Gavel Grab

Hundreds of people from across the country gathered at the Supreme Court this week as the justices heard oral arguments Tuesday and Wednesday on the constitutionality of same-sex marriage. No more than a small handful of them were able to gain tickets to listen to the arguments.

The justices had an opportunity this week to educate the public on the inner workings of the court, and stream video of the arguments live. Instead, the justices remained “camera-shy,” releasing only an audio version of the arguments, says a Des Moines Register editorial.

Oral arguments are the only chance for Americans to get a glimpse into the court’s operations, but those are still restricted to the few people who manage to get a seat inside. The justices should take heed of the Iowa Supreme Court’s practice of live streaming oral arguments online, the editorial argues.

In 2008 when the Iowa Supreme Court heard the Varnum v. Brien case on same-sex marriage, the court allowed for extra public seating during arguments and distributed the video online. The U.S. Supreme Court should embrace this transparency, it states. Read more

“Doomsday” for DOMA? Supreme clout for Justice Anthony Kennedy? These were just a few common themes arising from a tsunami of media and blogosphere coverage after two days of marriage case oral arguments at the Supreme Court.

It’s hard to imagine that any tea leaf remains unread, or any justice’s remark during the oral arguments uncovered. Eager readers can now fill hours and hours learning about the court, the advocates who appeared before it and the constitutional and procedural arguments they made. Because Gavel Grab can’t aggregate better than others that have already done so, why not check out the How Appealing law blog or SCOTUSblog for scores of links to articles, analysis and commentary.

The historic arguments this week involved challenges to Proposition 8, a California law barring same-sex couples from marrying, and to a part of the federal Defense of Marriage Act (DOMA) that denies federal benefits to gay or lesbian couples who are married (see Gavel Grab).

A section of the federal Defense of Marriage Act that denies federal benefits to same-sex couples who are married came under skeptical questioning from a five-person majority of the Supreme Court’s nine justices on Wednesday.

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” said Justice Anthony Kennedy, believed to be the decisive vote on the divided court, according to the New York Times.

Justice Kennedy suggested there are “risks” that DOMA, as the federal statute is called, interferes with the traditional authority of the states to define marriage, Reuters reported.

Justice Ruth Bader Ginsburg said a two-tiered kind of marriage system exists under DOMA. There is “full marriage” for some couples under it and “skim-milk marriage” for others, she said, according to the Los Angeles Times.

Early news media reports speculated heavily that if the court reaches a decision on the merits of the case, the challenged part of DOMA would be struck down, given the questions raised by Justice Kennedy and the court’s four liberal justices.

When the court heard oral arguments on Wednesday in United States v. Windsor, it was the second day of emotional and nationally watched cases involving the constitutionality of marriage for gay men and for lesbians. On Tuesday, the court heard a challenge to California’s Proposition 8, barring marriages for couples of the same sex (see Gavel Grab). Read more

Famed New York Times Supreme Court reporter Anthony Lewis passed away this Monday at his home in Cambridge, Massachusetts at age 85, reports the New York Times.

Lewis was well known for his coverage of the Supreme Court, and won a second Pulitzer prize in 1963 for his reporting, the article says.

Ronald K.L. Collins, a University of Washington scholar, said Lewis “had an incredible talent in making the law not only intelligible but also in making it compelling.” Read more

A new chapter in America’s legal and social history opened when the Supreme Court heard oral arguments on Tuesday over the constitutionality of marriage for gay men and for lesbians.

According to early news media reports, members of the “cautious and conflicted” court “wondered openly about whether it was time for the court to render a judgment” (Washington Post), and “several justices seemed to have developed a case of buyer’s remorse about the case before them” (New York Times).

The court heard arguments in a challenge to Proposition 8, the California law barring marriages of same-sex couples. On Wednesday, the court will hear arguments over a challenge to part of a federal law that denies federal benefits to same-sex couples who are married.

The blockbuster cases come at a time of increasing popular support for same-sex marriage, according to polling, and an intense media spotlight. They involve a topic so controversial that Iowa voters swept three state Supreme Court justices off the bench in 2010 in retaliation over a unanimous ruling that the Iowa Constitution permits marriage for same-sex couples.

You can view a transcript of the oral arguments from Tuesday by clicking here or listen to audio by clicking here. Read more

The Supreme Court will hear two historic cases on Tuesday and Wednesday involving the constitutionality of marriage for gay men and for lesbians. While a broad constitutional ruling is possible, the court also could find that the cases are not legally ripe for a ruling.

As a flood of news media articles addressed the blockbuster cases, some outlets focused on an array of possible outcomes. A Washington Post article, for example, said the court has “an unusually wide range of options,” said the court may prefer “caution over boldness” and added about the high-profile role of the court:

“[T]he court’s first full examination of whether the right to marry must be extended to same-sex couples puts on full display the justices’ official responsibility as arbiter of the Constitution, as well as its unofficial role as interpreter of the nation’s readiness for social change.”

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The impact of the Supreme Court on Americans’ lives is once again getting stepped-up news media attention, on the eve of oral arguments next week involving the constitutionality of marriage for gay men and for lesbians.

The cases are so compelling and historic for some spectators that they started lining up outside the high court in Washington, D.C. on Thursday night, SCOTUSblog reported; oral arguments begin on Tuesday.

A Reuters article said the justices will hear arguments “on one of the most politically charged dilemmas of the day, bound with themes of religion, sexuality and social custom,” and it noted the comparisons have been drawn to Roe v. Wade, “one of the court’s most defining cases in the past 40 years.”

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When the nation’s highest court hears two historic cases next week about marriage for same-sex couples, a veteran legal journalist asks aloud: “Will the Supreme Court be guided by polls about same-sex marriage?”

Lyle Denniston poses the question at the National Constitution Center blog, after a Washington Post report of a poll showing public support for the legal marriage of same-sex couples at an all-time high, a 58-36 margin.

Denniston says the court isn’t cloistered, but its decisions won’t be guided by popular polling. In Alexander Hamilton’s time, he explains, “The concept of a truly independent judiciary proceeded–then as now–from an idealistic conception of judicial detachment from the shifting winds of politics. If a court is to have the awesome power to strike down laws passed by the people’s elected representatives, it had better not be perceived as just another politically-driven body–and polls are no more than political expressions.” Read more

The Obama administration will appeal to the U.S. Supreme Court a recent lower-court ruling that Obama overstepped constitutional boundaries when he made several recess appointments to the National Labor Relations Board, in order to overcome Republican filibustering.

The appeals court ruling “called into question nearly two centuries of recess appointments by presidents of both parties,” a New York Times article said. Other coverage included Washington Post, ”NLRB will petition Supreme Court over Obama’s recess appointments;” Bloomberg, “Obama to Ask Supreme Court to Settle Recess-Power Dispute;” and Associated Press, “Labor board to appeal recess case to Supreme Court.”

In a public appearance in California, Supreme Court Justice Anthony Kennedy said it is important for members of Congress to do more to compromise, so that the government’s checks and balances may be preserved.

He suggested that there is a power shift to the high court, the Associated Press reported. When reporters asked if he saw the court making decisions on too many issues that could be decided by Congress, he replied:

“I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”

“And I think it’s of tremendous importance for our political system to show the rest of the world – and we have to show ourselves first – that democracy works because we can reach agreement on a principle basis.”

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