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A “view” from the Court: June 26, 2013

So we know today is the last day of the Supreme Court’s Term, and we know there are three outstanding cases, the two same-sex marriage cases (United States v. Windsor and Hollingsworth v. Perry), and a case about the federal Hobbs Act (Sekhar v. United States).

This seems to be a manageable number of cases for the last day of the Term, for reporters, for advocates, and the public. Not so long ago it was common for the Court to issue six or seven decisions on late-term opinion days. And we are fond of mentioning to people a reminder of the fact that things were different back in the era when the Court was deciding more than 150 cases per term, not the 70 or so of recent years.

It’s a passage from Page One of The New York Times on June 26, 1962, in the story about the Court’s decision in Engel v. Vitale, striking down the reading of an official prayer in New York State schools. The great Times Supreme Court correspondent Anthony Lewis, who died this past March just shy of his eighty-sixth birthday, wrote this: “The prayer case was one of seventeen decided by the Supreme Court in a crowded final day today before it adjourned for the summer.”

Seventeen? Today we will have three.

Several familiar faces are back in the courtroom today, and a few are not. The two gay couples in the Proposition 8 case (Hollingsworth), Kris Perry and Sandy Stier of Berkeley, California, and Paul Katami and Jeff Zarillo of West Hollywood, are in the public gallery. Their opponents, the official proponents of Proposition 8, may well be here but it seems unlikely. They have kept out of the media spotlight throughout the litigation.

Edith Windsor, the eighty-three-year-old New York City woman at the center of the Defense of Marriage Act case, is not here, as she was during oral arguments. She is in the Manhattan apartment of one of her lawyers, Roberta Kaplan.

David Boies, one half of the star legal team behind the challenge to California’s Proposition 8, is here again today, as he has been the past several sessions. But his partner in the litigation, Ted Olson, who has been coming to court every day even longer than Boies has, is not here.

Olson is in Philadelphia, preparing to argue a case in the U.S. Court of Appeals for the Third Circuit. Olson is representing the state of New Jersey in challenge to a federal law that prohibits sports betting in most states.

His adversary today will be one Paul Clement, a fellow former U.S. Solicitor General who also might have had reason to come to the Supreme Court today. He represents the Bipartisan Legal Advisory Group, the House Republicans who have intervened to defend DOMA. He also is involved in the outstanding Hobbs Act case, representing Giridhar Sekhar, a New York State businessman convicted of attempted extortion in that case.

Today, in Philadelphia, Clement is representing the top pro sports leagues in opposition to New Jersey’s attack on the federal Professional and Amateur Sports Protection Act.

Back in Washington, and for the record, the lawyer who argued for the proponents of Proposition 8, Charles Cooper, does not appear to be here. U.S. Solicitor General Donald B. Verrilli Jr., who argued in support of same-sex marriage in both the Perry and Windsor cases, is here as usual.

Just before 10 a.m., Walter Dellinger, who is behind what many believe was an influential amicus brief in the Prop 8 case on the issue of the standing of the proponents, arrives. Dellinger, who was an acting Solicitor General under President Clinton, takes a seat in the bar section next to Neal Katyal, who was an acting Solicitor General under President Obama. These SGs seem to have a special bond.

There are no retired Justices in the VIP section today. Justice Antonin Scalia’s wife, Maureen, is here, as is Justice Stephen G. Breyer’s wife, Joanna.

At 10, the Justices take the bench, and Chief Justice John G. Roberts Jr., says, “In Case 12-307, United States v. Windsor, Justice Kennedy has the opinion of the Court.”

Justice Anthony M. Kennedy begins his typically crisp delivery. “The Defense of Marriage Act, or DOMA, …” He looks up, as if he were tossing around an acronym no one had ever heard before.

Kennedy notes that the Court first must address preliminary matters such as the standing of BLAG (the Bipartisan Legal Advisory Group) — he says BLAG and then spells out B-L-A-G for an acronym that probably is less familiar to most in the audience. He refers to the “capable defense” of DOMA by BLAG on prudential issues.

