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COURT CALENDAR 2012-2013
Topics: and this is just October's group! And
here's one sure to make it to the Supreme Court...next
Race in college admissions among other things
SUPREME COURT TERM 2012-2013 (as
reported on in the NYTIMES)
Supreme Court Declines Gun Law Case
By ADAM LIPTAK, NYTIMES
April 15, 2013
WASHINGTON — The Supreme Court on Monday said it would not weigh in on
a major Second Amendment question that has divided the lower courts:
May states bar or strictly limit the carrying of guns in public for
The justices turned down a case concerning a New York State law that
requires people seeking permits to carry guns in public to demonstrate
that they have a special need for self-protection. In urging the
justices to hear the case, the National Rifle Association called the
law “a de facto ban on carrying a handgun outside the home.”
As is their custom, the justices gave no reasons for declining to hear
In November, the United States Court of Appeals for the Second Circuit,
in New York, upheld the law. California, Hawaii, Maryland,
Massachusetts and New Jersey have similar laws.
In 2008, the Supreme Court ruled for the first time that the Second
Amendment protects an individual right to own guns, and it struck down
a District of Columbia law that barred keeping guns in homes for
“We are aware of the problem of handgun violence in this country,”
Justice Antonin Scalia wrote for the majority in the decision, District
of Columbia v. Heller. “But the enshrinement of constitutional rights
necessarily takes certain policy choices off the table.”
Aside from saying that total bans on the right to keep guns at home for
self-defense are unconstitutional, the court has said little else about
what other laws might violate the Second Amendment. On the other hand,
the Heller decision did include a long list of laws and regulations
that would be unaffected by the ruling. Among them were “laws
forbidding the carrying of firearms in sensitive places such as
In the lower courts, very few challenges to gun laws and gun
prosecutions since the Heller decision have succeeded.
A major exception came in December, just days before the Newtown,
Conn., shootings, when a divided three-judge panel of the United States
Court of Appeals for the Seventh Circuit, in Chicago, struck down an
Illinois law that banned carrying guns in public.
Judge Richard A. Posner, writing for the majority, said the ruling was
required by the Heller decision. The court gave the Illinois
legislature six months to modify the law.
Judge Posner reviewed the empirical literature about the practical
consequences for crime and safety of bans on carrying guns in public,
and he found it inconclusive. “Anyway,” Judge Posner wrote, “the
Supreme Court made clear in Heller that it wasn’t going to make the
right to bear arms depend on casualty counts.”
The Illinois decision is in tension with the one from New York, and
such conflicts often prompt Supreme Court review. Last month, the
federal appeals court in Richmond, Va., upheld the Maryland law.
The case rejected on Monday, Kachalsky v. Cacace, No. 12-845, was
brought by five New Yorkers who had been denied permits to carry
handguns in public. In urging the justices not to hear the case, Eric
T. Schneiderman, New York’s attorney general, said the state’s permit
requirement was a reasonable regulation that was consistent with the
Second Amendment. The Illinois law, by contrast, he said, amounted to a
Attorney General Lisa Madigan of Illinois has said that she will wait
to see what the state’s legislature does before deciding whether to ask
the Supreme Court to hear the decision striking down the Illinois law.
Down Age Limits on
By PAM BELLUCK, NYTIIMES
April 5, 2013
A federal judge ruled Friday that the government must make the most
common morning-after pill available over the counter for all ages,
instead of requiring a prescription for girls 16 and younger. In his
ruling, he also accused the federal government of “bad faith” in
dealing with the requests to make the pill universally available, and
said its actions had been politically motivated.
The decision, on a fraught and politically controversial subject, comes
after a decade-long fight over who should have access to the pill and
under what circumstances. And it counteracts an unprecedented move by
the Obama administration’s Health and Human Services secretary,
Kathleen Sebelius, who in 2011 overruled a recommendation by the Food
and Drug Administration to make the pill available for all ages without
In a decision in a lawsuit filed by advocates, the judge, Edward R.
Korman of Federal District Court, ruled that the government’s refusal
to lift restrictions on access to the pill was “arbitrary, capricious,
Judge Korman ordered the F.D.A. to lift any age and sale restrictions
on the pill, Plan B One-Step, and its generic versions, within 30 days.
