Editor's Note :

Editor's Note :

On Tuesday the Court will hear oral argument in Obergefell v. Hodges, which is consolidated with three other cases, on the questions of whether the Fourteenth Amendment requires that states grant and/or recognize same-sex marriages. We will be live-blogging updates from the oral argument at this link beginning at 10:45 a.m.
We expect one or more opinions in argued cases at 10 a.m. on Wednesday. We will be live-blogging here.

Petition of the day

By on Apr 27, 2015 at 10:26 pm

The petition of the day is:


Issue: Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia's invalidated effort to do the same.


Photos from the plaza

By on Apr 27, 2015 at 9:59 pm

Attachment-1 Attachment-1

Posted in Everything Else

Two years ago, the Supreme Court issued its decision in United States v. Windsor.  By a vote of five to four, with Justice Anthony Kennedy joining the Court’s four more liberal Justices to form a majority, the Court struck down a provision of the federal Defense of Marriage Act that defined marriage, for purposes of over a thousand federal laws and programs, as a union between a man and a woman.  In Windsor, the Court made clear that it was not deciding whether states can prohibit same-sex marriages. But – as I explained in the first part of my preview of tomorrow’s oral arguments in the same-sex marriage cases – lower courts around the country quickly began to rely on the decision in Windsor to strike down state bans on same-sex marriage, and the plaintiffs have done the same in their efforts to convince the Supreme Court to rule in their favor.

So it may come as a bit of a surprise that the Court’s ruling in Windsor also plays a starring role in the arguments made by Tennessee, Michigan, Ohio, and Kentucky to defend their bans on same-sex marriage.  The heart of the Court’s decision in Windsor, the states emphasize, was that the states have traditionally defined and regulated marriage.  And just as the Court in Windsor determined that the Defense of Marriage Act must fall because it stood in the way of a decision by New Yorkers that same-sex couples should be treated the same as their opposite-sex counterparts, a decision by the Supreme Court for the plaintiffs would overturn a decision by the residents of these four states that marriage should be reserved for opposite-sex couples.  Because each state is its own independent entity, they insist, they don’t have to allow same-sex marriages or recognize same-sex marriages that take place outside their state just because some other states have opted to do so.  Continue reading »

April DeBoer and Jayne Rowse have lived together for ten years, own a home together, and have three children.  Laws in Michigan, where they live, prevented them from jointly adopting their children, so DeBoer adopted one child on her own, while Rowse adopted the other two.  This also means that Rowse can’t cover DeBoer’s child on her health insurance, and vice-versa.  And if one of them were to die, the other would not automatically get custody of her children.  So the two women want to get married – but they can’t, because Michigan laws specifically prohibit them from doing so.

In 2013, James Obergefell married Jim Arthur, his partner of more than twenty years, on a tarmac at an airport in Maryland, which permits same-sex marriage, where they had flown in a medically equipped plane because Arthur was battling ALS.  After Arthur died a few months later, Obergefell filed a lawsuit, seeking to be recognized as Arthur’s spouse by the state of Ohio, where the pair lived and he still lives – so that, for example, his name will appear on Arthur’s death certificate as his spouse.  Continue reading »

Today, the Court heard argument in Kingsley v. Hendrickson, a case about excessive force claims raised by pre-trial detainees. The basic question is whether a subjective or objective standard should govern these claims, but the Court spent a significant amount of the argument just trying to identify the practical ramifications of this choice. At times, it seemed that the Court was trying to choose between clarifying the fundamental principles in this area and simply dispensing with the case at hand on narrow doctrinal grounds. At the end of the argument, the result seemed uncertain.

Wendy M. Ward for petitioner (Art Lien)

Wendy M. Ward for petitioner (Art Lien)

Continue reading »

Today’s transcript

By on Apr 27, 2015 at 1:20 pm

The transcript in Kingsley v. Hendrickson is here

Posted in Merits Cases

For the better part of twenty years, the jurisdiction of the federal courts of appeals to review different decisions by the Board of Immigration Appeals (BIA) has been something of a minefield. That morass returns to the Court on Wednesday in Mata v. Lynch, the final oral argument of the current Term. But whereas the question presented in this case – whether courts of appeals have jurisdiction to review the BIA’s denial of an immigrant’s motion to reopen his removal proceedings based upon a claim that his original counsel was ineffective – may sound difficult, not even the federal government is defending the Fifth Circuit precedent at issue (which answered that question in the negative and thereby created a ten-to-one circuit split). Thus, the last hour of argument before the Justices until October may be entirely anticlimactic – and not just because of the contrast with the other cases the Court is set to hear this week. Continue reading »


The Supreme Court, moving into a basic separation-of-powers constitutional arena, agreed on Monday to spell out Congress’s authority to give someone a right to sue in federal court — even if that individual cannot show that a specific harm was done.  That is an issue under Article III of the Constitution and arose in the case of Spokeo Inc. v. Robins, which will be heard and decided in the Court’s next Term.

That was one of two new cases that the Justices accepted for review.  The other will clarify the time limits for a federal government employee to file a workplace grievance claiming an illegal “constructive discharge” from the job — that is, the employee was forced to resign because of harmful conditions at work (Green v. Donahoe).   The Court also sent another case on the enforcement of the federal Affordable Care Act’s birth-control mandate for religious non-profit colleges, hospitals, and charities seeking an exemption based on faith back to a lower court for a further look .

Continue reading »


Monday round-up

By on Apr 27, 2015 at 6:42 am

Tomorrow’s arguments in the challenges to state bans on same-sex marriage dominate coverage of and commentary on the Court.  At this blog, Lyle Denniston outlined the “decisive questions” to watch tomorrow, with other coverage coming from NPR’s Nina Totenberg, who looks at same-sex marriage in the Justices’ own words, Chris Geidner of BuzzFeed, Marcia Coyle and Tony Mauro of The National Law Journal (subscription required), Jess Bravin of The Wall Street Journal,

In a podcast for NPR, Totenberg, Mara Liasson, and SCOTUSblog’s Tom Goldstein discuss “the legal questions before the Court and seismic shift in the culture and politics on this issue.”  And in The New York Times, Sheryl Gay Stolberg reports on how the case of Jim Obergefell, one of the plaintiffs in the Ohio challenge, “has become the measure of something else entirely: how far the gay rights movement has come in one of the most traditionally conservative corners of the Midwest.”  Continue reading »

Posted in Round-up


Twenty-two months ago, the Supreme Court — perhaps not fully realizing that it was doing so — set off a constitutional revolution.  In a decision that spoke somewhat tentatively about an “evolving understanding of the meaning of equality,” the Court in United States v. Windsor saw in that understanding a deep even if new respect in America for the dignity of same-sex couples who choose to marry.

What followed from that, with astonishing speed, was that the list of states where such marriages became legal expanded from twelve to thirty-six.   Lower federal courts, in particular, led the way.  On Tuesday, at a two-and-a-half-hour hearing, the Supreme Court confronts a simple question: did those courts go astray, and misread what Windsor really meant?

A cabinet shelf full of about one hundred and fifty briefs introduced the Justices to that question from many angles.  But the actual outcome of the case known as Obergefell v. Hodges could well depend upon how the Court answers three core onstitutional issues.  Each by itself, in fact, could be decisive: Who decides?  What right is at issue? What is the constitutional test?

Continue reading »

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