10th Year of the Roberts Court

By:  Timothy P. Flynn

Although they met for their first conference last Monday, the nine U.S. Supreme Court Justices convene today for the first oral argument of this term.  It could prove to be a very important term.

Last week, the Justices selected 11 more cases for briefing and argument during this term to add to their already crowded docket.  Notably absent so far on the docket is an order granting certiorari in any of the many pending same-sex marriage cases.

These days, it seems every other big-city lawyer has his or her mits on a pet same-sex marriage case they want SCOTUS to consider as the High Court draws ever closer to selecting the perfect such case.  These lawyers, it seems, are confident of a "same-sex" victory and thus, they anticipate the raw professional glory that comes from being on the winning side of a landmark case.

SCOTUS has many from which to choose, as cases are now pending from Oklahoma, Virginia, Utah, Wisconsin, and California, with plenty more in the federal pipeline.  Legal scholars believe the High Court will take up either the California or the Utah case.

The case from California features two heavy-hitting lawyers: Ted Olson and David Boies of Bush v Gore 2000 fame; they have joined forces for this epic civil rights struggle.  The Law Blogger has covered their case since its inception in 2009.  Also unique to the California case is that it is a class action law suit.

Utah was the first state to have their state law ban on same-sex marriage struck down by a federal court.  Now three other federal courts have similarly ruled.  One of the attractive features of the Utah case, in addition to being the first considered at the federal level, is that it is simple; involving a single gay couple.

Keep in mind folks, it is also possible that the SCOTUS will take a pass on the same-sex case menu this year due to a lack of conflict among the federal circuits.  It is in the High Court's nature to move slowly, deliberately waiting for exactly the right case, at exactly the right time.  We here at the Law Blogger sure do think that the time is now.

Meanwhile, the SCOTUS has other matters to decide.  Today, the Court hears whether the 4th Amendment protects a driver who had the tell-tale "broken tail light" which precipitated a cop stop and a search which yielded cocaine.

Tomorrow, the Court considers whether a lifer in an Arkansas prison has the right to grow a beard in accord with his new found Muslim faith; beards contravene the prison rules.  The inmate looks to a piece of relatively recent federal legislation that mandates prisons to allow inmates to freely practice their chosen religion.

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We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

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