“More than 12 years have passed since the citizen petition was filed
and 8 years since this lawsuit commenced,” the judge wrote. “The F.D.A.
has engaged in intolerable delays in processing the petition. Indeed,
it could accurately be described as an administrative agency
He added, “The plaintiffs should not be forced to endure, nor should
the agency’s misconduct be rewarded by, an exercise that permits the
F.D.A. to engage in further delay and obstruction.”
The F.D.A. and the Department of Health and Human Services declined to
comment on the ruling or the judge’s harsh criticisms on Friday morning
or to indicate whether the government would file an appeal, saying the
decision, which was issued in the Eastern District of New York, was
being reviewed. “The Department of Justice is reviewing the appellate
options and expects to act promptly,” said Allison Price, a department
Scientists, including those at the F.D.A., have been recommending
unrestricted access for years, as have major medical groups, including
the American Medical Association, the American Congress of
Obstetricians and Gynecologists and the American Academy of Pediatrics.
They contend that the restrictions effectively keep many adolescents
and younger teenagers from being able to use a safe drug in a timely
way to prevent pregnancy, which carries greater safety risks than the
In 2011, the F.D.A. commissioner, Dr. Margaret A. Hamburg, issued a
statement saying that after rigorous study, it was safe to sell Plan B
One-Step over the counter for all ages. But she was overruled by Ms.
Sebelius, the Health and Human Services secretary, the first time such
a public countermanding had ever occurred.
In her decision, Ms. Sebelius said that Plan B’s manufacturer had
failed to study whether the drug was safe for girls as young as 11,
about 10 percent of whom are physically able to bear children. But her
decision was widely interpreted in a political context because
emergency contraception has become an issue in the abortion debate and
because allowing freer access to adolescents would prompt critics to
accuse the Obama administration of supporting sexual activity for girls
of that age. At the time, President Obama supported Ms. Sebelius’s
decision, saying, “I will say this, as the father of two daughters: I
think it is important for us to make sure that we apply some common
sense to various rules when it comes to over-the-counter medicine.”
He added: “And as I understand it, the reason Kathleen made this
decision was she could not be confident that a 10-year-old or an
11-year-old going into a drugstore should be able — alongside bubble
gum or batteries — be able to buy a medication that potentially, if not
used properly, could end up having an adverse effect. And I think most
parents would probably feel the same way.”
The drug’s manufacturer, Teva Pharmaceuticals, declined to comment on
the court decision handed down Friday. As far back as 2003, the
manufacturer had petitioned the F.D.A. for Plan B to be available over
Plan B was approved in 1999 as a prescription-only product, and in
2001, the Center for Reproductive Rights filed a citizens petition for
it to be made available over the counter or without a prescription.
Scientists, including an expert advisory panel to the F.D.A., gave
early support to that request. But top F.D.A. officials rejected the
application because, some said later, they worried they would be fired
if they approved it.
After years of F.D.A. delay on a promise to reconsider the
morning-after pill decision, and as the lawsuit by advocates wound its
way through the courts, the Bush administration in 2006 allowed
over-the-counter sales to women 18 and older but required a
prescription for those 17 and younger. Then in 2009, Judge Korman
issued a ruling in the court case directing that the pill be made
available over the counter for those 17 and older. In his 2009 ruling,
the judge said the government’s actions on the pill had been driven by
politics and not science.
In his ruling on Friday, Judge Korman also raised the issue of
politics, saying that Ms. Sebelius’s decision was “politically
motivated, scientifically unjustified, and contrary to agency
Plan B One-Step consists of one pill with the active ingredient
levonorgestrel, which can block fertilization if taken within 72 hours
of sexual intercourse. It reduces the chance of pregnancy to one in 40;
without the pill, women have about a one in 20 chance of becoming
pregnant after unprotected sex. Two other drugs — Next Choice and
Levonorgestrel Tablets — contain levonorgestrel in a two-pill version.
The judge’s order also applies to those pills, although he said that if
the F.D.A. " actually believes there is any significant difference
between the one- and two-pill products, it may limit its
over-the-counter approval to the one-pill product.”
High court poised to upend civil
New London DAY
By HOPE YEN, Associated Press
Mar 31, 9:03 AM EDT
WASHINGTON (AP) -- Has the nation lived down its history of racism and
should the law become colorblind?
Addressing two pivotal legal issues, one on affirmative action and a
second on voting rights, a divided Supreme Court is poised to answer
In one case, the issue is whether race preferences in university
admissions undermine equal opportunity more than they promote the
benefits of racial diversity. Just this past week, justices signaled
their interest in scrutinizing affirmative action very intensely,
expanding their review as well to a Michigan law passed by voters that
bars "preferential treatment" to students based on race. Separately in
a second case, the court must decide whether race relations - in the
South, particularly - have improved to the point that federal laws
protecting minority voting rights are no longer warranted.
