Breaking News

Author: Marty Lederman

By on Jan 18, 2013 at 11:29 pm
On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act).  The first briefs in the cases will be filed on January 22.  In advance of those filings, the blog is publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases.  This is the third post in that series.   In my previous post, I explained that the case for the Court’s Article III jurisdiction to adjudicate United States v. Windsor appears to follow from the historical precedents of United States v. Lovett and INS v. Chadha, and from the Court’s justiciability holdings in Chadha itself.  The challenge for the appointed amicus, Professor Jackson, then, will be to explain how and why the Court should distinguish or decline to follow the precedents of Lovett and Chadha. I can imagine several different theories in support of the view that there is no “case or controversy” here.  (This is not to say that Professor Jackson will invoke all of these arguments -- I doubt she will -- or that she won’t come up with something different altogether.  But these are the arguments that have emerged in my conversations with colleagues.)  Roughly in order of least to most plausible:

By on Jan 18, 2013 at 10:22 am
On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act).  The first briefs in the cases will be filed on January 22.  In advance of those filings, the blog is publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases.  This is the second post in that series. Pending before the Supreme Court are many petitions in cases challenging the constitutionality of Section 3 of the Defense of Marriage Act. The Court has granted certiorari in only one of those cases, United States v. Windsor -- and in Windsor itself the Court has granted only one of the three petitions, that filed by the United States, No. 12-307. (It is holding the petition filed by Ms. Windsor, the prevailing party below, No. 12-63. And it has not yet conferenced -- and might have any occasion to conference -- the petition recently filed by the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), No. 12-785.) In addition to the merits question raised in the petition, the Court has asked the parties also to brief and argue two Article III questions:
First, “[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.” Second, “whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case.”
The Court has appointed Professor Vicki Jackson (my former colleague at DOJ and at Georgetown -- and one of the very finest federal courts scholars) as an amicus curiae to argue that the answers to those two questions are “yes” and “no,” respectively.  Professor Jackson's opening brief is due next Thursday, January 24. In this post, I’ll explain how and why the jurisdictional questions in Windsor arise.  And, on the first question added by the Court, I'll describe briefly the argument that the Court is not deprived of jurisdiction by virtue of the Executive Branch’s agreement with the court below that DOMA Section 3 is unconstitutional.  In my next post I’ll speculate about possible arguments that the Court lacks jurisdiction, before moving on to the second added question, about BLAG's standing, in the post after that.

By on Jan 17, 2013 at 11:05 am
On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act).  The first briefs in the cases will be filed on January 22.  In advance of those filings, the blog will be publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases.  This is the first post in that series.    Framing the Article III Questions As Lyle has explained, when it granted certiorari last month in the Defense of Marriage Act (DOMA) and Proposition 8 cases, the Court conspicuously chose to add Article III questions to be briefed and considered in each case, in addition to the merits questions posed by the petitioners. In the Proposition 8 case, Hollingsworth v. Perry, No. 12-144 -- involving whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from retracting state constitutional law that had allowed same-sex couples to marry -- the Court has asked the parties to brief and argue “[w]hether petitioners have standing under Article III, § 2 of the Constitution in this case.”  The petitioners in question, notably, are not the state officials who were the defendants in the lower court and are subject to the district court’s injunction; instead, they are some of the private, official sponsors of Proposition 8.  The district court ruled that they had a right to intervene as parties to defend the suit; and the court of appeals later held that they had standing to appeal the district court’s judgment, even though the state officials who were the original defendants did not do so. In the case challenging the constitutionality of Section 3 of DOMA under the Due Process Clause of the Fifth Amendment, United States v. Windsor (12-307), the Court has asked the parties to brief and argue two Article III questions:  “[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of  jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case.”  Just as the district court in Perry granted the sponsors of the Proposition 8 initiative a right to intervene, so, too, the district court in Windsor granted BLAG’s motion to intervene to defend the constitutionality of Section 3 of DOMA.  The cert. petition the Court has agreed to hear in Windsor, however, was filed by the United States, not BLAG.  BLAG subsequently filed its own petition in the case, No. 12-785, which the Court has yet to consider. 

By on Oct 11, 2011 at 6:02 am
The oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. Perich last Wednesday raised a host of difficult and important questions -- and a few misconceptions.  I hope to be able to post a few reflections on the argument here in the next few days, as a prelude to an upcoming “Community” discussion about the case here at SCOTUSblog.  [DISCLOSURE:  Goldstein & Russell filed an amicus brief in the case in support of respondent Cheryl Perich.  Some of the attorneys in that firm work in various capacities on this blog, but I do not represent any client in the case and I did not work on the case while I was at the Department of Justice -- indeed, the Court granted cert. after I left DOJ.] As many SCOTUSblog readers know, Hosanna-Tabor raises an important constitutional question that has been brewing in the courts of appeals for over four decades but that the Supreme Court itself is only now confronting for the first time.  In future posts I’ll discuss some of the difficulties associated with that constitutional question.  But first . . .

By on Oct 5, 2011 at 8:51 pm
In today’s argument in Golan v. Holder, many of the Justices appeared sympathetic to Congress’s power to create a U.S. copyright in a work that had previously been in the private domain within the United States, at least in cases where, for various reasons, the work had never previously had a U.S. copyright.  They appeared less sanguine, however, about the implications of the government’s argument with respect to a different set of works that (for the most part) are not directly at issue in Golan—namely, works that had previously been copyrighted in the U.S. and had thereafter entered the public domain and been subject to widespread public copying or performance.   The Chief Justice, in particular, thought that such a case would at the very least raise substantial First Amendment concerns, wholly apart from whether the government might prevail under the applicable First Amendment test.  After all, he wondered, isn’t it at least somewhat troubling for Congress to prohibit members of the public from expressing something tomorrow that they were free to express yesterday?

By on Jun 6, 2011 at 5:30 pm

The Senate just voted 72-16 to provide its consent to the appointment of Don Verrilli to be the (I think) 46th confirmed Solicitor General of the United States.  I had the great good fortune of working with Don over much of the past two years; he's...

By on May 23, 2011 at 11:34 am

Looking at opinion assignments to determine which Justices might be writing in Brown v. EMA, Flores-Villar, Chamber of Commerce v. Whiting, and Janus Capital. ...

By on Sep 23, 2008 at 7:23 am

A slight amplification on Lyle's thorough post below: Lyle writes that "[i]f Judge Hogan’s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene – challenges to transfers, to transfers without first notifying detainees’ lawyers, to a lack of...