Tag Archives: Supreme Court of the United States

A brief thought on King v. Burwell

Last Wednesday, the Supreme Court heard oral arguments in King v. Burwell, the GOP’s latest legal strike against the Affordable Care Act (ACA), known colloquially as “Obamacare.” The justices appeared to split largely along familiar ideological lines (with Chief Justice John Roberts remaining mostly inscrutable), but one exchange — no pun intended — stood out to me.

I’ve excerpted the relevant portions below:

 

Something about Justice Scalia’s comments here immediately struck me as bizarre, but I couldn’t figure out exactly why the first time I read it.

I think now I do. The thing is, we’ve come to expect a scarily high level of partisanship on the Court, echoing our broader political divide in the legislature and, indeed, in the nation at large. So it’s no surprise to see Scalia, Alito, et al. bringing out the knives against the solicitor general, Donald Verrilli, Jr. (just as it’s no surprise to see Kagan, Sotomayor, et al. do much the same to Michael Carvin on the challengers’ side).

But what’s interesting here is the specific reasoning Scalia employs in his favor. He had at least two options for how to defend the challengers’ reading of the law. The first, and more obvious, tactic would have been to simply characterize the phrase “Exchanges established by the State” as unambiguous under a strict textualist reading of the ACA, and leave it at that. In essence, he could have just argued that the possibly disastrous effects of eliminating healthcare subsidies in numerous states is simply not a judicial matter and that the law must be interpreted as written, regardless of the outcome. Moreover, this would have been fully consistent with Scalia’s stated originalist approach to jurisprudence.

But he didn’t stop there. Instead, he stated or implied multiple times (in the excerpts displayed above) that, if the consequences were as terrible as Verrilli believed, Congress would step in to fix the problem — in this case, the loss of health insurance to citizens who would have otherwise been covered by Obamacare subsidies.

This is a strikingly odd perspective. As anyone with even a passing familiarity with American politics knows, the chance of a Republican-led Congress — in both houses — enacting emergency legislation to save ACA subsidies is practically zero. Scalia, as someone intimately aware of the American political process, knows this better than most. And so did the audience attending the oral argument, which burst into laughter when Verrilli countered: “Well, this Congress, Your Honor…”

In other words, in a brazen attempt to persuade his fellow justices of the merits of the challengers’ arguments, Scalia made a deliberately disingenuous prediction about the likely outcome of ruling in their favor. Indeed, the idea that Congress would fix Obamacare is so obviously comical that it underscores just how desperate Scalia is to dismantle it: he would gladly suffer the public indignity of making an obviously absurd political prognosis for the mere opportunity to shape his undecided colleagues’ eventual ruling.

This may or may not tell us something about the Court’s likely decision — perhaps it means Scalia is privy to wavering on the part of Kennedy or Roberts, and perhaps not — but it tells us much about the lengths to which Justice Scalia will go to achieve an ideological objective.

A guide to SCOTUS Search

Guide version 1.0 — February 18, 2015

Last Wednesday I posted an intro note to SCOTUS Search: the free, searchable online database of United States Supreme Court oral argument transcripts that Victoria Kwan and I just launched in beta. The post recounted the development of the idea behind SCOTUS Search, as well as some plans for the project going forward.

Now that the site has seen some traffic (which is extremely exciting!), I figured it would be worthwhile to put together a short guide with some tips on how to best use the site, some caution about its exhaustiveness, and various other marginalia. This post is likely to be updated over time as more things come to mind.

Before I say anything else, though: thank you so much for checking it out! This is a project Victoria and I have been working on, on and off, for the better part of a year now, so it’s really gratifying to see people making use of the site and tweeting out their favorite search results and obscure judicial references. I can’t wait to see what legal writers, academics, journalists, and Court-watchers do with this data going forward.