The questions are apt as the United States closes in on a demographic
tipping point, when nonwhites will become a majority of the nation's
population for the first time. That dramatic shift is expected to be
reached within the next generation, and how the Supreme Court rules
could go a long way in determining what civil rights and equality mean
in an America long divided by race.
The court's five conservative justices seem ready to declare a new
post-racial moment, pointing to increased levels of voter registration
and turnout among blacks to show that the South has changed. Lower
federal courts just in the past year had seen things differently,
blunting voter ID laws and other election restrictions passed by
GOP-controlled legislatures in South Carolina, Texas and Florida, which
they saw as discriminatory.
"Whenever a society adopts racial entitlements, it is very difficult to
get out of them through the normal political processes," Justice
Antonin Scalia said in oral arguments earlier this year, suggesting
that it was the high court's responsibility to overturn voting
protections overwhelmingly passed by Congress in 2006.
Justice Ruth Bader Ginsburg, part of the court's more liberal wing,
countered that while conventional discriminatory tactics may have
faded, new ones have emerged. "Congress said up front: We know that the
(voter) registration is fine. That is no longer the problem. But the
discrimination continues in other forms," she said.
The legal meanings of "equality," "racism" and "discrimination" have
been in flux since at least 1883, when justices struck down a federal
anti-discrimination law, calling it an unfair racial advantage for
former black slaves. Today, justices face the question of whether the
nation has reached equality by a 1960s definition or some new standard.
By some demographic measures, America has reached a new era. But the
latest census data and polling from The Associated Press also show race
and class disparities that persist.
President Barack Obama, the nation's first black chief executive, was
re-elected in November despite a historically low percentage of white
supporters. He was aided by a growing bloc of blacks, Hispanics,
Asian-Americans and gays, and a disproportionate share of women, who
together supported him by at least a 2-to-1 margin.
Another sign of shifting times: Among newborns, minorities outnumbered
whites for the first time last year, the Census Bureau reported. "The
end of the world as straight white males know it," one newspaper
headline said on the morning after the November election.
Still, issues linger by race, age and class:
-Jobs and income. Black poverty has fallen by half since 1959, to 27.6
percent, but is still nearly three times the poverty rate of whites.
Black and Hispanic men are twice as likely as whites to work in the
low-paying service sector. Since the 1970s, the unemployment rate for
blacks has remained double that of whites.
-Wealth. The wealth gap between whites and minorities is at its widest
since 1984. Predominantly younger minorities were hit hard when home
prices fell, while older whites were more likely to invest in 401(k)
retirement plans and stocks, which have rebounded since the recession.
The median net worth of white households was $113,149 in 2009, compared
with $6,325 for Hispanics and $5,677 for blacks.
-Class and education. By some measures, the gap between rich and poor
has stretched to its widest since 1967. Globalization and automation
have eliminated many mid-skill jobs, leaving a polarized pool of
low-wage work and high-skill jobs requiring advanced degrees. About 40
percent of whites age 25-29 graduate from college, compared with 15
percent for Latinos and 23 percent for blacks.
-Racial bias. Prejudice against blacks worsened slightly in the four
years since Obama was first elected in 2008, according to an AP poll.
In all, 51 percent of Americans expressed explicit anti-black
attitudes, compared with 48 percent in 2008. Questions designed to
ferret out subconscious bias raised the proportion with anti-black
sentiments to 56 percent, and the share of people expressing pro-black
Roderick Harrison, a demographer who is black, says he felt pride in
Obama's re-election, which to him reaffirmed a historic achievement not
only for black Americans but also a broader coalition of racially
diverse groups. Still, he worries that demographic change and Obama's
success may lead to a tipping point in the opposite direction, where
people in the United States are led to assume racial equality has fully
The strength of minority support behind Obama was aided by the 1965
Voting Rights Act and other protections, he said.
The term "minority" often refers to an unequal or disadvantaged status
and isn't always about numbers or counts, said Harrison, a former chief
of racial statistics at the Census Bureau. The District of Columbia,
Hawaii, California, New Mexico and Texas already have populations of
racial and ethnic minorities that collectively add up to more than 50
percent. Across the U.S., more than 11 percent of counties have tipped
to "majority-minority" status.
