Breaking News

Tuesday round-up

Yesterday’s coverage of the Court was extensive, with much attention centering on the same-sex marriage cases slated for oral argument today and tomorrow. Other reports focused on yesterday’s oral arguments, the Court’s decision to grant cert. in another affirmative action case, and the death of Anthony Lewis, a two-time Pulitzer Prize-winning Supreme Court reporter.

Today the Court hears oral arguments in Hollingsworth v. Perry, the case involving a challenge to California’s Proposition 8 banning same-sex marriage. At this blog, Amy Howe provides background of the case in “Plain English.”  Other coverage of the case comes from Nina Totenberg at NPR, Adam Liptak of The New York Times, and David G. Savage and Maura Dolan at the Los Angeles Times. In an op-ed for The New York Times, David Cole urges the Court to rule narrowly, writing that “[p]rudence counsels that marriage equality should be allowed to continue gaining support in the states, and that a federal resolution should be left for another day.” The editorial boards of The New York Times and The Washington Post write, by contrast, that the time has come for the Court to declare equal rights for all couples. At, Ilya Shapiro and Jonathan Adler offer differing viewpoints on federalism and same-sex marriage in the context of Hollingsworth. Linda Feldmann of The Christian Science Monitor writes that the presence of the Chief Justice’s cousin at oral arguments is significant in that it shows that he “has had the opportunity to consider the issue of gay marriage through the experience of a family member, like many Americans.”

Tomorrow, the Court hears oral arguments in United States v. Windsor, the case challenging the Defense of Marriage Act, which defines marriage for federal purposes as between “one man and one woman.” Amy Howe previews the case in “Plain English” for this blog. On NPR’s All Things Considered (audio), Nina Totenberg profiles Edith Windsor, the eighty-three-year-old widow who is challenging the federal law. Lisa Leff of the Associated Press reports on how a decision to strike down DOMA would benefit same-sex military couples. [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.]

At this blog, Bloomberg’s Nick Taborek reports on the people who have been waiting for days outside the Supreme Court in the rain and snow in the hopes of gaining access to the oral arguments, and Max Mallory has posted pictures of the line outside the courthouse. Other coverage of the eager Court watchers comes from Ailsa Chang at NPR’s All Things Considered (audio), Jeremy W. Peters of The New York Times, Mary McGuire at ABC News’s The Note, Brian Bennett of the Los Angeles Times, and The Wall Street Journal’s Law Blog (video, subscription required). At the Associated Press, Jessica Gresko reports that, although tickets to Supreme Court oral arguments are free, some people have paid as much as six thousand dollars to have someone hold their place in line. Doug Kendall and Tom Donnelly argue in an op-ed for CNN that, given the widespread public interest in the same-sex marriage cases and the limited access to oral arguments, it is time to allow cameras in the courtroom.

Several commentators offer previews and analysis of both cases: Bloomberg Law (video) features an interview with Tom Goldstein, in which he assesses the potential outcomes in the cases and what to watch for at oral arguments. In a Q&A posted on this blog, Bloomberg’s Greg Stohr answers several frequently asked questions regarding the same-sex marriage cases. Other summaries of the main issues in both cases come from Erica Ryan at NPR, Erwin Chemerinsky at the ABA Journal, and Sidney Rosdeitcher and Katriana Roh at the Brennan Center for Justice.

At Jost on Justice, Kenneth Jost summarizes the arguments for and against subjecting sexual orientation to heightened scrutiny. Mark Walsh writes for Education Week about the implications of the same-sex marriage cases in the classroom. On his blog Dorf on Law, Mike Dorf analogizes to NCAA bracketology to make predictions on the possible outcomes in Hollingsworth and Windsor. In an op-ed for The New York Times, Dorothy J. Samuels speculates about how Justice Scalia might react at this week’s oral arguments. Warren Richey of The Christian Science Monitor reports on “wildcard” issue of standing in the same-sex marriage cases.