So, in no particular order:

  • The first thing I must emphasize again, as I did in the intro post (and as is displayed prominently on the SCOTUS Search home page), is that SCOTUS Search is still in beta. What does this mean in practice? A lot of things, actually:
    1. The database of oral argument transcripts is neither exhaustive nor 100% error-free. I don’t mean this to be alarming in any way, but just as a fair warning. As Oyez notes, the Supreme Court only “installed an audio recording system in 1955.” (You can see a visual representation of this lack of transcripts prior to 1955 in the graph displayed on the SCOTUS Search home page.) While Oyez has compiled a truly astounding library of transcripts, there are still many blank cases from 1955 onward that we have therefore been unable to include in SCOTUS Search — as our only sources for transcripts so far are Oyez and the Supreme Court itself. Moreover, as the above link makes clear, the official recordings have endured various hiccups over the subsequent decades that had an impact on transcribers’ ability to ensure perfect quality at times.
    2. For example, in many cases, justices and attorneys are not identified by name in the transcripts and are referred to, instead, as “Unidentified Justice” or “Unknown Speaker.” In other cases, the same speaker is identified differently across cases: “Justice Scalia” and “Justice Antonin Scalia,” for example. Elsewhere, we found examples of misidentification, as when John Roberts was referred to in one transcript as “Chief Justice John Roberts” even though the case was argued prior to his appointment in OT 2005 and Roberts was actually appearing as an attorney arguing before the Supreme Court at the time. Finally, there are also straight-up typos, as pointed out here and here, for example. (Speaking of which…please let us know whenever you find any errors!)
    3. We have attempted to correct as many of these ambiguities and errors as possible. But given the scale of the data, we expect to find hundreds or even thousands of similar examples in various other cases. In the near future, I hope to add an “error correction” form so that registered users can submit changes to transcripts, which we can then review and approve to ensure high accuracy.
  • A lot of you who visited via a link in the Twitter mobile app probably already noticed this, but…SCOTUS Search does not currently play nice with mobile. (Not sure about tablets, as neither Victoria nor I own an iPad and haven’t tested on one yet.) I absolutely plan to add mobile functionality, but I don’t have a specific ETA just yet.
  • There are a lot of “search type” options — eight, to be precise. All of them are case-insensitive: your capitalization, or lack thereof, doesn’t matter at all. But they are super sensitive to spelling, typos, spaces, and so on. E.g. A search for “Superman” ≠ “Super man”. This is another weakness I plan on addressing in the future. Anyway, for most people’s purposes, the three most useful search types will be:
    1. Oral argument: Exact phrase. This search type works exactly as advertised: for example, typing “in my underwear” (without quotes!) will bring you to the sole result for a very confusing, and confused, rumination on bullying and the frailty of human memory by Justice Stephen Breyer. As of today (2/18/2015), using quotation marks with this search type will only return results that actually include quotation marks in the transcript text. Assuming that’s not what you’re looking for, don’t use quotation marks when selecting the “Oral argument: Exact phrase” search type.
    2. Oral argument: All search words. This is very similar to the above search type, except the words in the phrase don’t have to be adjacent to each other in the transcript text. If you type, “baseball hockey,” for example, the results will return all statements containing both words, whether or not they were said immediately consecutively.
    3. Oral argument: Any search words. This will return any statement containing any of the words in the search box.
  • Sign up as a user! You don’t have to do it to use SCOTUS Search, but here are some of the benefits:
    1. It’s free.
    2. You get to write notes on individual cases and statements, as well as favoriting them (for bookmarking purposes). You can even decide whether to make your notes private (viewable only to yourself, which is the default) or public (which can be viewed by any other registered users), and you can look at other users’ public notes as well.
    3. You can export the case titles and metadata of search results (to CSV or XLS format), instead of simply viewing them on the site.
    4. You can save all your searches and set your default search type.
    5. You can receive email alerts any time a case transcript is added or updated (and, as an added bonus, the emails let you know when SCOTUS Map — our sister project — has been updated too).
    6. You get to set your own time zone preferences! Which is, I guess, pretty cool.