"Minority status is a matter of exclusion from full participation in
society, remaining long after a nation becomes `majority minority,'"
To Bradley Poole, 21, a senior at the University of Texas at Austin,
racial progress is measured by the little things. An advertising major,
Poole became a member and then president of the school's Black Student
Alliance, seeking camaraderie after noticing he often was the only
African-American in his classes.
"I definitely feel the difference," he said.
The university automatically grants admission to the top 10 percent of
students in each of the state's high schools. That helps bring in
students of different backgrounds because Texas high schools are highly
racially segregated, reflecting decades of segregated neighborhoods.
In a state where blacks now make up 11.5 percent of the population and
Hispanics 38 percent, the university's enrollment of 50,000 students
never rose above 3 percent to 4.5 percent black and 13 percent to 17
percent Hispanic. So in 2004 it decided to allow students who miss the
10 percent cutoff to be considered for admission based on a range of
socioeconomic factors, including race.
The share of black students has since increased slightly to 6 percent,
while Hispanic enrollment rose to 26 percent.
The university's affirmative action plan is being challenged in the
Supreme Court by Abigail Fisher, a white student who missed the cutoff
and was rejected. Fisher says she was denied fair consideration because
of her race.
A 2003 Supreme Court opinion said universities may consider race only
as one of several factors to promote diversity. The court said
diversity benefits everyone because in a global economy it fosters
leaders who can relate to people of different backgrounds.
In the last week, justices also agreed to take up a second affirmative
action case this year, deciding whether states may pass laws that
restrict the use of race preferences in college admissions. That case
involves an appeal to a lower court ruling that found a 2006
voter-approved ban in Michigan unconstitutional, reasoning that such
bans put minorities at a disadvantage.
The justices' decision to hear the Michigan case next fall - with their
decision in the Texas case still to be announced this spring - suggests
that the court will not decide in the Texas case to eliminate
affirmative action programs in higher education.
In the seven or so states that enacted bans on affirmative action at
their public universities, freshman enrollments of blacks and Hispanics
almost always fell afterward - as much as 50 percent at UCLA and the
University of California, Berkeley - although in some cases they later
rebounded. Those states now include Arizona, California, Florida,
Nebraska, New Hampshire, Oklahoma and Washington. A Supreme Court
ruling that further restricts affirmative action could shake up college
admissions policies nationwide, perhaps shifting focus to low-income
students or low-performing schools.
Before opting to enroll at Texas, Poole says he considered attending a
mostly white university in Iowa and a historically black college in
Louisiana. The college course he now values the most: an advertising
seminar that he attended along with a Hispanic, a female
student-athlete and an Asian-American. No one in that class was a
"minority," he said, and there was a range of perspectives.
Outside class, Poole says his organization has experienced racial
incidents. One white student ran up in "blackface" to where members
were gathered on campus, daring them to respond. A legal brief filed by
the National Association for the Advancement of Colored People on
behalf of Poole's group lists other racial incidents in recent years,
some of which led to suspensions or public apologies.
"Racial diversity is a conversation we need to have," he said.
Not since the tumultuous 1960s have U.S. ideals of equality been more
closely contested. Legal analysts say a Supreme Court holding of a
colorblind Constitution, either as a matter of law or practical effect,
could begin to emerge in two rulings on voting rights and affirmative
action due out by late June. A third ruling in the Michigan affirmative
action case will come next term.
The five conservative justices who make up a majority could overturn
the 2003 opinion or take a less dramatic step. The court may opt for
tighter restrictions that make it difficult for colleges to consider
race or rule narrowly that in a situation like Texas, its unique top 10
percent plan is enough on its own to achieve diversity.
In the court's other racial case, a conservative majority may declare
the 1965 Voting Rights Act constitutionally flawed for its focus on
racism in the South but leave it up to lawmakers to sort it out.
The court could also find a less sweeping, more technical way of
deciding the voting rights case, much as they did four years ago. Back
then, Chief Justice John Roberts suggested Congress should update the
law to reflect improved conditions in the South. Congress hasn't done
Prominent legal bloggers are already warning of sharp public reaction,
especially if justices strike down federal voting protections.
"If the court rules in a conservative direction, this will be a pivotal
year with regard to race in the Constitution and a year that could have
a devastating effect on racial diversity," adds Erwin Chemerinsky, dean
of the University of California, Irvine law school.
