It has been a remarkably exciting opening week of the new Term at the Supreme Court. The biggest news came right at the opening “Oyez.” With most Court watchers confidently predicting that this was going to be the term when the justices squarely faced the constitutionality of same-sex marriage bans, the justices announced at 9:30 am on Monday morning that they were going to take a different approach. The Court denied review of the seven pending same-sex marriage cases. Since each of these cases involved federal appeals court decisions that had recognized a constitutional right to same-sex marriage, the effect of this monumental decision not to decide was to strike down same-sex marriage bans in a large swath of the country.
This non-decision amounted to the strongest signal the Court has given to this point that a majority of the justices believe the Constitution prohibits states from prohibiting same-sex marriage. It also brings same-sex marriage to states in which there is considerable opposition to same-sex marriage. Prior to this point, state legislatures and courts had legalized same-sex marriage in 19 states. After Monday’s Court order, the number has reached 24 and, counting all the states covered by the three federal circuits affected by Monday’s order, will soon reach 30 states. Many of these newly added states have strong conservative leanings. In response, some of the affected states have given up the fight against same-sex marriage, while others are vowing to fight on. Then, on Tuesday, the U.S. Court of Appeals for the Ninth Circuit struck down prohibitions on same-sex marriage in Idaho and Nevada. As a result, the total number of states in which same-sex couples have or will likely soon have the right to marry is now at 34.
Tuesday’s Ninth Circuit decision led to some interesting events, including some embarrassment, at the Supreme Court. Idaho immediately filed at the Supreme Court a request for a stay, which Justice Kennedy—as the Justice responsible for these kinds of requests from the Ninth Circuit—granted. This pro forma decision had the effect of temporarily halting the granting of marriage licenses to same-sex couples in Idaho. Granting a stay in this situation is standard practice for the Court, and, in light of Monday’s actions, it will likely only prove a temporary delay in Idaho’s acceptance of same-sex marriage. This was not the end of the story, however. An apparent mix-up at the Court resulted in the stay being applied to Nevada as well, despite the fact that Nevada had not requested a stay and was already starting to issue marriage licenses to same-sex couples. The Court quickly fixed the mistake, but not before Nevada halted issuing marriage licenses to same-sex couples for a day.
The other big issue that the Court has been dealing with this week is voting rights. Partly in response to the Court’s 2013 decision in Shelby County, in which the Court struck down a key section of the Voting Rights Act of 1965, various states have passed new voting regulations. With a new round of elections looming, legal challenges to these regulations have been working their way through the courts at high speed, and the Supreme Court has weighed in on several of them. On Wednesday, the Court issued an unsigned order that put back into effect certain voting regulations that North Carolina had implemented but that a federal appeals court had blocked. The court found that the regulations, which prohibited same-day registration and the counting of votes cast in the wrong precinct, disproportionately harmed African American voters. Dissenting from the Court’s order were Justices Ginsburg and Sotomayor. On Thursday, the Court came out the other way in a challenge out of Wisconsin, blocking a photo-identification requirement the state recently passed. Other cases are still pending review at the Court.
The Court was also hearing arguments in some interesting cases this week. On Tuesday, the Court heard arguments in a religious freedom case involving a man serving a life sentence in an Arkansas prison who wants to grow a beard. (See my summary of the case here.) Oral arguments seemed to be strongly in favor of the prisoner’s claim.
On Wednesday, the Court considered the question of whether the time that retail or warehouse employees spend going through security checks must be recognized as time on the clock. If so, the employees may be due overtime pay. The businesses countered that this time is analogous to the time an employee spends commuting to work, and therefore is not part of the paid workday. Although a rather dry, technical question, the resolution of this issue has huge financial consequences for large businesses like Amazon that routinely require employees to stand in security checks at the end of the day—sometimes for as long as 25 minutes—to prevent theft of merchandise.
The Court on Wednesday also considered a case about whether jurors should be allowed to testify about their deliberations. Adam Liptak reported in the New York Times that oral arguments in the case were unusually one-sided, with the lawyer arguing that juror testimony should not be allowed receiving almost no questions.
So there you have it—an historic opening week to the Supreme Court Term. Onward.