Thanks again for checking it out!

Jay

Up next: SCOTUS Search

SCOTUS Search

A little over six months ago, I wrote a short blog post called “Introducing SCOTUS Map.” In the time since, the project has really grown up, entirely due to Victoria‘s relentless research and updates. SCOTUS Map now displays more than 150 events spanning from last summer to this upcoming one, along with links to registration information, transcripts, audio, and video (where available).

Of late, we’ve added new features as well: there are seven default views to choose from (including “Summer 2014,” “2014 Term,” “Summer 2015,” “Future Events,” and so on), the sidebar can be hidden to enlarge the map, and — as of this week — visitors can now subscribe to daily or weekly email alerts in order to receive updates any time new events are added. (If no new events come through that day or week, don’t worry: we won’t send you an email.)

But believe it or not, SCOTUS Map wasn’t the first Supreme Court project Victoria and I had started. Back in April of last year, three months prior to SCOTUS Map’s launch, we took the first steps towards building the first free, searchable online database of Supreme Court oral argument transcripts.

Currently there are two principal repositories of freely available Supreme Court oral argument transcripts. The first is the recently redesigned Supreme Court web site, which hosts transcripts dating back to the 2000 term. The second, and far more exhaustive, resource is Oyez.org, which holds oral argument transcripts dating back to the 1950s.

The idea for SCOTUS Search had first come up in this context early last year: Victoria was writing pieces on the Supreme Court for my blog and needed to delve into the oral argument proceedings in order to conduct research. While she could usually locate a specific transcript on either Oyez.org or SupremeCourt.gov, each one would have to be searched individually. So if, for example, she was looking for all mentions of “gay marriage” before the Court, she’d have to open every single case that had ever been argued over the past decade or two.

This was clearly an impossible task. Making matters worse, the Supreme Court’s hosted transcripts are stored in PDF format, which — while searchable on an individual basis — are not conducive to automated bulk searching across documents. Oyez boasted a much larger library of transcripts in plain-text, which was far superior from a technical standpoint. However, the site had no full-text transcript search engine, meaning that searching for words or phrases would still require manually opening hundreds or thousands of cases. Additionally, some transcripts were missing and others appeared to cut off partway through.

Starting in 2013, Victoria mentioned to me on numerous occasions her frustrations with the arduous research process. And thus an idea was eventually born last year: if we could somehow consolidate Supreme Court oral argument transcripts across sources and standardize them into a database, we could make the full texts searchable online for free, for the very first time.

Over nine months later, the result of this project is SCOTUSSearch.com. Containing over 1.4 million individual statements spoken in nearly 6,700 Supreme Court oral arguments from the 1950s through the present, the site allows users to search the full text of oral argument transcripts using search options that include filters for speaker and Court term. SCOTUS Search is still in beta, so there are doubtless errors and bugs that we’ll discover over time. In fact, we hope that new visitors to the site will help us out in this regard: if something isn’t working or doesn’t make sense, please let us know so we can fix it.

The recommended way to start is to sign up for a free login. This isn’t required in order to search through transcripts, but there are a lot of features which are only available to registered users: adding notes to cases and individual statements (and sharing them with other users, if you prefer), saving your search history, and marking cases and statements as favorites, for example.

An example search result page.

We’re also planning on adding even more substantial tools for registered users only, including the ability to submit transcript revisions and error/typo fixes where applicable. My long-term wish list includes expanding SCOTUS Search beyond the Supreme Court, to incorporate oral arguments from the federal appeals courts (and perhaps international courts). Imagine being able to trace the thought process and rhetoric of Supreme Court justices back to their days on lower appeals courts, or doing the same with attorneys who have argued before multiple courts. In short, the launch of SCOTUS Search is just the beginning of the road, not the end. There’s plenty more to come.