It takes Kennedy about five minutes to move on to the merits, where he spends another two or three minutes describing the issues before making it clear where the decision is headed. While there are limited federal laws that regulate the meaning of marriage to further federal policy, “DOMA has a far greater reach,” he said.

It seeks to “injure” the very class New York seeks to protect. “In doing so, the federal law violates basic due process and equal protection principles,” Kennedy says.

He wraps up fairly quickly, noting that the decision is “confined to those lawful marriages” in states recognizing same-sex marriage.

It’s 10:09. In the bar section, some lawyers are dabbing their eyes with tissues, just as gay-rights advocates did ten years ago today when Kennedy announced his opinion in Lawrence v. Texas, striking down sodomy laws.

And just as then, Justice Scalia has something to say about it.

“As you know, I’ve filed one of the dissenting opinions,” says Scalia, whose opinion is joined by Justice Clarence Thomas and in part by Chief Justice Roberts. Justice Samuel A. Alito Jr. has a separate dissent, joined by Thomas, but he will not read his in court this morning.

Scalia attacks the majority first on its jurisdictional ruling before quickly moving on.

“Having gotten jurisdiction wrong, the majority gets the merits wrong as well–and for the same reason of self-aggrandizement,” Scalia says.

As he criticizes Kennedy’s opinion for its “condemnation” of DOMA, Scalia says, “Bear in mind that the object of this terrible condemnation is not some benighted state legislature and governor, but our respected co-ordinate branches, the Congress and Presidency of the United States.”

More than a few of the apparently liberal-leaning lawyers in the bar section turn to each other at that line and mouth comments that suggest, “Where was this respect for the co-ordinate branches yesterday with the Voting Rights Act decision?”

Scalia cites “nonmalevolent justifications” for DOMA, such as avoiding the federal tax confusion that will ensue when “a pair of women” marry in Albany and move to Alabama.

The rest of Scalia’s summary is full of punchy words, though he does not come across as angry as when his delivered his dissent in Lawrence ten years ago.

“[I]n the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement,” Scalia says. “To question its invalidation of this statute is to act … with the purpose to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens who are homosexual,” he says. “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

Scalia says the issue should have been left to the political process. “In the majority’s telling, however, this story is black-and-white: hate your neighbor or come along with us. The truth is more complicated. … We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the people decide.”

“[T]he Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat,” Scalia wraps up. “We owed both of them better. I dissent.”

It’s now 10:21. The Chief Justice explains that Scalia now has the majority opinion in Sekhar, the Hobbs Act case.

“I’m sorry about that,” Scalia says. “But this is shorter.”

Laughter breaks the tension, as it does a few moments later when he trips over references to “extortion” and “coercion” in the case. “Wow, almost blew that one,” Scalia says.

He is indeed, mercifully short. At 10:26, the Chief Justice says, “Finally this term, I have the opinion of the court in 12-144, Hollingsworth v. Perry.”

At this point, all in the courtroom know that Roberts has joined the dissent in the DOMA case. So there’s no expectation of a sweeping gay-rights decision from the Chief Justice. He methodically makes his way through the five-to-four decision, with its unusual line-up of Justices, that the proponents of Proposition 8 have no legal standing to press their defense of the ballot measure in the federal courts. The opinion reflects arguments made in Walter Dellinger’s brief.

“Petitioners have no role, special or otherwise, in enforcing Proposition 8,” Roberts says. What this means for gay marriage in California is something for debate outside the courtroom.

At 10:35 a.m., the Chief Justice says, “And now, I am authorized to announce that the Court has acted upon all cases submitted to Court for decision this term.”

(Whose authorization does he need?, we wonder.)

He recognizes four Court employees who are retiring, including Clerk William K. Suter, whom we discussed the other day.

Then, as the Justices depart behind their red velvet curtain, Marshal of the Court Pamela Talkin bangs her gavel and says, “The honorable Court is now adjourned to the time and place appointed by law.”

Recommended Citation: Mark Walsh, A “view” from the Court: June 26, 2013, SCOTUSblog (Jun. 26, 2013, 1:39 PM),