. At The Volokh Conspiracy, Ilya Somin argues that “[a]s is often the case with Justice Kennedy, his intentions are not easy to read. He could well decide to uphold Proposition 8, or – more likely – choose not to reach the merits of the gay marriage issue at all. But if the Court does decide on the merits, it is not a foregone conclusion that Proposition 8 will survive.” And Alison Frankel writes in her On The Case blog for Thomson Reuters that the Court is likely to avoid a sweeping equal protection ruling by ” finding that Cooper’s clients [the official proponents of Prop. 8] did not have standing to bring an appeal.” Jeffrey Toobin of The New Yorker writes that “[i]t may be that the Court has determined to strike down DOMA, and leave the broader issue of requiring same-sex marriage for another year,” while Clifford J. Roskey of the Alliance for Justice writes that “it seems most likely that the case will be dismissed—either because a majority of the Justices agree that the sponsors of Prop 8 do not have standing, or because a majority is not able to agree on any particular result.” Douglas W. Kmiec takes a slightly different angle for The California Lawyer, arguing that “[t]he Court’s demonstrated lack of consensus on this threshold matter of jurisdiction will likely lead to a per curiam dismissal of a writ improvidently granted.” Both Damon W. Root of Reason and Jason Schwartz of The New York Times have posts considering what happens next if the Justices dismiss the case for lack of standing. Over at the Angry Bear Blog, Beverly Mann takes issue with Tom’s argument for this blog that there is “a basic tension between the theories of gay-rights advocates” in the two marriage cases over the issue of states’ rights, arguing that a Tenth Amendment ruling in Windsor would have no bearing on a Fourteenth Amendment ruling in Hollingsworth. 

And at the Election Law Blog, Rick Hasen offers predictions for the marriage cases, along with several of the other hot-button cases currently before the Court.

Other coverage focuses on the two decisions the Court issued yesterday. In Millbrook v. United States, the Court unanimously held that the law enforcement proviso to the Federal Tort Claims Act applies to all the activities of law enforcement officers within the scope of their employment, not just to their investigative or law enforcement activities. Coverage of the case comes from Erin Fuchs of Business Insider, Debra Cassens Weiss of The ABA Journal, Jon Terbush of The Week, John Cook of Gawker, The Associated Press (via The Sacramento Bee) and UPI.

In Comcast v. Behrend, the Court held that a class of Comcast subscribers was improperly certified because the plaintiff class’s proposed damages model was inadequate to show damages on a class-wide basis. Coverage comes from Greg Stohr and Alex Sherman of Bloomberg News, Edward Wyatt of The New York Times, Daniel Fisher of Forbes, Jesse J. Holland of The Associated Press, Andrew Longstreth of Reuters, Tom Donnelly of The Constitutional Accountability Center, and Alan White and Stephen Gardner of Public Citizen’s Consumer Law and Policy blog.  The editorial board of The Wall Street Journal calls on the Court to follow up on the Comcast decision by granting cert. in Whirlpool v. Glazer, another challenge to a class certification.


  • Steve Chapman of Reason criticizes the majority opinion in Florida v. Jardines, in which the Court held that a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment, for relying on a trespass theory rather than a privacy theory.
  • John Hockenberry of The Takeaway interviews Rick Hasen on the role that considerations of their legacies play in Justices’ decision-making.
  • Aaron Saiger of Concurring Opinions comments on the debate over deference to agency interpretations of their own rules recently on display in Decker v. Northwest Environmental Defense Center.
  • Richard Tofel of Pro Publica reports on the influence of the late Anthony Lewis on the Court.
  • The editorial board of USA Today calls on the Justices to allow cameras in the courtroom, with Nancy S. Marder providing the contrary arguments.

Posted in Round-up

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Mar. 28, 2013, 4:17 PM),