Finally, it cannot be stated clearly enough what a debt this project owes both to the Supreme Court, for hosting over a decade of transcripts, and especially to Oyez, whose tireless transcription and metadata compilation over the years has proved invaluable to many a researcher and journalist, and whose extensive library of transcripts made SCOTUS Search possible.

So take a look when you get the chance, and let us know what you think! Also, don’t forget to follow us on Twitter.

Thank you!

Justice Breyer’s Full Answer on Live Audio at SCOTUS Oral Arguments: Still Conservative with a Small “C”

During the question-and-answer portion of Justice Stephen Breyer’s international law lecture at the Brookings Institution yesterday, an audience member from the Coalition for Court Transparency asked the justice about the possibility of live streaming audio from Supreme Court oral arguments. Justice Breyer gave a nearly six-minute reply which reiterated some of the same arguments he has made against live video in the past, but the answer did contain an interesting new tidbit at the end in which he mentions recent audio “experiments” from the D.C. Circuit.

Michelle Olsen of Appellate Daily published a transcription of the last part of this answer yesterday evening. The following is my transcription of the full question and answer, which I have slightly edited for clarity.

Breyer at Brookings

The relevant question starts at the 2:12:00 mark of the Brookings Institution video.

Audience Member: Alright, this is not a hot political question; it’s a hot legal question. My name is Karl, I’m with the Coalition for Court Transparency.

You referenced five areas [where] American judges might do well to consult foreign sources or foreign legal thought. High courts in Canada and the U.K. and many, many other countries have cameras.

I don’t want to know if you support cameras, because I already know where you stand on cameras in the Supreme Court–but there’s a nice lounge at the Supreme Court where Supreme Court bar members are allowed to listen to live audio. Why don’t we allow the live audio to be transmitted outside the building, to everybody else who might not have the money or means to come to Washington, D.C. and wait in line outside in the cold, [so that they can] listen to such audio?

Justice Breyer’s answer to this question begins at the 2:14:08 mark.

Justice Breyer: Now, to give my unsatisfactory answer to [the question] about cameras in the courtroom under the guise of radio, you have to understand that it’s a pretty tough question, and we’re pretty conservative–with a small “c”–when you start talking about our institution. I mean, we don’t know what would happen if we let cameras in the courtroom. And the risks would be–two [risks], and we don’t know what the answer is. Three [risks], actually.

One risk is that people would begin to think that the oral argument–which is about 5% [of what the Supreme Court does], almost all of our material is submitted in writing–they would begin to think that that was what we’re about. The oral argument! That would be misleading, but not deadly.

What might be worse is that people do relate to people. That’s good. You relate more to your family than you relate to your friends, than you relate to people you don’t know, and people you see you relate to more than people you just hear about, and statistics you relate to not at all. OK. That’s the human condition, and I think it’s probably a good one. But the job of an appellate court–and particularly our court, which is about three levels of appellate courts, or two–is to think about how our decision is affecting the 300 million people who aren’t in the courtroom. They’re not there. But they will possibly be affected by our ruling. And people might, well, just look–to the good guy and the bad guy. And that might have an impact on the effectiveness of the Court.

Or, what is the most obvious thing, and you get privately–opposite advice from different members of the press on this one. [Voices perspective of a SCOTUS justice] “It won’t affect us! I mean, we’re grown up, we hope. And there’s the press there anyway, And why will it affect what questions I ask? I have to watch what I say anyway!” Well, apparently, I don’t. But nonetheless, you have to watch it, it’s public and the press is there, so why would this make a difference? To which some members of the press will say, you just wait ’til you see how you react when you ask a question in good faith on A, and then it’s reported on various shows on television and they show a picture of you. You’ll be pretty careful, and maybe you’ll be careful to stop asking. That might be a public benefit, but nonetheless, you see the point. And you say, go see what happens in the Senate or the House, which perhaps has to respond to public opinion.

