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Tuesday round-up

Last month, in United States v. Windsor, the Court held that Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as a union between a man and a woman for purposes of over a thousand federal laws, is unconstitutional.  Although the Court in Windsor did not address whether Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed in other states, is constitutional, yesterday a federal district judge in Ohio relied in the decision in Windsor (among others) in ordering the state of Ohio to recognize the marriage of two Ohio men – one seriously ill – who were recently married in Maryland.  Lyle Denniston covers the decision for this blog; at The Volokh Conspiracy, Will Baude comments on the decision, which he describes as, “for the most part, . . . a plausible interpretation of Windsor.”

Other coverage of the Court has focused on remarks by Justice Scalia at a meeting of the Utah Bar Association in Colorado.  According to the Aspen Times, Scalia argued that judges should not act as policymakers, and he suggested that judges in Nazi Germany had interpreted laws in the “spirit of the age.”  Jacob Gershman also covers the speech for The Wall Street Journal Law Blog (subscription required).  At the Constitutional Accountability Center, Elizabeth Wydra criticizes Scalia’s remarks, while at his eponymous blog Josh Blackman observes that law professor Cass Sunstein “made a similar point in the Chicago Law Review.”


  • At Appellate Daily, Michelle Olsen reports on remarks by Justice Stephen Breyer on the Court’s recent decision in Fisher v. University of Texas at Austin, in which the Court sent the case back to the lower courts for a closer examination of the university’s use of race in its undergraduate admissions process.  Breyer rejected the premise that the decision was insignificant, telling the audience that “[s]ometimes an important case is simply reaffirming another case, which reaffirmed another case.”
  • At this blog, Lyle Denniston clarifies the latest developments in Hobby Lobby v. Sebelius, a challenge to the Affordable Care Act’s requirement that large employers provide their employees with health insurance that includes access to a variety of forms of birth control.  The federal government must decide by September 25 whether it wants to seek Supreme Court review of lower court rulings blocking enforcement of that mandate.
  • In an op-ed for USA Today, Ilya Somin discusses some of last Term’s decisions in which the federal government lost unanimously and suggests that “[w]hen a president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss.”
  • In a post at ACSblog, Suzette Malveaux argues that last Term’s decision in American Express Co. v. Italian Colors Restaurant, in which the Court held that the Federal Arbitration Act does not allow courts to invalidate a contractual waiver of class arbitration on the ground that the cost of individually arbitrating a claim exceeds the possible recovery, is “one of the ‘major’ Supreme Court cases of the term” because it is “a gateway case — leading to the under-enforcement of substantive rights so dear to many of us.”

Disclosure:  Kevin Russell of the firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, served as counsel on an amicus brief in support of Edith Windsor.  Russell also was among the counsel on an amicus brief in support of the university in Fisher.

Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Jul. 23, 2013, 10:25 AM),