Yesterday’s coverage of the Court abounded with reports and commentary relating to the same-sex marriage cases – one of which was argued yesterday, with oral arguments in the second coming today.  Additional press coverage focused on a Fourth Amendment opinion the Court released yesterday, the death of Supreme Court reporter Anthony Lewis, and recently released polls tracking the public’s opinion of the Court.

Yesterday, the Court heard oral argument in Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage in that state.  Sarah gathered most of yesterday’s extensive coverage of the argument in her evening round-up, which includes Lyle Denniston’s argument recap.  Also at this blog, Kali Borkoski has a menu of yesterday’s Perry coverage which includes two posts by Tom (here and here), Amy’s analysis “In Plain English,” and a link to the transcript and audio segment of the argument.  Additional coverage of yesterday’s arguments comes from Nina Totenberg at NPR, Joan Biskupic of Reuters (via Yahoo! News), David G. Savage and Noam N. Levey of the Los Angeles Times, Mike Sacks and Ryan J. Reilly of the Huffington Post, Richard Wolf and Kevin Johnson of USA Today, Tom Curry of NBC News, Tony Mauro and David Brown and Marcia Coyle, all of the Blog of the Legal Times, Jeremy Leaming of ACSblog, Ruthann Robson of Constitutional Law Prof Blog, and Sahil Kapur of Talking Points Memo.

Some commentary focused on and analyzed specific moments during the Perry argument.  At the Volokh Conspiracy, Orin Kerr highlights a particular exchange between Justice Scalia and Ted Olson, the attorney for the Proposition 8 challengers, in which the Justice asked when it “bec[a]me unconstitutional to exclude homosexual couples from marriage?”  At the Constitutional Accountability Center, Elizabeth B. Wydra supplies an answer: “laws banning same-sex couples from marrying were unconstitutional the moment when the American people . . . wrote the guarantee of equality for all persons into the Constitution.”  At Balkinization, Jack Balkin proffers a more recent date: “according to [Justice Scalia’s] dissent in Lawrence v. Texas, the Court decided that issue in 2003.”  Elsewhere at the Volokh Conspiracy, Ilya Somin examines a question posed by Justice Kennedy about whether Proposition 8 “can be treated as a gender-based classification”; Somin explains that “once you consider how laws such as Proposition 8 actually work, it’s hard to avoid the conclusion that they clearly do discriminate on the basis of gender, both as a matter of logic, and under the Supreme Court precedent defining sex discrimination.”  Peter Landers at the Wall Street Journal’s Law Blog (subscription required) notes that “[o]ne of the odder moments in [the argument] came when the [J]ustices started talking about the fertility of older people and Justice Antonin Scalia attempted to make a joke about former Sen. Strom Thurmond, who had four children in his late 60s and 70s.”

Other commentators focused on the arguments more generally.  At Balkinization, Jason Mazzone observes that the oral arguments “[were] all about constitutional structure,” while Margaret Talbot of The New Yorker reports that “nearly all of the [J]ustices were interested in the standing issue.”  At the Volokh Conspiracy, Orin Kerr looks at the questions asked by Justice Kennedy at oral argument and suggests that, for the Justice, “it may be best for the Court to exercise the passive virtues and wait for ‘the political institutions to make their decision before the Court is required to pass judgment on its validity.’”  Still other commentators sought to synthesize the Perry commentary itself: at Concurring Opinions, Gerard Magliocca notes that “[b]ased on the comments coming out of this morning’s oral argument in Perry, it appears there are only two possible outcomes: 1) Petitioners have no standing . . .  2) [t]he writ of certiorari is dismissed as improvidently granted.”

Several Court watchers provided analysis of both Perry and United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act (DOMA).  Richard Epstein, in blog posts for both Defining Ideas and Ricochet, examines the libertarian arguments for and against gay marriage, noting in the former post that if Justice Kennedy “wants to maintain his own definition of liberty consistently, [he] has to go the whole nine yards and come down in favor of gay marriage.”

Finally, other coverage focused on the scenes outside the Supreme Court building yesterday.  In the Los Angeles Times, Brian Bennett describes the spectacle in front of the Court as one of singing, cheering, and protesting.  Additional coverage comes from Jeremy W. Peters of The New York Times, Carol Morello of The Washington Post, Andrew Ramonas of the Blog of the Legal Times, and Brett Neely of Minnesota Public Radio.

[Disclosures: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in Windsor.  Tejinder Singh, also of Goldstein & Russell, P.C., was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Perry.]

Adding to what was already a busy day for Court watchers (and round-up writers), yesterday also saw the Court issue its opinion in Florida v. Jardines, the second dog sniff case argued before the Court this Term.  (Florida v. Harris was decided last month.)  In a five-to-four decision, the Court held that a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment.  Kevin Russell provides initial coverage of the case for this blog, while Greg Stohr and Bob Drummond cover the case for Bloomberg; elsewhere coverage comes from Randy Lilleston of NPR, Adam Liptak of The New York Times, Jonathan Stempel at Reuters, Warren Richey of the Christian Science Monitor, the Associated Press (via The Washington Post), Emily Bazelon at Slate, Jonathan H. Adler of the Volokh Conspiracy, Daniel Fisher of Forbes, David Ovalle of the Miami Herald, Kent Scheidegger of Crime and Consequences, Natasha Lennard for Salon, David Kravets at Wired, Evan Bleier at Opposing Views, and Michael Kelley at Business Insider.

At Cato@Liberty, Jim Harper contends that the “case shows some of the same fissure around Fourth Amendment doctrine that [United States] v. Jones did last year,” while at Concurring Opinions Ryan Calo lists several reasons why the case “still has [him] puzzled/worried.”  At the Volokh Conspiracy, Orin Kerr examines how the Jardines decision interpreted Jones, noting that “Jardines is the first Supreme Court application of the Jones test after Jones itself.”

The Court’s announcement on Monday that it would review Schuette v. Coalition to Defend Affirmative Action, which Lyle covered for this blog on Monday and Sarah covered in yesterday’s round-up, continues to generate press from, among others, Ariana Assaf and Peter Shahin of the Michigan Daily and Kellie Woodhouse at

Meanwhile Anthony Lewis, the former Supreme Court correspondent for The New York Times who died earlier this week, continues to garner remembrances.  Emily Bazelon at Slate, Hendrick Hertzberg at the New Yorker, and David Folkenflik of NPR all eulogize Lewis’s abilities as a writer, reporter, and legal thinker.

Finally, yesterday’s Court coverage also included several stories on the public’s perception of the Court.  In The Washington Post, Aaron Blake examines competing graphs that attempt to chart the Justices’ ideological leanings, while CNN, Jennifer Rubin of The Washington Post, and Jacob Gershman of the Wall Street Journal (subscription required) all report on a recent Pew Research Survey indicating that the Court’s national favorability rating “remain[s] near an all-time low.”  And at the Huffington Post, Sabrina Siddiqui notes that a Pew Research Center poll indicates that “[a]lmost half of conservative Republicans believe the United States Supreme Court is liberal under its current conservative majority”; Jillian Rayfield at Salon and Alex Groberman of Opposing Views also report on the Republican poll.


  • John Elwood reviews Monday’s relisted cases at this blog’s Relist watch, which he describes as “the only Supreme Court blog post you will read this week that will say nary a word about [the gay marriage cases.]”


Posted in Round-up

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Mar. 27, 2013, 9:41 AM),