But the reason you have a court–the reason we decide constitutional questions–if you go back to Alexander Hamilton, is–why? Because this document [takes out pocket copy of Constitution]… it treats exactly the same way the least popular and the most popular person in the United States. That’s what it’s supposed to be. And by the way, he said, we better give the Court the power to review laws–why? Because if we give the President the power to say whatever he does is constitutional or not, he’ll always say it’s constitutional, and he has enough power already.

Why not give the power to Congress?  After all, they’re elected, and many countries have done that. To which Alexander Hamilton says–he doesn’t say it in these words–he says, what happens when the decision is right but unpopular? He says, I’ll tell you about Congress–they are experts in popularity. He says, believe me, they know popularity. But what will they do when it’s unpopular? So let’s take these judges nobody’s ever heard of–they don’t have the power of the purse, they don’t have the power of the sword–fabulous. They’re weak. And give them the authority. And when it’s unpopular–unpopular and important, and by the way, possibly wrong–I mean, I’ve participated on both sides of 5-4 decisions. Not as many as you think–there may be 20% [of decisions that] are 5-4, 50% are unanimous–but somebody’s wrong in these cases. Alright, so–and that is the question I get from the President of the Supreme Court of Ghana, a woman who is trying to further democracy and civil, human rights in Ghana, and from Ouagadougou [in Burkina Faso], and from countries all over–why do people do what you say?

That’s a pretty good question. And it’s taken us–I say, there’s no answer in this document [the Constitution], and Hamilton didn’t answer it, either. He didn’t know. Nobody knew. It’s two hundred years of history. You want people in your country to follow courts and the rule of law–go out to the villages. Don’t just talk to the lawyers. Don’t just talk to the judges. By the way, there are in our country–contrary to popular belief–309 of the 310 million are not lawyers. Alright? And I say, they’re the ones that had to support sending the troops to Little Rock to enforce integration. They’re the ones that have to decide they will follow decisions that they think are really wrong and really unpopular. And that takes time. But that’s part of our job. And who knows? So I say we’re conservative with a small “c.”

And the radio? I mean, the radio–[unintelligible] they tried that in the D.C. Circuit [which has since September 2013 provided same-day audio for its oral arguments], didn’t hurt anything. Could we experiment with that? Maybe. But that’s not right in front of us. So therefore, that’s [my] not answering [the question].

—–

As mentioned in the beginning of this post, most of Justice Breyer’s answer, which focuses on insulating the Court from the misconceptions of the public, retreads his previous statements about cameras in the courtroom. In March 2013, in response to questioning from a House Appropriations subcommittee, Breyer mentioned the Court’s conservatism with a small “c” on the issue, the potential distortion by the press, and the self-censoring effects televised arguments could have on the justices’ questioning. He said then: “I’m not ready yet. I mean, I want to see a little bit more of how all this works in practice. I’d give people the power to experiment. I’d try to get studies–not paid for by the press–of how this is working in California, of how it affects public attitudes about the law. I’d like some real objective studies–I know that’s a bore, but that’s where I am at the moment.”

In January 2014, Justice Breyer told an audience at The Washington Center for Internships and Academic Seminars that he suspects it is a matter of when, not if, oral arguments are televised, but worried about the “demonizing and angelizing” of certain members of the Court.

What made yesterday’s answer different (and encouraging for advocates of live streaming) was his begrudging acknowledgment at the end that the D.C. Circuit has adapted its procedures to make oral arguments more accessible to the public, with no harm done to the integrity or the perception of the court. I would not go so far as to call it Breyer’s endorsement of live audio–as Michelle Olsen pointed out, the D.C. Circuit still doesn’t have live audio, only same-day audio, and it’s unclear which of these two practices Justice Breyer’s musings on “experiments” referred to. Given that the Supreme Court currently releases its argument recordings just once a week on Fridays, though, even moving toward same-day audio at One First Street would be a small step in the right direction.