Has the country put its racist past behind it? That question is at the
core of the challenge to the Voting Rights Act. The arguments before
the court raised questions about whether new, more subtle forms of
voting discrimination have taken the place of Jim Crow laws.
In 1870, the Constitution guaranteed blacks the right to vote. But for
many decades afterward, whites in the post-slavery South used poll
taxes and literacy tests to block African-Americans from voting.
That changed in 1965 with enactment of the Voting Rights Act, which let
minorities file lawsuits against voter discrimination. Section 5 of
that law went even further, requiring nine states, mostly in the South,
and scores of counties and townships in seven other states, all with
histories of disenfranchisement, to get federal approval before making
any election change. Changes can include everything from a different
poll location to a new political redistricting map.
The voting act was renewed by Congress in 2006 for another 25 years.
The Justice Department and the federal courts last year used Section 5
to block voter restrictions in South Carolina, Texas and parts of
Florida. That saved hundreds of thousands of votes that would otherwise
have been lost in November, according to the Brennan Center for
Justice. Many were cast by blacks and Hispanics who turned out for
Lawyers for Shelby County, Alabama, which is challenging Section 5, say
the tables have turned in a nation that is now much more racially
diverse, with minority voters possibly holding an unfair advantage.
"You have a different constituency from the constituency you had in
1964," attorney Bert Rein told the justices. "Senators who see that a
very large group in the population has politically wedded themselves to
Section 5 are not going to vote against it."
Richard Hasen, a law professor at the University of California, Irvine,
and author of Election Law Blog, says the "smart money" now is on the
Supreme Court striking down Section 5, leading to consequences for
minority voters such as "more brazen partisan gerrymanders, cutbacks in
early voting and imposition of tougher voting and registration rules in
the formerly covered jurisdictions."
But if the court strikes down "a crown jewel of the civil rights
movement," he said, that could spark a public backlash that sends
Congress back to the drawing board, with any resulting new law applying
equally to all states.
Associated Press writer Mark Sherman
and AP Director of Polling Jennifer Agiesta contributed to this report.
© 2013 The Associated Press. All
rights reserved. This material may not be published, broadcast,
Take New Case on Affirmative
By ADAM LIPTAK, NYTIMES
March 25, 2013
WASHINGTON — The Supreme Court on Monday added a new affirmative action
case to its docket even as it is considering a major challenge to the
University of Texas’s race-conscious admissions program.
The new case, Schuette v. Coalition to Defend Affirmative Action, No.
12-682, concerns a voter initiative in Michigan that banned racial
preferences in admissions to the state’s public universities. In July,
the United States Court of Appeals for the Sixth Circuit, in
Cincinnati, ruled that the initiative, which amended the state’s
Constitution, violated the federal Constitution’s equal protection
The Texas case, Fisher v. University of Texas, No. 11-345, concerns
whether that state is allowed to use affirmative action. The new case,
in the words of a dissenting judge, asks whether a state denies equal
treatment by mandating it.
The appeals court decision was decided by an 8-to-7 vote. The eight
judges in the majority were all nominated by Democratic presidents. All
of the seven judges in dissent were nominated by Republican presidents.
(There was a wrinkle: Judge Helene N. White, who was in the majority,
was initially nominated by President Bill Clinton and was later
renominated by President George W. Bush as part of a compromise
involving several nominations.)
The new case will be considered in the term that starts in October. A
decision in the Texas case is expected shortly.
Justice Elena Kagan recused herself from the new case, as she
had from the earlier one, apparently because she worked on them as
United States solicitor general.
Background on Same-Sex Marriage Case
at Supreme Court
By ADAM LIPTAK, NYTIMES
March 25, 2013
WASHINGTON – The Supreme Court is scheduled to hear an hourlong
argument Tuesday morning over the constitutionality of Proposition 8,
California’s ban on same-sex marriage. Here is a look at the background
of the case, Hollingsworth v. Perry, No. 12-144, the issues it raises,
the lawyers who will argue it and the possible outcomes.
What is at stake? If the court is to establish a constitutional right
to same-sex marriage, it will be in this case and not in the narrower
one to be argued Wednesday, about the federal Defense of Marriage Act.
How did the case start? In 2008, just months after the California
Supreme Court endorsed same-sex marriage, the state’s voters amended
the state’s Constitution to repudiate the ruling and ban such unions.
