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Tuesday round-up

Last week’s oral arguments in Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to the federal Defense of Marriage Act) continued to dominate yesterday’s news coverage of the Court. Other reporting focused on the orders issued yesterday from the Court’s March 29 Conference.

On the issue of same-sex marriage, David Cole writes for The New York Review of Books that “[a]t some point, the Supreme Court will recognize, squarely and clearly, that it is unconstitutional to exclude gays and lesbians from the benefits (and burdens) of marriage,” but that it is unlikely to do so in either of these two cases.  At Slate, Nicholas Stephanopoulos challenges the argument that the courts should leave the issue of same-sex marriage to be resolved through the political process by pointing to Congress’s “consistent failure to pass pro-gay policies even when a majority of the public supports them.” (Hat tip: How Appealing.)  Ramesh Ponnuru at Bloomberg View argues that landmark cases such as Brown v. Board of Education, the 1954 decision that outlawed segregated public schools, have led to many Americans to falsely view the Court as a heroic institution playing a central role in achieving greater freedom and equality, and that this view “makes us more averse to proposals to reduce judicial power than we otherwise would be.”  At Jost on Justice, Kenneth Jost recaps on the arguments and notes that, although many are not predicting “decisive victories for marriage equality in either case,” Court watchers “were all but unanimous in scoring both sessions as TKOs for the gay marriage proponents.”  At The Huffington Post, David Fontana observes that “the language . . . the Court used to talk about gay marriage this past week lacked the polarizing moral denunciations of homosexuality” used in past cases, and that this change marks “a major step forward regardless of how the Court decides these two cases.”

Regarding the constitutional arguments in Windsor, Mike Dorf of Dorf on Law considers whether the federalism argument standing alone suffices to render DOMA unconstitutional; he concludes that, although the statute is arguably invalid because it denies equal protection, it is not unconstitutional purely as a matter of federalism. At Balkinization, Jason Mazzone argues that the oral arguments in Windsor overlooked another viable option: “a modest ruling from the Court on Edith Windsor’s actual claim,” which “presents an issue of the constitutionality of the federal law of inheritance tax.”

On the issue of standing in Hollingsworth, Cass R. Sunstein discusses at Bloomberg View why the Court has in some cases opted to abstain from resolving constitutional questions on the merits, as appears likely in the challenge to Proposition 8, and notes that “[i]n constitutional law, as in ordinary life, the line between cowardice and prudence can be thin, but it is prudent, and sometimes even brave, to try to draw it.” Melissa Griffin of the San Francisco Examiner argues that the Court should find that the proponents of ballot initiatives such as Proposition 8 have standing defend laws when the state declines to do so, because otherwise public officials would in effect wield a veto power over laws they don’t like simply by refusing to defend them. [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 an amicus brief filed by international human rights advocates in support of the respondents in Hollingsworth.]

Other coverage focused on the orders released yesterday from the Court’s March 29 Conference. At this blog, Lyle Denniston reports that the Court granted certiorari in Atlantic Marine Construction Co., Inc. v. J-Crew Management, Inc., a case presenting the question of how federal courts should interpret forum-selection clauses in business contracts. Greg Stohr of Bloomberg and Lawrence Hurley of Reuters report that the Court vacated and remanded the Sixth Circuit’s decision granting class certification to a group of consumers in Whirlpool Corp. v. Glazer for reconsideration in light of the opinion issued last week in Comcast v. Behrend, in which the Court held that the plaintiff class 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.] In his Sidebar column for The New York Times, Adam Liptak reports that the Court instructed the Virginia attorney general to file a response to the cert. petition in Wilson v. Flaherty, which presents the question of whether an individual convicted of rape but no longer in custody may challenge his subjection to state sex offender registration requirements through a federal habeas corpus petition based on new evidence proving his actual innocence of the underlying crime.

Finally, the Court denied certiorari in several noteworthy cases. Greg Stohr of Bloomberg reports that the Court declined to hear Spirit Airlines v. Department of Transportation, a case involving a First Amendment free speech challenge to a federal rule requiring airlines to disclose the full price of a ticket – including taxes and fees. Additional coverage comes from Michael Doyle at McClatchy Newspapers, Warren Richey of The Christian Science Monitor, Lawrence Hurley of Reuters, and Ben Mutzabaugh of USA Today. The Los Angeles Times’s David G. Savage reports that the Court has declined review of Lepak v. City of Irving, a case that sought to challenge the common practice of counting all residents, not just eligible voters, when adjusting the size of voting districts. Lawrence Hurley of Reuters reports that the Court denied review of an appeal by Ward Churchill, who claimed that he was fired from a tenured professorship at the University of Colorado in retaliation for controversial statements he made about the victims of the 9/11 attacks.


  • Mark Walsh of the ABA Journal previews Salinas v. Texas, a case scheduled for oral arguments on April 17 in which the Court will decide whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the co-counsel to the petitioner in this case.]
  • Fox News (video) examines Martin Clancy and Tim O’Brien’s book “Murder at the Supreme Court,” which looks at the history of death penalty cases before the Court.
  • The Associated Press (reprinted at Boston Herald) reports that retired Justices Sandra Day O’Connor and David Souter participated in a panel discussion yesterday at Harvard Law School focusing on the issue of civic education.

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Apr. 2, 2013, 12:30 PM),