Justice Scalia Will Have a Field Day Tomorrow with Massachusetts “Buffer Zone” Case

Justice Antonin Scalia, ready to pounce.
Justice Antonin Scalia, ready to pounce. Picture via Wikimedia Commons.

McCullen v. Coakley has received a good deal of attention in the press already because of its contentious subject matter: anti-abortion activists are challenging a 2007 Massachusetts statute that created 35-feet “buffer zones” around the entrances, exits and driveways of all reproductive health care facilities in the state, arguing that the law infringes upon their First Amendment rights to share their views in a public forum. Due to personnel changes, there is a very good chance that the Supreme Court will end up overturning its own thirteen-year-old precedent in order to invalidate the Massachusetts law. But just in case you needed another reason to follow the oral arguments for McCullen v. Coakley tomorrow, here’s one more: even though the case has zero bearing on the constitutionality of abortion, Justice Scalia is going to give us some choice quotes railing against Roe v. Wade and the Court’s abortion jurisprudence.

Why do I think this? Just look at Justice Scalia’s dissent in Hill v. Colorado, the 2000 case that the anti-abortion activists in Massachusetts are asking the Supreme Court to overrule. In Hill, six justices (Chief Justice William Rehnquist and Justices Stevens, O’Connor, Breyer, Souter and Ginsburg) voted to uphold a Colorado law that was similar but arguably posed even less of a First Amendment problem than the Massachusetts law now in question: Colorado’s statute created a buffer zone of only eight feet, and it applied to all health care facilities. Writing for the majority, Justice John Paul Stevens balanced anti-abortion protestors’ right to free speech against the “recognizable” privacy interests of the “unwilling listener” and came out in favor of the latter. Stevens reached back into a 1928 Court opinion by Justice Brandeis for “the right to be let alone” from unwelcome speech and ran with it, concluding that Colorado’s interests in protecting patients and staff members from impeded access to the facilities and the content-neutral way in which the law was written satisfied the First Amendment.

Justice Scalia was livid. His dissent, which Justice Thomas joined (but not Justice Kennedy, who wrote his own separate dissent, for reasons that are obvious once you read the two), is vintage Scalia in its mix of anger, indignation and sarcasm. In my view, he quite effectively calls out Justice Stevens’ shaky reasoning regarding the unwilling audience, pointing out that what Justice Brandeis actually meant was the “right to be let alone” by the government, not the right to be free from hearing other private speakers communicating their message in a public setting. Being Scalia, however, he doesn’t stop there. The First Amendment is not the only thing at stake. Justice Scalia wants you to know that the Hill decision is just one in a long line of animus-driven, unconstitutional attacks on the rights of the unborn and those who would save them, so he takes the opportunity to excoriate the Court’s “relentlessly pro-abortion jurisprudence:”

What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice [citation omitted]. Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.

The emphasis is mine.

The public forum involved here–the public spaces outside of health care facilities–has become, by necessity and by virtue of this Court’s decisions, a forum of last resort for those who oppose abortion. The possibility of limiting abortion by legislative means–even abortion of a live-and-kicking child that is almost entirely out of the womb–has been rendered impossible by our decisions from Roe v. Wade… For those who share an abiding moral or religious conviction (or, for that matter, simply a biological appreciation) that abortion is the taking of a human life, there is no option but to persuade women, one by one, not to make that choice. And as a general matter, the most effective place, if not the only place, where that persuasion can occur, is outside the entrances to abortion facilities.

And in the final paragraph:

Does the deck seem stacked? You bet. As I have suggested throughout this opinion, today’s decision is not an isolated distortion of our traditional constitutional principles, but is one of many aggressively proabortion novelties announced by the Court in recent years.