Two prominent lawyers, Theodore B. Olson and David Boies, challenged
the ban as a violation of the federal Constitution on behalf of two
same-sex couples. The lawyers were ideological opposites who had
faced off in Bush v. Gore, the Supreme Court decision in late 2000 that
delivered the presidency to George W. Bush. Some gay rights activists
worried that their legal strategy was too aggressive.
After a trial, a judge in San Francisco struck down Proposition 8 in a
broad ruling whose logic would apply to bans around the nation.
California officials did not appeal the ruling against them.
The United States Court of Appeals for the Ninth Circuit, in San
Francisco, ruled that proponents of Proposition 8 had standing to
appeal the judgment against the state. The court then affirmed the
decision but on a narrower ground, saying voters were not entitled to
withdraw a constitutional right once it had been established by the
state Supreme Court. The reasoning of the appeals court decision,
calculated to appeal to Justice Anthony M. Kennedy, would not directly
threaten bans in other states.
What is the Obama administration’s position? Solicitor General Donald
B. Verrilli Jr. urged the Supreme Court to strike down Proposition 8,
focusing on a ground that would apply to California and seven other
states. He said it violated the Constitution’s equal protection clause
to confer all the benefits and burden of marriage on gay and lesbian
couples through civil unions but withhold the label “marriage.”
How long will the argument last? The argument is scheduled for one
hour. It will probably start at around 10:15 a.m. Eastern time, after
one or more of the justices summarize decisions released that day. In
major cases, Chief Justice John G. Roberts typically allows lawyers a
little extra time, so the arguments may not conclude until 11:30 or so.
Transcripts and audio recordings will be available by around 1 p.m.
Who is arguing? Charles J. Cooper, a lawyer for the proponents of
Proposition 8, will have half an hour. He will probably get questions
about his clients’ standing and the reasons offered to support the ban
on same-sex marriage. Mr. Olson, representing the couples who are
challenging the ban, has 20 minutes. He will most likely be asked why
the issue should be withdrawn from public debate and a fast-moving
political process. Mr. Verrilli will have 10 minutes, and he will
probably be asked about shifts in the Obama administration’s positions.
What legal standard will the Supreme Court use? In ordinary cases,
courts considering whether a federal law violates equal protection
principles merely ask whether the law can be justified by a rational
reason. That is a low bar, though several courts have struck down laws
discriminating against gay men and lesbians under that standard. Gay
rights advocates are hoping that the Supreme Court will embrace a more
robust standard of review, “heightened scrutiny,” which requires a
showing that the challenged law is “substantially related to an
important government objective.” Victory on that point could put all
same-sex marriage bans at risk.
What justifications have supporters of Proposition 8 offered? They say
that preserving the traditional definition of marriage will “further
society’s vital interests in responsible procreation and child
rearing.” Those interests would be undermined, they say, by “officially
redefining marriage as a genderless institution.” It is rational, they
add, to proceed with caution in changing the definition of marriage, to
respect societal judgments made through the democratic process.
How do supporters of same-sex marriage respond? They say that allowing
gay and lesbian couples to marry would not make it any more likely that
straight couples would act irresponsibly. They add that courts must
protect the fundamental rights of disfavored minorities.
Who are the justices to watch? Justice Kennedy probably holds the
decisive vote, and he is the author of the two leading gay rights
cases. But he is notoriously hard to read. Chief Justice John G.
Roberts Jr. may be intrigued by the standing question, and his
questions on that issue may suggest whether he may find dismissal on
that ground an attractive offramp.
What are the possible outcomes? The court may say the Constitution
requires all states to allow gay and lesbian couples to marry. At the
other extreme, the court may say the Constitution is silent on the
question, leaving states free to allow or reject same-sex marriage.
(There is no possibility that the court would ban same-sex marriage in
places that choose to permit it.)
There are also intermediate possibilities. The court could adopt a
rationale that would apply only to California along the lines of the
one endorsed by the Ninth Circuit. It could adopt the “eight state
solution” suggested by the Obama administration. Or it could dismiss
the case for want of standing, which would probably effectively allow
same-sex marriages in California, the nation’s most populous state.
Court to Take Up Gay Marriage
By ADAM LIPTAK, NYTIMES
December 7, 2012
WASHINGTON — The Supreme Court announced on Friday that it would enter
the national debate over same-sex marriage, agreeing to hear a pair of
cases challenging state and federal laws that define marriage to
include only unions of a man and a woman.
