All posts by Chris Schmidt

Is Same-Sex Marriage Coming Back to the Supreme Court This Term?

We know same-sex marriage is coming back to the Supreme Court. What we don’t know is when.

The lineup of cases for the Court’s upcoming term is rather light on cases that really capture public attention. There are plenty of interesting cases on tap, but no real blockbusters. If the justices are interested in livening up a relatively quiet term at the Court, adding a same-sex marriage case would do the trick. But do the justices—or at least the four justices required to grant cert—feel the time is at hand to take on this issue again?

At this point, we’re all reading the tea leaves.

Since it’s likely that Justice Ginsburg will play a particularly influential role in deciding when the justices take up the issue, her recent comments have been the object of much attention. For a while, she seemed to be signaling her concern that the Court needed to be cautious on the issue. But this summer she gave an interview in which she was almost enthusiastic about the possibility of the Court taking on gay marriage. The Court won’t “duck” the issue as they did interracial marriage in the 1960s, she explained, predicting that the Court will decide the issue by June 2016, perhaps sooner. Recently, however, Justice Ginsburg seemed to back off a bit, suggesting that the Court should wait for a split among federal appeals courts. (All the cases currently pending before the Supreme Court involve appeals of rulings that have struck down gay marriage bans.) Until then, there is “no need for us to rush.” She said that people should keep an eye on the Sixth Circuit, which will soon issue a ruling in a same-sex marriage challenge.

The Supreme Court currently has seven cases from three different federal circuit courts from which to choose. These cases involve gay marriage bans in five different states (Virginia, Utah, Oklahoma, Wisconsin and Indiana). Both winning and losing lawyers in these cases are asking for Supreme Court review.

On Thursday the Court added a number of new cases to the docket, but no gay marriage cases were among them. Some commentators are still confident that this is the term for the big gay marriage case. And so we wait.

Justice Sotomayor’s First Oral Dissent

On Tuesday, for the first time in her five years on the Supreme Court, Justice Sotomayor read a dissent from the bench. This was in Schuette v. Coalition to Defend Affirmative Action, the case in which the six-justice majority upheld Michigan’s ban on racial preferences in its public universities. Oral dissents, as a relatively unusual occurrence, can generate increased attention to a dissent. And a justice’s first oral dissent can be a particularly notable event. For example:

  • Justice Scalia’s first oral dissent came in Morrison v. Olson (1988), a 7-1 ruling in which the Court upheld the law creating an independent counsel. Justice Scalia recently referred to this decision upholding “a terrible erosion of presidential power” as his most “wrenching” case.
  • Justice Breyer’s first bench dissent came in United States v. Lopez (1995), decided during his first term on the Court. In Lopez the Court, for the first time since the New Deal, struck down a federal law as beyond the reach of the Commerce Clause.
  • Justice Thomas liked the idea of an inaugural oral dissent so much that he tried to do it twice. His first bench dissent came in Stenberg v. Carhart (2000), in which the majority struck down Nebraska’s “partial-birth abortion” ban. Then, six years later, he opened his oral dissent in Hamdan v. Rumsfeld, a case involving the rights of prisoners held at Guantanamo, by announcing that it was the first time he had ever read a dissent from the bench.

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

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