Look for more of these quotable “suggestions” from Justice Scalia tomorrow, the incidence of which is only made more likely by the fact that this time around, with Chief Justice Roberts and Justice Alito on the bench, he will likely have enough votes to jettison Hill once and for all. Justice Kennedy may well end up writing a final opinion in McCullen that is based on his own Hill dissent–a much more temperate disagreement that skipped the “proabortion” talk and stayed focused on the First Amendment–but Scalia will doubtless take this opportunity to run a victory lap.

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[UPDATED] With Utah Stay Application Filed, Ball is Now in the Supremes’ Court [Infographic]

Justice Sonia Sotomayor of the Supreme Court is set to decide whether same-sex marriages in Utah, which have been conducted since a federal trial judge overturned on December 20 a state ban on such marriages, can continue while the case is being appealed, or whether they must cease for the time being.

After both Judge Robert Shelby and the Tenth Circuit Court of Appeals denied its application for an emergency stay, Utah took its request up to the Circuit Justice assigned to the Tenth Circuit, Justice Sonia Sotomayor, on December 31. Justice Sotomayor asked the plaintiffs to submit its response opposing the stay by noon, January 3. Their brief can be found here (courtesy of the Legal Times).

From here, Justice Sotomayor can choose to decide the stay herself, or she can refer the issue to the full Supreme Court. I’ve created a flowchart (click to enlarge) to help explain how a non-capital stay1 moves through the federal courts. The magenta box on the left lists out what a party must show in order to obtain a stay.

(This flowchart was created using information from Supreme Court Rule 22 on “Applications to Individual Justices” and the Supreme Court Public Information Office’s “Reporter’s Guide to Applications.” The latter includes a chart showing which Justices are assigned to which Circuits.) 

In terms of where in the process we are right now, Utah’s stay application is at the teal box labeled “Circuit Justice (Justice Sotomayor).”

There has been a lot of speculation in the last few days over whether Justice Sotomayor will keep the stay application for herself or bring in the rest of her colleagues, with many predicting that she will refer it to the full Court. As the chart shows, that seems to be the quickest, most efficient way to dispose of the application–once the full Court has voted on the stay, its decision is final.

Individual Circuit Justice rulings, meanwhile, are theoretically subject to “appeal.” If the Circuit Justice denies the stay, the party petitioning for a stay can resubmit the request to another individual Justice of its choosing (Supreme Court Rule 22.4, however, points out that this tactic is “not favored,” and the Justice to whom the request is resubmitted will usually then refer it to the full court, out of deference to the Circuit Justice and to defuse attempts at “justice shopping”). If the Circuit Justice individually grants the application, the party opposing the stay can then ask the full court to vacate the stay. Now, in practice, the Circuit Justices are accorded a great deal of deference in their individual decisions–Sotomayor, after all, did just individually grant a stay on a separate case two days ago–but the possibility that their rulings might end up being reviewed by the full Court anyway may incentivize them to “share.”

UPDATE: The Supreme Court granted Utah’s request for a stay this morning, halting same-sex marriages in the state until the Tenth Circuit has decided the case on appeal. The one-paragraph order, which can be found here, shows that Justice Sotomayor did in fact refer the stay request to the full court. The Supreme Court did not touch the merits of the case in its grant of the stay, providing no explanation of its decision or analysis of the two parties’ arguments. As Utah’s Fox 13 News reporter Ben Winslow notes, over 900 same-sex marriages have been conducted in the state since Judge Shelby’s initial ruling on December 20. Winslow reports that the Tenth Circuit expects to hear oral argument in the case this March.

  1. As opposed to capital stays, where a convicted individual has received the death penalty–these play out differently because of the nature of such cases []

Waiting for #SCOTUS: Tweets from the Peanut Gallery

As the Supreme Court inches toward the end of its term in late June with fourteen cases still undecided, court-watchers are now surging toward Twitter and SCOTUSblog every Monday and Thursday morning at 10 a.m. EST in anticipation of history-making rulings on same-sex marriage, voting rights, and affirmative action in higher education. No one outside of the Court knows what and how many opinions are issued on any given day–and we did not in fact get any of the aforementioned “marquee” decisions today, which only adds to the tension for Thursday–but waiting is half the fun, right?