One of the cases, from California, could establish or reject a
constitutional right to same-sex marriage. Another case, from New York,
challenges a federal law that requires the federal government to deny
benefits to gay and lesbian couples married in states that allow such
The court’s move comes against the backdrop of a rapid shift in public
attitudes about same-sex marriage, with recent polls indicating that a
majority of Americans support allowing such unions. After last month’s
elections, the number of states authorizing same-sex marriage increased
by half, to nine.
The court’s docket is now crowded with cases about the meaning of
equality, with the new cases joining ones on affirmative action in
higher education and the future of the Voting Rights Act of 1965.
Decisions in all of those cases are expected by June.
The new California case, Hollingsworth v. Perry, No. 12-144, was filed
in 2009 by Theodore B. Olson and David Boies, two lawyers who were on
opposite sides in the Supreme Court’s decision in Bush v. Gore, which
settled the 2000 presidential election. The suit argued that
California’s voters had violated the federal Constitution the previous
year when they overrode a decision of the state’s Supreme Court
allowing same-sex marriages.
A federal judge in San Francisco agreed, issuing a broad decision that
said the Constitution required the state to allow same-sex couples to
marry. The decision has been stayed.
A divided three-judge panel of the United States Court of Appeals for
the Ninth Circuit, also in San Francisco, affirmed the decision. But
the majority relied on narrower grounds that seemed calculated to avoid
Supreme Court review or, at least, attract the vote of the presumed
swing member of that court, Justice Anthony M. Kennedy.
Judge Stephen R. Reinhardt, writing for the majority, relied heavily on
a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which
struck down a Colorado constitutional amendment that had banned the
passage of laws protecting gay men and lesbians. The voter initiative
in California, known as Proposition 8, had done something similar,
Judge Reinhardt wrote.
That reasoning, he added, meant that the ruling was confined to
“We do not doubt the importance of the more general questions presented
to us concerning the rights of same-sex couples to marry, nor do we
doubt that these questions will likely be resolved in other states, and
for the nation as a whole, by other courts,” he wrote.
“For now,” he said, “it suffices to conclude that the people of
California may not, consistent with the federal Constitution, add to
their state Constitution a provision that has no more practical effect
than to strip gays and lesbians of their right to use the official
designation that the state and society give to committed relationships,
thereby adversely affecting the status and dignity of the members of a
The Supreme Court has several options in reviewing the decision. It
could reverse it, leaving California’s ban on same-sex marriage in
place unless voters there choose to revisit the question. It could
affirm on the narrower theory, which would allow same-sex marriage in
California but not require it elsewhere. Or it could address the
broader question of whether the Constitution requires states to allow
The second case the court agreed to hear, United States v. Windsor, No.
12-307, challenges a part of the Defense of Marriage Act of 1996.
Section 3 of the law defines marriage as between only a man and a woman
for purposes of more than 1,000 federal laws and programs. (Another
part of the law, not before the court, says that states need not
recognize same-sex marriages from other states.)
The case concerns two New York City women, Edith Windsor and Thea Clara
Spyer, who were married in 2007 in Canada. Ms. Spyer died in 2009, and
Ms. Windsor inherited her property. The 1996 law did not allow the
Internal Revenue Service to treat Ms. Windsor as a surviving spouse,
and she faced a tax bill of some $360,000 that a spouse in an
opposite-sex marriage would not have had to pay.
Ms. Windsor sued, and in October the federal appeals court in New York
struck down the 1996 law. The decision was the second from a federal
appeals court to do so, joining one in May from a court in Boston. The
New York decision was the first from a federal appeals court to say
that laws treating same-sex couples differently must be subjected to
heightened judicial scrutiny.
The Windsor case made its way the Supreme Court unusually quickly
because the parties had filed an appeal from the trial court’s decision
in the case, also striking down the law, even before the appeals court
There was reason to think that Justice Elena Kagan was not free to hear
an appeal from the Boston case because she had worked on it or a
related case as United States solicitor general. The current solicitor
general, Donald B. Verrilli Jr., provided the court with a number of
other options, including Windsor, probably partly to make sure a case
of such importance could be heard by a full nine-member court.
The Obama administration’s attitude toward same-sex marriage and the
1996 law has shifted over time. Until last year, the Justice Department
defended the law in court, as it typically does all acts of Congress.
In February 2011, though, Attorney General Eric H. Holder Jr. announced
that he and President Obama had concluded that the law was
unconstitutional and unworthy of defense in court, though he added that
the administration would continue to enforce the law.
