Monday round-up

After last week’s oral arguments in the same-sex marriage cases, this weekend’s clippings continue to focus on both Hollingsworth v. Perry, the challenge to California Proposition 8, and United States v. Windsor, the challenge to the federal Defense of Marriage Act.  Nina Totenberg of NPR discussed the arguments in both cases on NPR’s Weekend Edition, while in The New York Times, Adam Liptak speculates that the conservative Justices were behind the original decision to grant cert. in Hollingsworth v. Perry because they believed that “that their chances of winning would not improve with time.” Richard Wolf of USA Today explains that even if the Court resolves Perry on narrow, procedural grounds – creating “progress without precedent” – many proponents of same-sex marriage will still consider this a victory. Jess Bravin of The Wall Street Journal discusses the standing issues in Perry as well as United States v. Windsor, while Howard Mintz of the San Jose Mercury News observes that at oral arguments, many of the Justices tipped their hands and revealed where they stood. In the Los Angeles Times, David Savage writes that the difficulty of these cases may stem from the fact that they pit equal rights against having the people, not the Court, decide controversial social issues; similarly, Tom Curry of NBC News reports that these cases have reignited the debate over the Court’s role in social change. At this blog, Marty Lederman adds to his previous post and discusses two more possible outcomes in Perry.  [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, was among the counsel on anamicus brief filed by international human rights advocates in support of the respondents in Perry.]

In the National Law Journal, Tony Mauro argues that the line for seats at argument was “a direct result of the court’s arrogant and stubborn refusal to allow cameras to record and broadcast its proceedings,” urges the Justices to allow cameras into the courtroom, and adds that “the notion that spectators have to camp out or spend money to see a public institution do public business is offensive.” In his column for the Los Angeles Times, Doyle McManus predicts that if the Court strikes down DOMA and issues a narrow ruling on Proposition 8, “legal and political chaos” will result, with “a growing number of liberal blue states moving to legalize gay marriage, and a growing number of conservative red states enacting bans.” And in The New York Times, Maureen Dowd criticizes the Justices’ attitudes at arguments, noting that “the human factor, how demeaning it feels to be shunted to a lower plane than your fellow citizens, was ignored.”

Finally, this weekend’s clippings also examined the Court’s views on affirmative action in light of this Term’s Fisher v. University of Texas at Austin, as well as next Term’s Schuette v. Coalition to Defend Affirmative Action, a challenge to Michigan’s ban on the use of affirmative action in (among other things) university admissions, in which the Court granted cert. last Monday. At UPI, Michael Kirkland asks whether this grant “sound[s the] death knell” for affirmative action; similarly, James Taranto of The Wall Street Journal predicts that the Court will leave the door ajar for racial preferences in Fisher, and then use Schuette as an opportunity to revisit Grutter. Hope Yen of the Associated Press explores the Court’s views on race in today’s society, discussing these cases in conjunction with Shelby County v. Holder. 

Briefly:

• Adam Liptak of The New York Times reviews Out of Order, a new book by retired Justice Sandra Day O’Connor, and concludes that it “deliver[s] a disjointed collection of anodyne anecdotes and bar-association bromides about the history of the Supreme Court.”
• At this blog, Sergio Campos analyzes last week’s opinion in Comcast v. Behrend, in which the Court held that the plaintiff class of Comcast subscribers was improperly certified under Rule 23(b)(3) because the class’s proposed damages model could not show damages on a class-wide basis. [Disclosure: Goldstein & Russell is among the counsel to the respondents in this case.]
• Terry Baynes of Reuters reports on predictions that the Court will take the middle road in FTC v. Actavis and require district courts to evaluate, case by case whether a deal is anticompetitive. [Disclosure: Goldstein & Russell represented Louisiana Wholesale Drug Company et al. as an amicus in support of the petitioner in this case.]
• The Washington Post‘s Robert Barnes discusses the Court’s recent opinion in Florida v. Jardines, noting that there was an “unlikely sounding coalition of conservatives and liberals [who were] unwilling to defer to law enforcement.”