Other coverage of the same-sex marriage cases comes from Josh Gerstein at Politico, Sam Baker at The Hill, Mark Sherman of the Associated Press, Fox News, Michael Doyle of McClatchy Newspapers, Matt Smith at CNN, and Jonathan Capehart at The Washington Post.

Yesterday the Court heard oral arguments in Federal Trade Commission v. Actavis, which the Court is considering the legality of reverse payment agreements in patent litigation. In an argument recap for this blog, Lyle Denniston writes that, although the Court was skeptical of the government’s argument that such agreements should be presumed to be illegal under the antitrust laws, “an aroma of suspicion about why drug companies would [make such deals], except to delay competition at consumers’ expense, seemed to be in the air.” Other coverage of the oral arguments comes from Greg Stohr of Bloomberg News, Nina Totenberg at NPR (audio), Jesse Holland of the Associated Press, David G. Savage at the Los Angeles Times, Edward Wyatt at The New York Times, and Lawrence Hurley at Thompson Reuters. Lisa Larrimore Ouellette also discusses the oral arguments on her Written Description blog. [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.]

The Court also heard oral arguments yesterday in Oxford Health Plans v. Sutter, in which it considers whether an arbitrator can interpret a contract containing an arbitration clause to impose class-wide arbitration. At the Pacific Legal Foundation Liberty Blog, Deborah J. LaFetra reports that “[t]he argument as a whole was almost entirely devoted to the issue of whether the Court should defer to the arbitrator’s decision because it was based on state laws of contract interpretation.”

The Court also announced yesterday that it had granted cert. in Schuette v. Coalition to Defend Affirmative Action, in which it will consider whether a state may constitutionally ban the use of affirmative action programs in public college and university admissions. At this blog, Lyle Denniston writes that the Court’s decision to grant review yesterday was surprising, as “it had been expected generally that the Court would not act on that case at all until after it had decided the case of Fisher v. University of Texas,” which was argued on October 10 and involved a challenge to a public university’s affirmative action program. Additional reports on the cert. grant come from Nina Totenberg at NPR’s All Things Considered (audio), Mark Sherman at the Associated Press, Adam Liptak at The New York Times, Robert Barnes of The Washington Post, Shikha Dalmia at’s Hit and Run Blog, David Jesse at the Detroit Free Press, Lawrence Hurley of Reuters,  Katie Glueck at Politico, David G. Savage at McClatchy Newspapers, Adam Liptak of The New York Times, Warren Richey of The Christian Science Monitor, Debra Cassens Weiss at the ABA Journal, Brent Kendall at The Wall Street Journal’s Law Blog (subscription required), and Fox News. At Balkinization, Jason Mazzone writes about how the Court’s decision to grant cert. in Schuette might reflect on the Justices’ views in Hollingsworth v. Perry.

Adam Liptak at The New York Times reports that Anthony Lewis, a former Supreme Court reporter and columnist New York Times, “whose work won two Pulitzer Prizes and transformed American legal journalism” died yesterday at the age of eighty-five. Additional coverage of Anthony Lewis’s death comes from Denise Lavoie at the Associated Press, Mark Memmott at NPR, Debra Cassens Weiss at ABA Journal, and Andrew Cohen at The Atlantic.


  • The Pew Research Center released the results of a survey showing public approval of the Supreme Court at an historic low. The full report is available here. Jacob Gershman of the Wall Street Journal’s Law Blog (subscription required) and Katie Glueck at Politico also report on the survey.
  • Huffpost Live (video) features a panel discussion on the petition filed in the case of Lepak v. City of Irving, which asks the Court decide whether the principle of “one person, one vote” requires apportionment based on the number of eligible voters rather than the total population.
  • Rochelle Bobroff and Simon Lazarus at the Constitutional Accountability Center summarize the Court’s opinion from March 20 in Wos v. E.M.A., in which the Court held that the federal anti-lien provision of the federal Medicaid statute preempts conflicting state laws.

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Mar. 26, 2013, 9:22 AM),