Here’s a roundup of today’s action in tweet form, showing our collective breath being held, held, held and then released over the span of 30 long minutes (thus freeing everyone up with time to spare for the Edward Snowden Q&A). In all, #SCOTUS handed down five opinions today, including a couple of important criminal procedure decisions and an Arizona voter registration ruling that saw Chief Justice Roberts and Justice Scalia siding with the liberal wing of the Court against the state’s proof-of-citizenship requirement. It also agreed to hear oral argument in four more cases for its next term. We begin with the one and only SCOTUSblog, the definitive source for everything Court-related:

https://twitter.com/ben_mccall/status/346628902707417089

https://twitter.com/khjEsq/status/346705366123438081

https://twitter.com/julierheinstrom/status/346632980514631680

“Too Far, Too Fast:” A Timeline of Ruth Bader Ginsburg’s Disappointment with Roe v. Wade

Judging. Picture via AP.

Justice Ruth Bader Ginsburg made headlines this past weekend when she criticized the legal basis of Roe v. Wade at an event marking its 40th anniversary, saying that the 1973 decision had gone too far and “given opponents of access to abortion a target to aim at relentlessly.”

Ginsburg, who was at the time of the decision head of the ACLU’s Women’s Rights Project, told the packed audience at the University of Chicago Law School that the Supreme Court should have stuck to a narrower ruling striking down the Texas statute challenged in Roe. (That law had banned abortion in all cases except for those that would save the woman’s life.) Instead, however, the Court issued a sweeping pronouncement on the right to privacy encompassing a woman’s choice to end her pregnancy–a decision which, Ginsburg said, stopped the momentum of grassroots pro-choice groups and galvanized the anti-abortion movement.  Ginsburg also characterized Roe as not being “woman-centered” enough, as the opinion focused mainly on “a doctor’s freedom to practice his profession as he thinks best” rather than “a question of a woman’s choice.”

Though Justice Ginsburg’s remarks may be particularly relevant now–her preferred bottom-up, state-by-state approach to abortion mirrors the strategy that same-sex marriage advocates have been using–this isn’t the first time that the justice has publicly expressed disappointment with Roe’s lack of judicial restraint. Over the years, Ginsburg has been quite vocal about the many roads not taken, even while she approves of the outcome of increased access to abortion. The following is a timeline of Ginsburg’s comments from 1985 to present (you can zoom in and click on each box for more detail):

 

 

If I’ve missed any other quotes from Justice Ginsburg during this period, please let me know in the comments.

The Supreme Court decision will (not) be televised

Courtesy of TheAtlantic.com.
…Even though the world might be a better place with Sotomayor reaction GIFs. Picture via TheAtlantic.com.

I’m of two minds about Al Tompkins’ Poynter piece (excerpted below) advocating cameras in the Supreme Court, which Andrew Sullivan highlighted on The Dish yesterday:

This is at the heart of what courts do every day in America; they hear the people’s business. It’s not entertainment, like Judge Judy. It is a living civics lesson, and exactly what the public should be able to see.

Live coverage would give the people unfettered access to the words the justices say, and would make it harder for journalists to add their own spin. Live coverage would also help us visualize what’s going on much more than words can.

My thoughts can be divided into roughly two camps: (1) SCOTUS’ Problem with Embracing Technology (or, Why I Think We Will See Live Video of Arguments In the Future), and (2) SCOTUS’ Problem with Protecting Court Integrity (Why Cameras are Both Good and Bad). Continue reading The Supreme Court decision will (not) be televised

Almost There: Supreme Court to Decide Whether to Hear DOMA, Prop 8 Cases

Karen Golinski, a federal employee in California, and her wife Amy Cunninghis.  Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)

Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.

Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.

The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”

Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)

Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.

The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage.  That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.

* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.