In May of this year, Mr. Obama announced his support for same-sex
After the Justice Department stepped aside, House Republicans
intervened to defend the law. They are represented by Paul D. Clement,
a former solicitor general in the Bush administration.
The new case is thus likely to feature a rematch between Mr. Clement
and Mr. Verrilli, who were antagonists earlier this year in the
arguments over Mr. Obama’s health care law.
Two Florida dog sniffing
cases in Oct.
Will Privacy Go to the Dogs?
By JEFFREY A. MEYER
16 October 2012
THIS Halloween, the United States Supreme Court will devote its day to
dogs. The court will hear two cases from Florida to test whether
“police dog sniffs” violate our privacy rights under the Fourth
Amendment to the Constitution. These two cases have not yet grabbed
many headlines, but the court’s decisions could shape our rights to
privacy in profound and surprising ways.
The Fourth Amendment protects the right of the people to be free from
“unreasonable searches and seizures.” Ordinarily, unless the police
trespass or otherwise intrude upon a reasonable expectation of privacy,
they need not have probable cause or a warrant to justify their
investigative activity. For decades now, the court has struggled with
what it means for a person to have a “reasonable expectation of
privacy” — especially when the police investigate with sense-enhancing
means or technology.
One of the new cases asks the court to clarify how accurate a dog must
be in terms of its past identification of contraband — for, as Justice
David H. Souter once warned in dissent, “The infallible dog, however,
is a creature of legal fiction.”
My wife and I learned this firsthand at the Supreme Court itself
several years ago. We were visiting the court for a reunion dinner of
former law clerks of Justice Harry A. Blackmun. My mistake was to drive
a car in which our dog — a tennis-ball-loving Australian shepherd —
often rode. As we drove up to the back gate of the court to enter its
highly secure underground parking garage, an officer emerged from a
guard shack with a fearsome bomb-sniffing German shepherd and circled
our car. The bomb dog suddenly perked up, and the officer coldly
instructed me to open the trunk of my car. I watched as the court’s
canine rose up on its haunches — tail wagging — and snagged from inside
one of my dog’s prized tennis balls. No bombs or contraband were found.
The second of the court’s new dog cases asks if the police may take a
drug-sniffing dog to the front porch of a home to sniff for evidence of
marijuana inside. The court has always accorded special privacy
protection for people’s homes. In 2001, the court ruled, in an opinion
written by Justice Antonin Scalia, that police officers violated a
homeowner’s privacy when they parked across the street from a home and,
without a warrant, used a thermal imaging device to scan the outside of
the house for signs of unusual heat inside that might be caused by
high-intensity lighting, which is often used to grow marijuana.
If the police can’t thermal-scan your home from the street, why let
them dog-scan it from your front porch? The government argues that a
dog is alerted only by illegal contraband, while a thermal imager is
set off more generally by “innocent” and “guilty” heat of all kinds
coming from a home — whether from grow lights or from, as Justice
Scalia noted in the thermal imager case, “the lady of the house” as she
“takes her daily sauna and bath.”
But, arguably, this distinction is misplaced. If the court rules for
the government in the home-sniff case, it is hard to see why the police
could not station drug-sniffing dogs outside the entrances to every
school, supermarket and movie theater as a routine form of drug
interdiction. Dog sniffs would never involve a privacy intrusion and
therefore would not trigger the requirement that the police obtain a
warrant or have individual suspicion.
Moreover, today’s dogs will give way to tomorrow’s high-tech
contraband-scanning devices that, under the reasoning pressed in the
dog cases, would free the government to conduct routine scans of
people’s homes or their bodies for all manner of contraband (or
possibly for noncontraband, like marijuana grow lights, that are most
commonly associated with illegality).
In the meantime, those of us who neither live in gated communities nor
build gates to keep the police from our porches will retain much less
privacy protection in our homes, despite the court’s past assurance
that “every man’s house is his castle” and even the “poorest man may in
his cottage bid defiance to all forces of government.” This is the
danger of basing the Constitution’s protection on the efficacy of a
dog’s nose or the latest high-tech sensing device rather than on the
privacy of the intimate space that a dog or device allows the police to
On Oct. 31, the court will have the chance to preserve a long-held
tenet of American privacy. The right choice is to affirm our rights in
our homes and our persons to be free, in the absence of emergency
circumstances, from the warrantless use of dogs and sense-enhancing
Jeffrey A. Meyer is a professor at
Quinnipiac University School of Law and a visiting professor at Yale